Summary: Ms X complains about the Council’s refusal to disregard the value of her late mother’s home when assessing care charges, resulting in Ms X losing her home and causing distress. We find no fault in the Council’s decision making but find delay in the process causing injustice. We recommend the Council provides an apology, payment and acts to prevent recurrence.

The complaint

1. Ms X complains about the Council’s refusal to disregard the value of her late mother’s property when assessing her contribution to care charges. Ms X fears losing her only home, leaving her homeless and says she has suffered distress and uncertainty.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I spoke to Ms X and I reviewed documents provided by Ms X and the Council. I gave Ms X and the Council the chance to comment on a draft of this decision and I considered the comments provided.

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What I found

Law on property disregards

6. The Department for Health and Social Care publishes statutory guidance on the Care Act 2014 which councils must follow.
7. When deciding how much a person will have to contribute towards their care costs the council will consider whether to take into account the value of their home.
8. A council must disregard the value of the person’s home where the person no longer occupies the property but it has been continuously occupied by a relative aged 60 or over, as their main or only home, since before the person went into a care home.
9. If unclear if a relative is occupying a property as their main or only home, the council should undertake a factual inquiry weighing up all relevant factors. A council should consider:
• does the relative currently occupy another property?
• if the relative has somewhere else to live do they own or rent the property?
• if the relative is not physically present is there evidence of a firm intention to return to or live in the property?
• where does the relative pay council tax?
• where is the relative registered to vote?
• where is the relative registered with a doctor?
• are the relative’s belongings in the property?
• is there evidence the relative has a physical connection with the property?
10. A council also has discretion to disregard the value of a person’s home. However, the council will need to balance this discretion with ensuring a person’s assets are not maintained at public expense.

Council policy on discretionary disregards

11. The Council’s publishes a guidance document setting out its decision making process. This shows the Council will collect the information the Discretionary Property Disregard Panel needs to decide any request using its application form.
12. There is no right to appeal the Panel’s decision, but if significant new information later comes to light that supports the original application a person can make a fresh application.
13. The Panel will refer to the following in deciding whether to exercise discretion:
• one or more people are still living in the house;
• the length of time they have been in residence;
• the closeness of the relationship between those in residence and the person who is now in a care home;
• any legal/ financial/ beneficial interest in the property by the other person(s), how that interest was obtained and why it was obtained, and the value of any beneficial interest;
• the extent to which the person has previously provided care to the service user; and what if any, savings there have been to the public purse by providing such support;
• the recent dependence of the adult who has now moved to permanent residential care on the other person(s) for the provision of care;
• whether the other person(s) has given up a home to care for the service user;
• whether the other person(s) has any other legitimate and/or compelling reason to need to live in the property; and
• whether a Deferred Payment Agreement will assist the needs of the other person(s) by delaying the sale of the property.

What happened

14. Ms X says she gave up her home and moved in with her mother from August 2016 to May 2017, providing her care and support. She moved to a rental property in May 2017 but continued providing care and support to her mother. In September 2018 her mother had a fall and then needed 24 hour care in place. However, Ms X continued to provide additional support. Ms X turned 60 in September 2018. In November, her mother moved into a care home. In January 2019 Ms X moved back into her mother’s home.
15. On 12 March 2019 the Council asked Ms X for specific information in order to consider a mandatory or discretionary disregard. Ms X provided this the following day.
16. On 12 April the Council told Ms X she did not appear to meet the criteria for a mandatory disregard, with reference to multiple records referring to her mother living alone. I note the Council does not comment on whether it can apply a discretionary disregard.
17. On 24 April Ms X provided further information to the Council in support of either a mandatory or discretionary disregard. Key points included:
• She spent 90% of her time at her mother’s home just before her mother entered the care home and many of her belongings were there
• She lived in the property from August 2016 to May 2017
• She is registered to the same local GP as her mother
• The property is now her main and only home
• She will be homeless if the property is sold
• While assessments record her mother living alone she was often there and was on call day and night
• She stayed in the property between September 2018 and October 2018 to plug gaps in formal care
• She kept the lease on her own property as she expected her mother to return home
• Details of the care she provided
18. On 9 May the Council asked Ms X for more information on the care she provided. It would then ask the Panel to consider the request for a disregard.
19. On 7 June Ms X provided a detailed chronology of the care and support she provided to her mother.
20. On 14 June the Council completed the disregard application form. I note this incorporates information from Ms X about when she lived in the property, the care she provided and how much her mother depended on her. The form also details Ms X’s financial interest in the property and whether there are any other compelling reasons for her to live there, including Ms X’s fear of being homeless.
21. A manager considered the application and supporting documents. They recommended refusal of both disregards. They explained this was not Ms X’s main home before her mother moved into the care home and so the mandatory disregard did not apply. As to a discretionary disregard they noted this was not Ms X’s main home; while Ms X provided a significant amount of care to her mother there was no saving to the public purse and; there was no reason why a deferred payment agreement would not assist.
22. The Council says the Panel considered the application on 30 August 2019. It has provided a further application form which includes the Panel’s decision making. This explains a mandatory disregard applies where a person lived in the home at the time the person entered a care home. Information provided showed this was not Ms X’s main home at that time. Therefore, it could not apply the mandatory disregard. As to the discretionary disregard, it noted the support Ms X provided but considered there was no evidence this would have reduced a funded package of care. Further the evidence showed Ms X was unable to support her mother during a crisis due to work commitments. The Panel therefore decided not to exercise its discretion to provide a discretionary disregard.
23. The Council sent Ms X its decision outcome letter on 20 September 2019. It explained it considered the property was not Ms X’s main home as she had a rolling tenancy at the time; other documents referred to her mother living alone; and she was not registered to pay council tax or vote at her mother’s address. As this was not her main home it could not apply the mandatory disregard. It also refused the discretionary disregard. This was because while Ms X provided some support this did not reduce the amount of privately funded care her mother needed. And, she had been unable to support her mother in a crisis due to work commitments. The Council explained there was no right of appeal but if new significant information comes to light she can make a fresh application.
24. Ms X’s mother passed away in January 2020 and the Council issued an invoice for care fees in February.
25. Ms X complained to the Ombudsman. She said the Council’s decision letter showed no regard to her being made homeless and did not reflect the level of support she provided to her mother. She considered her mother paid less for care up to January 2018 due to her and her sister providing care. Ms X felt the Panel misinterpreted information around a crisis and did not properly take into account or ignored information she provided. Further, that she had no opportunity to provide information other than in response to questions posed and no right of appeal.
26. In further supporting information Ms X said there were two key inaccuracies in the Council’s decision; about where she lived and about the amount of care she provided. Ms X explained she lived with her mother up to May 2017 but was then forced to move out when her mother’s health deteriorated. This was because her mother resisted live in carers when she was present and there was no sleeping space for her in addition to the carers. The Council did not take this into account. Further, its decision letter did not reflect the extensive support she provided to her mother. She is unhappy with the Council’s interpretation of information provided and considers some of its comments are unethical and rooted in sexism.
27. In response to enquiries the Council provided comments on Ms X’s complaint. It explained there were unavoidable delays while gathering sufficient information to inform the Panel decision. However, acknowledged it took some months to conclude the process and decision making. It offered an apology for any stress caused as a result.

Findings

28. On review of the correspondence exchanged, I consider the Council should have asked Ms X for all relevant information to support an application in March 2019. I consider the approach taken by the Council - gathering limited information in stages, caused avoidable delay. There was also a further delay between completion of the application form and consideration by the Panel. I find these delays amount to fault, causing Ms X prolonged distress and uncertainty.
29. On review of the statutory guidance, Council policy and documents provided, I am satisfied the Council gathered sufficient relevant information to inform its decision, including asking Ms X to provide specific information. There is no evidence Ms X asked to provide further information and was refused. I am also mindful Ms X had the chance to provide any significant new information on a fresh application if she wished. I therefore find no fault causing injustice in this regard.
30. The application form contains information on each point the Council must consider under law and policy. It refers to information provided by Ms X, including her living arrangements and the care she gave. The Panel considered this information in reaching a decision. I am therefore satisfied the Council took all relevant information into account and decided in line with relevant law and policy. I acknowledge Ms X is upset about how the Council considered the information and finds its approach sexist and unethical. However, there is no evidence the Council’s decision was influenced by discrimination or sexism. I find no fault in the Council’s decision making process.
31. I would expect the Council to explain any appeals process in the final outcome letter, as it did. Although there is no right to appeal Ms X can seek a fresh application if she has significant new information for the Council to consider.

Agreed action

32. To remedy the injustice set out above I recommend the Council carry out the following actions:
33. Within one month:
• Provide Ms X with a written apology for its delay
• Pay Ms X £150 for distress and uncertainty
34. Within three months:
• Establish a clear process which ensures staff gather relevant information to support a request for any property disregard in a timely manner. Provide the Ombudsman with copy of this process.
35. The Council has accepted my recommendations.

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Final Decision

36. I find no fault in the Council’s decsion making but I find it at fault for delay. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman