Summary: Mr X complained about the Council’s refusal to obtain an independent valuation of jointly owned property when assessing his contribution towards residential care home fees. We find the Council was at fault for not doing so. The Council has already agreed to arrange a valuation. The Council has also agreed to apologise for not doing so sooner.

The complaint

1. Mr X complains the Council failed to carry out a proper financial assessment of jointly owned capital assets.
2. This led to him being unable to pay his care home fees, leaving his care home placement in jeopardy.
3. Mr X is represented by his wife, Mrs X and their solicitor in making this complaint.

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The Ombudsman’s role and powers

4. 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)
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. 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

7. I considered the information provided by Mr X’s representative.
8. I considered the Council’s replies to my enquiries.
9. I considered relevant law and guidance as set out below.
10. The Council and Mr X had the opportunity to comment on my draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

11. The “Care and Support (Charging and Assessment of Resources) Regulations 2014” and the “Care and Support Statutory Guidance 2014” (The Guidance) set out the charging rules for residential care. The Council must follow these rules when carrying out a financial assessment to decide how much a person should pay towards the costs of their residential care.
12. The rules say people who have capital over the upper limit (£23,250) should pay the full cost of their residential care home fees.
13. Where the parties cannot agree the value of a property, the council should ask a professional valuer to provide a current market valuation.
14. Where the value of a property is disputed, the aim should be to resolve this as quickly as possible. Local authorities should try to obtain an independent valuation of the person’s beneficial share of the property within the 12-week disregard period where a person is in a care home. (The Guidance, Annex B).

What happened

15. In July 2019, Mr X went into residential care on a permanent basis. He had dementia and lacked capacity to deal with his finances. His wife, Mrs X, does so on his behalf. She instructed a solicitor to represent her in making a complaint to the Council.
16. Mr and Mrs X jointly own a property letting business (“the Business”). This is a partnership arrangement.
17. Mrs X advised the Council that Mr X’s finances had fallen below the relevant threshold. Because of this she asked the Council to carry out a financial assessment with a view to receiving aa contribution towards the cost of the care home.
18. In November 2019, following a financial assessment, the Council informed Mrs X that Mr X’s capital assets derived from the Business were above the threshold and so Mr X was not entitled to financial support.
19. Mrs X disagreed with this assessment. She told the Council the Business provided an income stream, but their business model meant it had little capital value.
20. Mrs X said all Mr X’s available capital has been depleted and she was unable to pay for his care home placement and it was in jeopardy.
21. She complained to the Council on the following grounds:

• The Council was wrong to rely on a Zoopla valuation to value the Business’s capital assets.
• The Council was wrong to insist the Business’s properties should be sold on an individual basis. This is because it failed to take into consideration the properties were jointly owned by Mr and Mrs X.
• The Council’s assessment did not take account of the Capital Gains Tax implications of selling the Business assets in the way it proposed.

22. Mrs X asked the Council to obtain an independent valuation as required by Annex B, paragraph 18 of The Guidance.
23. The Council refused and so Mrs X brought her complaint to the Ombudsman.

Analysis

24. In response to the Ombudsman’s enquiries about this complaint, the Council has expressed its wish to reach a negotiated settlement. With this in mind, it has agreed to commission an independent valuation of the Business. This will inform the decision as to whether Mr X qualifies for financial assistance.
25. While I welcome this, the Council should have taken this approach much earlier. Annex B of The Guidance is clear where there is a dispute over the value of capital assets, as was clearly the case here, an independent valuation should be obtained.
26. Putting a valuation on Mr X’s capital assets is not a straightforward matter. There are a number of complicating factors, such as Mrs X’s position and the occupancy of the properties. It is understandable why Mrs X felt a Zoopla valuation could not take into account the many variables involved. Her rationale for disputing this was justifiable and so was her request for an independent valuation. For this reason, I have found the Council to be at fault for not doing so sooner. This has caused an injustice that requires a remedy.

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Agreed action

27. Within eight weeks from the date of my final decision, the Council has agreed to take the following action:
1. Apologise in writing to Mr and Mrs X.
2. Arrange an independent valuation of Mr X’s share of the jointly owned business. The Council should liaise with Mrs X to agree instructions to the valuers. The valuation obtained should inform a revised financial assessment. If this results in Mr X being entitled to Council support, this should be backdated to the relevant date.

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Final decision

28. The Council was at fault by not obtaining a valuation of Mr X’s assets. The Council has agreed an appropriate remedy. On this basis I have completed my investigation

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Investigator's decision on behalf of the Ombudsman