London Borough of Hillingdon (20 002 529)

Category : Adult care services > Charging

Decision : Not upheld

Decision date : 01 Mar 2021

The Ombudsman's final decision:

Summary: Miss X complained the Council refused to backdate her late mother’s financial assessment to disregard her property. The Council was not at fault. It carried out Mrs F’s financial assessment without fault when it decided not to disregard her property in 2018. The Council disregarded the property from December 2019 onwards after Miss X provided it with new information. However, there was no obligation for the Council to backdate this to 2018.

The complaint

  1. Miss X complained the Council failed to disregard her late mother’s Mrs F’s share of her property when it carried out her financial assessment before she moved into a care home in November 2018.
  2. Miss X said Mrs F jointly owned the property with her other daughter, Ms M, who claimed benefits which classed her as ‘incapacitated’ for the purpose of property disregard. Miss X said the Council gave her misleading advice which led her to believe Ms M’s benefits did not qualify for property disregard.
  3. As a result, Miss X said Mrs F was classed as full cost payer and accrued care fee arrears of £27,000 which is left for Miss X to handle. Miss X wants the Council to revise Mrs F’s financial assessment from November 2018 and disregard the property from that date.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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

  1. I spoke to Miss X about her complaint and considered information she provided.
  2. I considered the Council’s response to my enquiry letter.
  3. I considered the Care and Support Statutory Guidance.
  4. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

The Care Act 2014 and charging

  1. In 2014, the Government introduced the Care Act. This legislation replaced all previous guidance about how councils assess and provide care for adults in need. It includes guidance on charging for care.
  2. The Care Act states councils have discretion to charge people for the care they receive. If a council decides to charge for care, it must complete a financial assessment. If a person refuses a financial assessment they must self-fund their care.
  3. Councils can consider both capital and weekly income when completing financial assessments. If a person needs care to stay in their own home, the means test will not include the value of their property.
  4. Persons who have over £23,250 of eligible capital will be expected to pay for the full cost of their care home fees. However, once their capital has reduced to less than £23,250, they only have to pay an assessed contribution towards their fees.

Deferred Payment Agreement

  1. A person needing residential care can enter into a “deferred payment agreement” with the 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

  1. 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
  2. The guidance states that the meaning of ‘incapacitated’ for the purposes of disregard is not closely defined. It states however it will be reasonable to conclude that a relative is incapacitated if one of the following conditions apply:
    • the relative is receiving one (or more) of the following benefits: incapacity benefit, severe disablement allowance, disability living allowance, personal independence payments, armed forces independence payments, attendance allowance, constant attendance allowance, or a similar benefit.
    • The relative does not receive any disability related benefit but their degree of incapacity is equivalent to that required to qualify for such a benefit. Medical or other evidence may be needed before a decision is reached.

Discretionary disregard

  1. The guidance says the 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.

What happened

  1. Mrs F and her daughter Ms M lived in a house which they both jointly owned. In May 2018 the Council arranged for Mrs F to move into a care home after she had a fall at home.
  2. The Council carried out a financial assessment for Mrs F and assessed her as a full cost payer due to the value of her share in the house. The Council disregarded the value of Mrs F’s share of the home from her financial assessment for the first 12-weeks of her stay in the care home.
  3. In September 2018 the Council contacted Miss X who had Power of Attorney over Mrs F’s finances. It sent her information about the Deferred Payment Scheme (DPS) to consider when the 12-week property disregard period ended. The Council also provided her with the DPS application form and a guidance leaflet.
  4. Records show Miss X contacted the Council and said she had received the DPS information. Miss X needed Ms M’s consent to progress with the application however Ms M was unsure whether she wanted to join the scheme.
  5. As Mrs F was a full cost payer and Miss X had not progressed the DPS application it stopped paying Mrs F’s care fees at the end of September 2018. Miss X said she paid Mrs F’s care fees using her pension and benefits. Miss X paid a top up fee however she said this was not enough to cover all of the fees.
  6. In November 2018 Miss X sent the Council a completed DPS application. The Council wrote to Mrs F and Ms M’s mortgage company to ask for permission to put a charge on the property in order to progress the DPS application.
  7. During November the Council said it received contact from Ms M about the DPS application. The Council said Ms M was not willing to give her consent to progress the application because there was already a charge on the property and she did not want a second one. The Council said Ms M would seek legal advice.
  8. The Council said it spoke to Miss X again and discussed other options. The Council’s case notes state it asked Miss X whether Ms M was in receipt of any qualifying benefits so it could consider disregarding the property. Miss X said Ms M had suffered with her mental health for several years but was unsure what benefits she claimed. The Council said it advised Miss X to seek advice on the matter and to contact it again once she knew which benefits Ms M claimed.
  9. Records show Mrs F remained at the care home until September 2019 when she was admitted to hospital. On her discharge from hospital Mrs F moved into a different care home which the Council arranged.
  10. In November 2019 Miss X received a large invoice for outstanding care fees from the care home Mrs F lived in until September 2019. Miss X sought independent advice on the Council’s decision not to disregard Mrs F’s share of her property when it carried out the financial assessment in 2018. The report shows Ms M claimed Employment and Support Allowance (ESA) due to her mental health and was already in receipt of this benefit when the Council carried out Mrs F’s financial assessment in 2018. The report said this meant Ms M was classed as ‘incapacitated’ for the purpose of property disregard because ESA meets the criteria set out in paragraph 16. It said therefore Miss X should ask the Council to reconsider its decision not to disregard the property when it carried out Mrs F’s financial assessment in 2018.
  11. Miss X contacted the Council and provided it with information about Ms M’s ESA benefit claim and asked the Council to disregard Mrs F’s property from 2018 onwards. The Council said it said it had no records to show Miss X submitted any support evidence in 2018 regarding either Ms M’s medical condition or her benefit claims. The Council said it asked Miss X at the time to seek advice about the matter and provide it with evidence of Ms M’s benefits however it heard nothing further from her.
  12. Miss X said the Council told her in 2018 that ESA was not a benefit recognised for a property disregard, therefore, she did not follow the matter up any further. Miss X said the Council now had the relevant evidence to prove Ms M was claiming ESA at the time which showed it should have disregarded the property at the time.
  13. The Council said based on the information Miss X provided it with in 2018 it was not possible to consider a property disregard. Therefore, the Council said it saw no reason to justify backdating funding to cover the outstanding fees.
  14. Miss X complained to the Council about the matter. Miss X reiterated that she was misled by the Council that ESA was not a valid benefit for a property disregard. Miss X said the £18,000 debt from the care home was fees the Council should have paid.
  15. The Council send Miss X a final response on the matter which reiterated its position that Miss X did not provide it with evidence of Ms M’s illness and benefit claim at the time.
  16. Records show Council disregarded Mrs F’s property from the financial assessment from December 2019 onwards. Mrs F died in March 2020 and the Council sent Miss X an invoice for £9,000 outstanding care fees for the period September to December 2019, prior to it agreeing to disregard her property.
  17. Miss X remained unhappy with the Council’s handling of the matter and complained to us.

My findings

  1. Miss X said she was misled by the Council in 2018 when it told her that ESA did not meet the criteria for property disregard. I cannot say with any certainty what information the Council gave Miss X on the telephone about qualifying benefits because there are no records or recordings of it. However, the evidence does show that it told Miss X to seek advice about the matter which by her own admission she did not do. Therefore, the Council did not have the relevant evidence about Ms M’s benefits to decide about whether Mrs F qualified for a property disregard. It carried out Mrs F’s financial assessment based on information available to it at the time. So, there was no fault with how the Council carried out Mrs F’s financial assessment and its decision not to disregard the property in 2018.
  2. Records and correspondence show the Council provided Miss X with relevant information about the DPS however Mrs F and Ms M’s mortgage company refused to put a second charge on the property. However, that was not due to Council fault. There was no fault with the Council’s actions with regards to the DPS.
  3. Once the Council became aware of Ms M’s circumstances and the fact she was claiming ESA in December 2019, it began disregarding the property. From December 2019 onwards Mrs F paid only an assessed contribution towards her care fees. Records show the Council considered Miss X’s request to backdate the property disregard however declined to do so. There is no obligation for the Council to backdate the property disregard and revise Mrs F’s 2018 financial assessment. There is no fault in the Council’s decision not to backdate the property disregard to 2018.

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Final decision

  1. I completed my investigation as there was no evidence of fault.

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Investigator's decision on behalf of the Ombudsman

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