Summary: Ms C complained the Council failed to apply a discretionary property disregard, as part of her mother’s financial assessment for residential care. She also complained the Council did not allow her to challenge this decision through an appeals / complaints process. We found there was fault that the Council did not allow her an opportunity to challenge its decision. The Council has agreed to apologise for the distress this caused Ms C and to change its relevant practice to enable others an opportunity to challenge this type of decision in the future.

The complaint

1. The complainant, whom I shall call Ms C, complained to us on behalf of herself and her mother, whom I shall call Mrs M. Ms C complained that the Council’s decision not to apply a discretionary property disregard, was wrong. Furthermore, she said the Council failed to allow her an opportunity to appeal the decision.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
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)

Back to top

How I considered this complaint

5. I considered the information I received from Ms C and the Council. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received, before I made my final decision.

Back to top

What I found

Relevant legislation and guidance

6. The Statutory Care Act Guidance says that a council may use its discretion to disregard (the value of) a property, as part of a financial assessment to calculate how much a person has to contribute towards the cost of their residential care. However, it also says the council will need to balance this discretion with ensuring a person’s assets are not maintained at public expense.
7. The guidance says that one circumstance where it may be appropriate to apply such a disregard, is where it is the sole residence of someone who has given up their own home to care for the person who is now in a care home.
8. The guidance also says that, where a council has established a special panel to deal with financial assessment/charging issues, they should remind the person that they still have access to the statutory complaints procedure.

What happened

9. Ms C says:
• She had been caring for her mother since the death of her father in 2014. Because of all the support she had already provided up to this point, her mother decided in 2017 (she changed her will) that she would inherit her mother’s house after she dies, so Ms C could stay there with her son.
• She was providing a lot of support to her mother in 2017, who was struggling to live on her own after her husband passed away. She therefore decided it would be best to sell the property and move in with her mother, together with her son.
• She sold her house in February 2018 and invested £80,000 of the proceeds into a kitchen and bathroom in her mother’s property, and for redecorating that property.
• She said the support she provided had been increasing, especially since 2018. Her mother was diagnosed with Dementia and Alzheimer's disease in 2019 and deteriorated. They decided to sell the property in January 2020 and used the funds from the sale to buy another house in February 2020. However, the property had to be put solely into the mother’s name.
• Her mother moved into a care home in September 2020.
10. According to a record from July 2020, the hospital and a nursing home where Mrs M had been staying, reported that Mrs M was still very independent. It said she was independent with all activities of daily living and just needed a little prompting. She could take herself to the toilet and wash herself in the mornings. She was generally well managed and did not need any special support or 1:1. She could be quite active at night but would not put herself in any danger. At the same time, Ms C said her mother’s situation had significantly deteriorated over the last two weeks following a stroke, and she wanted her mother to go into a care home permanently. She said she was currently providing full-time care to her mother and was struggling to support her as she was not able to leave her and unable to work at the moment, as she was self-employed.
11. Mrs M’s condition deteriorated, and by September 2020 Ms C said she was no longer able to cope with caring for her mother.
12. Ms C’s application for a discretionary property disregard was considered by a panel. The panel’s decision template states, amongst others, that:
• There is evidence of Ms C having provided some care and support, and this would have increased over time. However, the associated estimated saving to the public purse is not considered to be significant.
• Mrs M’s dependency on Ms C for care was very low level for a significant period of time; it only increased later.
• No one gave up a home or access to a property in order to care for Mrs M.
• Ms C invested £100,000 in the property, which should be recognised once the outstanding care home fees have to be paid to the Council.
13. Ms C told me that her case is the same as the case mentioned in the guidance (see paragraph 7 above). Furthermore:
• When she moved in with her mother in 2017, she needed help with day to day living and was suffering from bad spells in the night, along with depression and the beginnings of her dementia. Her mother would call her in the middle of the night and several times during the day. She therefore decided it would be best to sell the property and move in with her mother, together with her son. This decision was very difficult as she loved her own house. The evidence of this would be recorded in her medical notes kept by her GP, as they visited the GP at least once a week.
• She was not able to work full time after she moved in with her mother, as her mother needed a lot of support with day-to-day things, food shopping and health appointments. She therefore suffered financially during those five years by losing out on a substantial amount of income. She estimates this to be around £155,000.
14. The Council has said:
• It did not find that Ms C met the criteria of “someone who has given up their own home to care for the person who is now in a care home”. The panel considered that Ms C sold her own property in February 2018 and moved in with her mother. There is no indication from the information it has seen and received (including an article written in a magazine about her move) that she moved in with her mother “in order to provide care”.
• In the article, Ms C talked about moving property. The article refers to Ms C choosing to move in with her mother because her son was growing older, and they had outgrown their previous home. In addition, it said her mother was struggling having so much time on her own. The Council therefore considers the move took place for the benefit of Ms C and her son and to provide company, rather than care, to Mrs M.
• It did not receive evidence to substantiate Ms C’s claim that she suffered financially for 5 years. The panel considered there was some evidence of Ms C subsequently providing care and support, elements of which could reasonably be expected from a family member living with their older relative.
• The panel noted that for a significant time between Ms C moving in with her mother, and then moving again in January 2020, Ms C was working full time. In her statement she mentioned she was working up until 2019, but simply popping back home at times. And that, at the beginning of 2020 when they moved to a new property, she could scale down her work more to look after her mum.
• There is evidence that Mrs M only needed a higher level of care from February 2020 onwards.
15. I reviewed the article referred to above. It does not indicate Ms C moved to provide care to her mother. It was described more as a practical decision that would benefit all. Reasons mentioned were: outgrown the property, son gets a bigger bedroom, mother gets company and can live downstairs.
16. In response, Ms C says:
• She did not mention her mother’s health as a reason in the article, because it was a personal matter and would not have been appropriate considering the audience of the magazine.
• Her lifestyle did not benefit from the move as she did not have her own bedroom anymore after the move, as it was only a two-bedroom property.
17. Ms C told me the Council’s decision not to apply a property disregard, has had a very negative effect on her and her son's mental health. They first had to deal with Mrs M going into a care home and now with the potential financial impact of this.
18. The Council told me that:
• It considers each application for a discretionary property disregard on its own merits, within a panel comprising the Principal Social Worker (chair), Principal Solicitor and Strategic Business Finance Partner.
• It has many examples where it applied discretion, and it does not apply guidelines within which to apply such discretion. As above, each application is considered on its’ own merits.
• It has offered a deferred payment for Mrs M’s care.
• It is reviewing whether to make it possible in future to complain about a discretionary decision by the panel.

Analysis

19. I found there was no fault in the process through which the Council made its decision not to use its discretion to disregard Mrs M’s property. The Council considered all relevant considerations, did not consider any irrelevant considerations, and subsequently came to a reasoned decision which we cannot criticise (see paragraph 3 above).
20. However, the guidance is clear that where financial / charging decisions are made by a panel, people should have an opportunity to challenge these through a complaint procedure. The Council has so far not provided an opportunity to people to challenge decisions by the panel about discretionary property disregards. This is fault.
21. If Ms C believes there is evidence in her mother’s GP records to support her view that her mother already needed a lot of support when Ms C moved in with her, then she should consider requesting this evidence from the GP and ask the Council to consider it.

Agreed action

22. I recommended that the Council should, within four weeks of my decision:
• Apologise to Ms C for not allowing her to challenge the panel’s decision through the Council’s complaints procedure.
• Revise its relevant practice guidance to ensure it includes reference to the right to have access to the Council’s statutory complaints procedure in these cases.
23. The Council has told me it has accepted my recommendations.

Back to top

Final decision

24. For reasons explained above, I have upheld Ms C’s complaint, because the Council should have offered her the chance to challenge the decision. However, there was no fault with the way through which the Council considered if it would have to use its discretion to disregard Mrs M’s property.
25. I am satisfied with the actions the Council will carry out to remedy the fault identified, and have therefore decided to complete my investigation and close the case.

Back to top

Investigator's decision on behalf of the Ombudsman