Summary: It was not fault on the part of the Council not to apply the property disregard for Mr X from the date when he became a permanent resident in the care home. Mr X arranged and funded his own placement in the care home and did not ask the Council for assistance until later.

The complaint

1. Mrs A (as I shall call the complainant) complains about the Council’s refusal to disregard the value of her late father’s (Mr X’s) property for the full twelve weeks after he entered residential care. She says it was not possible for them to apply for a disregard of which they were unaware.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the information provided by the Council and by Mrs A. Both the Council and Mrs A had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. 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 has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
6. 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.
7. The Care and Support Statutory Guidance says “A local authority must therefore disregard the value of a person’s main or only home for 12 weeks in the following circumstances:

(a) when they first enter a care home as a permanent resident

(b) when a property disregard other than the 12-week property disregard unexpectedly ends because the qualifying relative has died or moved into a care home”.

The guidance goes on “In addition, a local authority has discretion to choose to apply the disregard when there is a sudden and unexpected change in the person’s financial circumstances. In deciding whether to do so, the local authority will want to consider the individual circumstances of the case.”

8. LAC (2001) 25 stated “Once the council is aware of the resident’s circumstances, any undue delay in undertaking an assessment and providing accommodation if necessary would mean that the council has not met its statutory obligation.
9. Deferred payment agreements are designed to prevent people from being forced to sell their home in their lifetime to meet the cost of their care. By entering into a deferred payment agreement, a local authority agrees to: defer the payment of charges due to it from the adult, for the costs of meeting needs in a care home or supported living accommodation or defer the repayment of a loan to the adult in instalments, to cover the costs of care and support in a care home or supported living accommodation.
10. The Council’s policy on deferred payment arrangements says “The value of an adult’s main or only home is disregarded from their financial assessment for a 12-week period when:

• They first enter into a care (or nursing) home as a permanent resident;
• They are already a permanent resident and their discretionary property disregard ends unexpectedly (for example because their partner who was residing in the property has passed away); or when
• their financial circumstances suddenly change and their funds drop below the current upper capital limit

The Council says its stance on this matter is that 12-week disregard funding is from the date on which a customer, or their representative, contacts the Council.

11. The Council’s charging policy for adults in need of care and support says, “If an individual has been a permanent self-funding resident for less than12 weeks, and their capital has now fallen below the ‘upper capital limit’ level, then they will be entitled to the remainder of the 12 weeks from the date that funding from the County Council is available. It is essential that the date the person became a permanent resident at the home is identified”.

What happened

12. Mr X initially went into the care home for a period of respite care (which he funded himself). Mrs A says she spoke to an officer in the social care team in February after her father suffered a theft at the home, and she explained then his wish to become a permanent resident. She says the Council should have assessed Mr X at that point.
13. On 1 March 2020 Mr X became a permanent resident at the home.
14. Mrs A says she was unable to put his bungalow up for sale as he wished before June 2020 because of the Covid-19 pandemic. She says she telephoned the Council on 6 May to ask for details of a deferred payment arrangement. She says the officer she spoke to explained Mr X would not be eligible for the 12-week property disregard from the date on which he became a permanent resident as the Council was not aware of his circumstances then, but would be eligible from 6 May, the date of the telephone call.
15. The Council wrote to Mrs A on 14 May after completing the financial assessment for Mr X with her over the telephone. The letter confirmed, “(Mr X) is entitled to 2 weeks and 2 days of the 12-week property disregard, due to self-funding his long term stay placement from 1st March 2020”.
16. On 19 May Mrs A emailed the Council asking why her father was not able to have the value of his property disregarded for 12 weeks instead of 2 weeks and 2 days, as he had not known about the disregard when he became a permanent resident. She said he had lost £7000 (two months fees) as a result. She asked how to appeal.
17. The Council replied, “If a client self-funds their placement for more than 12 weeks they do not qualify for the 12 week property disregard. You advised me that your father’s placement became permanent on 1st March 2020. Due to him self- funding his placement for 9 weeks and 5 days he is only entitled to a proportion of the 12 week property disregard - 2 weeks and 2 days as set in the charging policy. The initial date of contact is applied as the run-out date as your father’s capital was below the threshold when you made contact to Adult services for funding. If you had contacted Adult services when his capital was £23250, he would have been entitled to the 12-week property disregard as he wouldn’t have been self-funding his placement for 9 weeks and 5 days.”
18. Mrs A responded that it was unfair to penalise Mr X as no-one had told the family of the property disregard at the time his care home residence was made permanent. The Council agreed to treat her contact as an appeal against the policy.

The Council’s response

19. On 26 June the Team Manager replied to Mrs A’s appeal about the length of the property disregard. She said the Council had considered it under the complaints procedure and concluded that (as previously explained) the property disregard could only be applied from the date when the Council first became aware of Mr X’s permanent residence in the care home. After that he was eligible for a Deferred Payment Arrangement. She said it was a shame the care home had not directed her to an advice agency. She added that the Council’s contracts team would remind care providers of the importance of sharing advice information with people who funded their own care.
20. In July Mrs A wrote again to the Council to say she was disappointed she had not heard from anyone about her complaint. She said she had also realised an error had been made by the Council in assuming her father had assets over the upper threshold for funding, when he did not.
21. Mr X died in September 2020.
22. In October 202 Mrs A complained to the Ombudsman. She said her father had lived on a low income and did not know anything about the property disregard. She said the Council told her the care home should have explained that Mr X had to apply for the property disregard when his residence was made permanent, but the care home staff told her they were unaware of the deadline.
23. Mrs A says the Council should have been aware of the needs of a 95-year-old who lived alone, and should have provided more information and support. She says her father had had previous contacts with the Council’s social care team when he had received advice on falls. She also points out that the Council was wrong to assume her father’s capital was above the threshold when he became a permanent resident.
24. The Council says it is not responsible for any arrangements prior to it being contacted and informed of the situation. It says it cannot be expected to backdate any financial assessment to a date prior to date of contact as it was not aware of the circumstances of the placement. It adds that as it was not aware of Mr X at the time of placement, it cannot say that his care needs would have met the relevant criteria for residential funding at the time.

Analysis

25. Mrs A was not aware at the time her father became a permanent resident that she could approach the Council for assistance. However, there is nothing in the Care Act 2014, the Care and Support (Charging and Assessment of Resources) Regulations 2014, or the Care and Support Statutory Guidance which says councils must backdate funding for care before the date someone asks for help.
26. Mrs A says the Council should have known about her father’s circumstances, but at the time he entered residential care he was not in receipt of services from the social care department; he had not been made known to the Council as a person who appeared to have eligible needs for care which the Council should meet; he had arranged and funded his own care.
27. There was no reason for the Council to assess Mr X when Mrs A made contact in February 2020 about the theft at the care home: its information then was that he was a self-funding resident whose needs were being met in the care home.
28. The Council’s responsibility for Mr X was triggered at the date when Mrs A requested assistance because his finances were below the threshold and it was notified of the permanent placement. There was no delay on the part of the Council once it was aware of Mr X’s circumstances (see para 8 above). It was not fault on the part of the Council to apply the disregard only for the period of time after it became aware of Mr X’s placement.

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Final decision

29. I have completed this investigation as there was no fault in the way the Council reached its decision not to backdate the property disregard.

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Investigator's decision on behalf of the Ombudsman