Summary: Mr C complained about the Council’s decision to include the value of his mother’s share of the family home when assessing his mother’s contribution to her residential care home fees. Mr C says he could lose his home when the charge on the property under the Council’s deferred repayment scheme has to be repaid and this has caused him and his family unnecessary distress and anxiety. We have found no fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr C, about the Council’s decision to include the value of his mother’s share of the family home when assessing his mother’s contribution to her residential care home fees.
2. Mr C says because of the Council’s fault, he could lose his home when the charge on the property under the Council’s deferred repayment scheme has to be repaid and this has caused him and his family unnecessary distress and anxiety.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and provided an opportunity for comment.

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What I found

The Care Act 2014 and charging

7. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it must follow these rules when undertaking a financial assessment to decide how much a person must pay towards the costs of their residential care.
8. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
9. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
10. The Care Act guidance says where a person has joint beneficial ownership of capital the total value should be divided equally between the joint owners and the person should be treated as owning an equal share. Annex B of the guidance also says the valuation must be the current market value less 10% costs of sale with a precise valuation only being needed if this takes the amount close to the capital limit.

Deferred Payment Agreement

11. A person needing residential care can enter into a “deferred payment agreement” with a council. This lets a person use the value of their home to help pay care home costs. The council does not write the deferred payment off. It is repaid later, usually from the proceeds of the person’s house sale.

Disregarded property

Mandatory disregard

12. The Care and Support Statutory Guidance says if someone enters a care home permanently, the share in their existing (main or only) home is usually considered as capital. The value is usually disregarded from the financial assessment if the person no longer occupies the home, but it is still occupied in part or whole, as their main or only home by:
• the person’s spouse, partner, former partner or civil partner
• a lone parent who is the person’s estranged or divorced partner
• the person’s relative, or member of the person’s family who is
1. aged 60 or over, or
2. the person’s child aged under 18, or
3. incapacitated

Discretionary disregard

13. The guidance says a council may use its discretion to apply the disregard in other circumstances. However, it will need to balance that discretion with ensuring the person’s assets are not maintained at public expense.

Relevant case law

14. Barbara Anne Wilkinson v The Chief Adjudication Officer [2000] EWCA Civ 88. This case involved the valuation of a person’s share of a property to determine whether that person’s capital exceeded the ‘prescribed amount’. In this case it was to decide if they could continue to receive income support. The person argued their share was not worth the market value without the sale of the other share of the property.
15. The judge in this case said the appellant was seeking to 'demonstrate that something is worth nothing’ and dismissed the appeal. The judge said the proper starting point for the valuation is half the market value of the house.

Key events

16. Mr C wrote to the Council on 24 April 2018 to ask it to disregard the family home in full when assessing his Mother’s ability to pay towards her residential care costs. Mr C explained he lived in the family home and his late father’s share of the property had been left in trust to his two children (Mr C and his sister). Mr C further explained he had lived in the property since 1975, paid rent from 1985, had cared for both his late father and mother and had no other property. Mr C wrote again to the Council on 19 May as he had not received a reply.
17. The Council responded to Mr C on 22 June and apologised for the delay. The Council confirmed the property would not be disregarded from the assessment. The Council referred to its charging policy which set out that a property would be disregarded from the assessment if a relative of the person is aged 60 or over, is a child of the resident aged 18 or under or is incapacitated and had occupied the property as their main and only home since before the resident entered the care home. The Council did not consider any of these reasons applied to Mr C’s situation. The Council confirmed Mrs C’s capital would drop below the relevant threshold at the end of September and as the value of the property would be included in the assessment, she would be assessed to pay the full cost of her long term residential care. The Council advised Mrs C would be eligible for a deferred payment agreement at that time. The Council outlined Mr C’s ability to appeal the decision.
18. Mr C appealed the Council’s decision to include the property in the financial assessment through his solicitor on 4 September.
19. The Council’s Complex Case Appeal Panel reviewed the Council’s original decision on 25 September which included consideration of the information provided by Mr C’s solicitor.
20. The Council responded to Mr C’s solicitor on 4 October. The Council noted Mr C’s solicitor accepted the statutory disregards did not apply to Mr C’s situation as he was under 60 years old, but over 18 and not incapacitated but was asking the Council to apply a discretionary disregard. The Council also noted the example used to support such a discretionary disregard from the Care Act guidance was where the property was the sole residence and a person had given up their own home to care for the person who was now in a care home. The Council did not consider this example was relevant to Mr C’s situation as he had not given up his own home as he had lived at the property from 1975 and paid rent at less that a market value more recently and would not have been providing care to his parents from 1975. The Council referred to paragraph 44 of Annex B which stated, “Local authorities need to ensure that people are not needlessly maintained at public expense.” The Council confirmed it had considered the Care Act guidance and Mr C’s circumstances and decided not to use its discretion to disregard the property in his mother’s financial assessment. The Council provided details about its Deferred Payment Agreement Scheme and complaints procedure.
21. The Council subsequently provided Mr C with information about the deferred payment agreement process. Mr C completed a deferred payment agreement application form in February 2019. This gave the current value of the unmortgaged property as being between £240,00 and £260,000 and enclosed estate agent valuations to support this.
22. Mr C remained unhappy about how the Council was treating the family property in subsequent correspondence. The Council wrote to Mr C on 11 December 2019 to confirm receipt of the deferred payment application and that if he still wished to challenge the Council’s appeal decision about disregarding the property, he would need to make a formal complaint.
23. Mr C complained to the Council on 23 January 2020 about its decision not to apply a discretionary disregard of the family home in relation to his mother’s residential care costs. Mr C referred to the Council’s appeal decision and said it was incorrect to say he had only paid rent in the last few years as he had done so for over 30 years. Mr C stated he had also paid some household bills and maintained the property. Mr C also provided further details about his caring responsibilities for both his parents over the years and that he gave up his right to buy or rent his own home in order to provide this care.
24. The Council responded to Mr C on 3 April 2020 to say it would not investigate his complaint as its policy stated complaints should be made within one year of the service being received and referred to the involvement of Mr C’s solicitor in September 2018.
25. As Mr C had disputed some of the information contained in the Council’s appeal decision, I sought the Council’s comments on this additional information and any impact on its previous discretionary property disregard decision. The Council has reviewed the additional information and provided its reasons why this information did not alter its decision.
26. The Council wrote to Mr C on 12 November 2020 in response to some queries and enclosed a revised Deferred Payment agreement. The Council confirmed the agreement would only cover Mrs C’s 50% of the property and provided a copy of the calculation used. This set out that Mrs C’s 50% share of the property was valued at £125,000 less 10% selling costs of £12,500 and the lower capital threshold of £14,250 which left the available equity as £98,250.
27. The Council has confirmed it did not receive the signed Deferred Payment Agreement from Mr C and this is not in place. Mr C advised the Ombudsman via his sister on 17 November that his mother had sadly passed away. The Council would only seek to collect Mrs C’s care debt 90 days after her death.

My assessment

28. I am satisfied the Council’s records show it considered whether to disregard Mrs C’s property in line with the relevant statutory guidance. Mr C and his mother did not meet the criteria for a mandatory disregard. The Council went on to consider whether to apply a discretionary disregard.
29. The Council considered Mr C’s personal circumstances including at appeal but decided there was no justifiable reason why Mr C’s asset (his share of the property) should be maintained at the public’s expense.
30. The Council has considered the relevant guidance and the records show it fully considered whether to disregard the property. Therefore, I cannot say there was fault in how the Council made its decision. In these circumstances, it is not open to the Ombudsman to question the decision the Council has reached.

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Final decision

31. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman