Summary: Mr X complained about how the Council decided what contribution his mother, Mrs Y, should make towards her residential care costs. The Council was at fault in how it considered Mrs Y deprived herself of assets and whether it should disregard the value of her property from its financial assessment of her care costs. This caused Mr X and his brother uncertainty. The Council has agreed to produce a template to remind staff they must set out their rationale for deciding someone has deprived themselves of an asset. It also agreed to review its decisions where it received complaints about a deprivation of assets or property disregard decision since January 2020. It will also apologise, make a payment to Mr X and his brother and reconsider its decision on whether Mrs Y was eligible for a property disregard.

The complaint

1. Mr X complained on behalf of his mother, Mrs Y and his brother, Mr W. Mr X complained the Council:

• failed to properly consider whether Mrs Y had deprived herself of assets when she put her home into a trust with Mr W;
• did not properly consider if Mrs Y was eligible for a mandatory or discretionary property disregard;
• pressured him into putting Mrs Y’s home up for sale to afford her care fees and did not properly explore ways she could defer payment; and
• failed to carry out an impartial investigation into his complaint.

2. Mr X says this means Mrs Y paid care costs she should not have and Mr W was at risk of homelessness. He says this caused Mr X and Mr W significant distress.

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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. 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)
5. 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)
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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How I considered this complaint

7. I have considered:
• all the information Mr X’s representative provided on his behalf and discussed the complaint with them;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.

8. Mr X and the Council had an opportunity to comment on my draft decisions. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Financial assessments

9. Councils have the power to meet the care needs of people living in their area. The Care and Support (Charging and Assessment of Resources) Regulations 2014, and the Care and Support Statutory Guidance 2014 (“the Guidance”) set out the rules on how councils can charge for care services.
10. The Guidance says anyone with over the upper capital limit (currently £23,250) may have to pay the full cost of their care. Capital includes the money invested in a property.

Deprivation of assets

11. Councils may consider a resident has deliberately deprived themselves of an asset to reduce the charges they are asked to pay. The council should consider:
• why the person deprived themselves of an asset; and
• the timing of that deprivation.
12. Having considered the facts the council may decide to treat the resident as still owning that asset.

Property disregards

13. When a person moves into a care home, the value of their property is disregarded for the first twelve weeks of their stay when the council calculates if they should fund their own care.
14. Annex B of the Guidance says that after the twelve week disregard, councils must disregard the value of a person’s home under certain circumstances. This ‘mandatory disregard’ applies where the person is no longer living in the home but it is the main home of the following people:
• a partner, former partner or civil partner except where they are estranged;
• a lone parent who is the person’s estranged or divorced partner; or
• a close relative (including son) who is either 60 or over, a child of the resident aged under 18 or incapacitated.
15. Councils may use their discretion to apply the disregard in other circumstances. This is called a ‘discretionary disregard’. Councils should consider each case on its circumstances to balance its discretion with ensuring the person’s assets are not maintained at public expense. The Guidance gives an example of when a discretionary disregard may be applicable. It says a valid reason is where the home is the main residence of someone who has given up their own home to care for the person who is now living in residential care.
16. The Council’s criteria says it will apply a property disregard where the person living in the home is:
• the husband, wife, civil partner or someone the resident lives with as a partner;
• the resident’s ex-husband or wife, ex-partner or civil partner with a child under 18 who lives with them;
• a close relative who is over 60;
• an adult with a disability who needs (but may not be receiving) care;
• a child of the resident who is under 18; or
• a full-time carer or someone of pensionable age who gave up their home to come and live with the resident to care for them and has no property of their own.

The Council says its policy is a combined mandatory and discretionary disregard policy.

Deferred payment agreements

17. Deferred payment agreements (DPA) are designed to prevent people from being forced to sell their home to pay for their care. There are two types of DPA; traditional and loan-type.
18. Traditional agreements are where a council pays the care home directly and agrees to defer the payments due to it. They are used where the council arranges the care on behalf of the person. Loan-type agreements are for people who arrange their care directly with the care home.
19. Once a DPA agreement comes to an end, or the person receiving care dies, their home is sold and the proceeds used to repay the council.
20. When discussing a DPA with a person receiving care or their family, councils must set out a range of information about the scheme. The Guidance details what councils must share, including administration fees, interest, reasons the council may stop deferring amounts and how the agreement may affect the person’s income and benefits.

Complaints handling

21. The Council has a one stage complaints process for adult social care. It says complaints are considered by the senior manager, who has knowledge of the subject area.

What happened

22. Mrs Y lived in her home with her son, Mr W. Mr W had lived with his mother long-term and was in his late 50s. From May 2019, the Council arranged for Mrs Y to receive care at home.
23. In January 2020, Mrs Y moved into a care home for a short stay. The Council contacted Mr X to arrange a new financial assessment and confirmed with the Land Registry that Mrs Y’s property was registered in her name. At the end of the month, the Council wrote to Mr X and asked for information on Mrs Y’s finances. It included its ‘charging booklet’ which set out how it calculated charges for people living in a care home. This included summary information on property disregards, deprivation of assets and DPAs and a link to get more information.
24. In mid-February 2020, Mrs Y began the process of moving her property into a trust and applied to the Land Registry to transfer the home into her and Mr W’s names.
25. The Council carried out a financial assessment at the end of the month. The Council said Mr X stated he thought Mrs Y would be best placed living in a care home. The Council recalls it told Mr X:
• if Mrs Y went into residential care she would have to pay for her care in full;
• the property disregard was not applicable as Mr W was not an ‘eligible person’ according to its criteria;
• if Mrs Y put the house in trust, the Council would likely consider it deprivation of assets; and
• about the possibility of a DPA.

The Council’s records of that conversation, made at the time, are sparse and only state Mr X ‘came into civic [office] for a visit 27.2.2020 explained [residential] costs’.

26. In March 2020, on the advice of his solicitor, Mr X told the Council he did not think the trust was deprivation of assets as it was created so Mr W could continue living there if Mrs Y went into care. He also asked the Council to consider if it could apply a discretionary disregard as Mr W had lived there for seventeen years, was turning 60 the following year and had diabetes and cancer. He would struggle to find alternative accommodation.
27. Mrs Y moved into a long stay care home in mid-March.
28. The Council responded to Mr X in mid-May. It said Mr W did not count as an ‘eligible person’ according to its criteria for a property disregard so it could not exercise its discretion.
29. The Council did a new search with the Land Registry. It now showed Mrs Y and Mr W as owners of the property.
30. Mr X’s solicitor contacted the Council in early June to explain why the trust was set up. They said it was to reflect the financial contribution Mr W made to the home in the years he had been living there. The solicitor also said that regardless of whether the trust was deprivation of assets, they felt a discretionary disregard could apply because of Mr W’s circumstances. They said Mr W was now receiving treatment for cancer and had no steady work. They again asked the Council to consider a discretionary disregard. The Council told me that in response to the email from Mr X’s solicitor, it checked if it was providing care for Mr W. It was not and therefore decided he was not an eligible person for the purpose of a property disregard.
31. Records of internal emails at the Council show it considered the timing of the trust suggested deprivation of assets, but it noted it needed to think about Mrs Y’s intent.
32. The Council emailed Mr X in mid-June to say it had decided the formation of the trust for the property was a deprivation of assets. It said he did not need to move out or sell the property as a loan-type deferred payment agreement could be set up to pay Mrs Y’s care fees. As part of that agreement Mr W would pay rent to the Council. The Council has since accepted it offered the wrong type of DPA, it should have referred to a traditional type, and should not have mentioned Mr W paying rent. Mrs Y did not sign a DPA agreement. Mr X’s solicitor replied to ask the Council again to consider if it should apply a discretionary disregard.
33. Around that time, Mr X put Mrs Y’s house up for sale as he says she could not pay her care costs otherwise.
34. In late June the Council emailed Mr X to say a decision on discretionary disregard would not be considered because it had decided the trust that Mrs Y set up was a deprivation of assets. In addition, it said a decision on discretionary disregard ‘is no longer valid’ because the family had put the house up for sale and an offer had been made. Mr X’s solicitor explained the family no longer wanted to accept the offer on the house and repeated their request for the Council to consider a discretionary disregard. The Council said it had nothing further to add.
35. In late June, Mr X’s solicitor complained to the Council. The team manager who responded previously answered the complaint. They confirmed the Council's previous position.
36. In November 2020, Mrs Y moved into another care home and Mr X halted the sale of her home. Mrs Y died in early 2021.
37. In total, Mrs Y paid around £1280 in contributions towards her care where the Council included the value of her property in its calculation.

Findings

Deprivation of assets

38. The Ombudsman cannot question a council’s decision if it is made without fault. The Guidance says that to decide someone has deprived themselves of an asset, councils must consider the timing and intention of the deprivation. The Council properly considered the timing of the trust and decided Mrs Y had an expectation of care. It was not at fault.
39. However, it failed to record how it considered Mrs Y’s intentions to deprive assets in creating the trust. Mr X and his solicitor explained the rationale for the trust and Council records show it was aware it needed to consider Mrs Y’s intentions. There is no record it did this, which was fault. As Mrs Y has now died the Ombudsman cannot ask the Council to reconsider its decision to ensure there are proper records. The injustice is that Mr X and Mr W are uncertain about what decision the Council would have made but for the fault.

Property disregards

40. The Guidance states a person is eligible for a mandatory disregard if they have a close relative living in their home who has been there since before the person went in care and that person is between 18 and 59 and incapacitated. The Guidance is clear there is no set definition for incapacity but suggests it could include people who are eligible for incapacity or disability benefits. People who do not meet these requirements may be eligible for a discretionary disregard.
41. The Council's combined mandatory and discretionary property disregard policy says a person is eligible if they are an adult with a disability who needs care. It does not set out whether this criterion is ‘mandatory’. It is therefore unclear under what circumstances a person’s situation will be considered for a discretionary disregard. The Council was at fault for having a policy on property disregard that was unclear about what parts were mandatory and what parts were discretionary.
42. The Council makes enquiries to determine if the person living in the home is a disabled adult who needs care. It recognises some people may need care but do not receive it. The Council checked if it was providing Mr W with care and found it was not. On that basis, it decided Mr W was not an eligible person. It did not consider whether Mr W needed, but was not receiving, care, based on its policy. The Council failed to properly consider if Mr W was an eligible person, especially after the family told the Council about his health issues. It should have made further enquiries about this to see if he needed care. This leaves the family with some uncertainty. However, I note that Mr W was not receiving incapacity or disability benefits at the time and did not have a private care package which may have entitled him to a mandatory disregard.
43. The Council was also at fault in how it considered whether Mrs Y was eligible for a discretionary disregard. The Council said it could not consider a discretionary disregard as Mr W was not an eligible person according to its criteria. It also refused to consider one because it decided Mrs Y had deprived herself of assets and later, because Mr X put Mrs Y’s house up for sale. This was fault. The discretionary disregard should have been a separate decision independent of the factors the Council listed. Again, this leaves the family with some uncertainty.
44. I cannot know whether the Council would have agreed to a property disregard for Mrs Y if it had made the decisions without fault. Therefore, I have recommended the Council reconsider both decisions, taking into account all the relevant matters. I also consider the fault may have affected other people who had requested a property disregard, so I have made a recommendation about this issue.

Deferred payment agreements

45. Mr X says the Council pressured him to sell Mrs Y’s home in the financial assessment in February 2020 and did not properly discuss a DPA until June. The Council sent Mr X an information leaflet in January 2020 which included information about DPAs and said it discussed the DPA further in its financial assessment in February. It does not have a record of that meeting so I cannot say what emphasis the Council placed on a DPA or selling Mrs Y’s home. Where a council expects to rely on having given a person accurate information in a meeting, we expect it to make suitable records. However, I do not consider this is sufficient to make a finding of fault. In addition, I note Mr X had access to a solicitor, who could have given advice on DPAs and whether he should sell Mrs Y’s house.
46. In June 2020, the Council offered a loan-type DPA and said as part of that arrangement, Mr W would pay rent. The Council has accepted this information was wrong. It should have suggested a traditional DPA instead and should not have referred to Mr W paying rent. It was at fault but did not cause Mrs Y or Mr W any injustice as Mrs Y did not agree to the DPA.

Complaints handling

47. Mr X complained the Council did not carry out an impartial investigation into his complaint because the formal response was sent by the team manager he previously had contact with.
48. The team manager who answered Mr X’s complaint had not made any of the decisions complained about, so I do not consider they were an unsuitable person to respond to the complaint. The Council acted according to its policy and was not at fault.

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Agreed action

49. Mrs Y has now died so I cannot remedy any personal injustice to her. However, I consider the faults identified in this decision caused Mr X and Mr W uncertainty and some may affect other people living in the Council's area.

50. Within one month of the date of this decision, the Council will apologise to Mr X and Mr W for the uncertainty caused because of its failure to:
• record if it had properly considered if Mrs Y intended to deprive herself of assets;
• properly consider if Mr W was a disabled adult who needed care; and
• make a separate record of its consideration of whether Mrs Y may be eligible for a discretionary disregard;
51. Within one month of the date of this decision the Council will also:
• pay Mr X £200 and Mr W £200 to recognise the uncertainty they experienced as a result of that fault; and
• reconsider and record whether Mrs Y was eligible for a mandatory or discretionary property disregard, based on the information available to the Council at the time it made its decision. If it decides it should have disregarded Mrs Y’s property, the Council will recalculate what she should have paid towards her care and reimburse her estate the difference between that value and what she paid.
52. Within three months of the date of this decision, the Council has agreed to produce a template deprivation of assets decision letter which reminds staff they must set out their rationale for deciding a person has deprived themselves of an asset.

53. Within three months of the date of my final decision, the Council will also:
• remind staff they must consider whether a person needs but is not receiving care when deciding if they are a disabled adult who needs care for the purpose of a property disregard; and
• remind staff deprivation of assets and property disregards are separate matters and they must consider a discretionary disregard on its own merits and should record their decision reasons;

54. The Council has agreed to update its policy on property disregards to reflect what is mandatory and what is discretionary as set out in the Care and Support Statutory Guidance or explain why it has departed from the guidance. It will do this by April 2022.
55. The Council will also review any complaints about its decisions on deprivation of assets or property disregards from January 2020 to the date it completes the recommendation in paragraph 53. It should only review complaints about deprivation of assets where the person who owned the assets currently has capacity. If the Council identifies flaws in its decision making, it should reconsider those decisions and write to the complainants. Where the Council changes its decision and finds it charged somebody more for their care than it should have, it will reimburse the person the relevant amount. It will do this within three months of the date it completes the recommendation in paragraph 54.

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Final decision

56. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman