Summary: There was fault by the Council as it failed to arrange an independent valuation of Mrs Y’s interest in a property. The Council has now taken appropriate action to remedy the injustice by arranging a valuation.

The complaint

1. A solicitor complained for Mr X that Royal Borough of Greenwich’s (the Council’s) financial assessment of his late mother Mrs Y’s care charge was flawed because it failed to value her interest in their property in line with charging rules and wrongly treated Mrs Y as a permanent resident.
2. Mr X said as a result, Mrs Y’s estate does not owe as much as the invoices say. Mr X also said the Council’s actions caused him avoidable distress and as he will have to sell the property, his relative will be made homeless.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We can decide whether to start an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. The issues Mr X complained about happened in 2014 and are late complaints. But there are good reasons for us to exercise discretion to investigate. Mr X also complained to us in 2014 about the financial assessment. Our investigation only considered the issue of whether Mr X had an interest in the property and not the valuation of Mrs Y’s interest or the level of debt. Mr X asked us to investigate these issues, but we did not respond to him at the time. This was our fault, not Mr X’s and it would be unfair to decline to investigate the issue on the grounds of time. The Council has records available for us to consider and has not raised any objections to an investigation.
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 Mr X’s complaint, submissions from his lawyers and supporting documents and information from the Council set out in the next section.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

9. Councils are entitled to charge people for residential and nursing care they arrange. People with capital over £23,500 are required to pay the full cost of their care. To work out a person’s charge and value their assets to determine a person’s capital, councils applied guidance set out in the Charging for Residential Accommodation Guide (CRAG). The law has since changed, but CRAG applied in 2014. Relevant paragraphs from the 2014 edition of CRAG are:
• Paragraph 6.013: where a person owns capital jointly, divide the total value equally.
• Paragraph 7.002: if a stay in care is temporary and the person intends to return to their property, then disregard its value.
• Paragraph 7.017: where a person is a joint owner, it is their interest in the property which is to be valued, not the property itself. The value of their interest depends on their ability to re-assign the interest to another person and there being a willing buyer/market. Where the interest is held by relatives, if no other relative is willing to buy, then there may be no value. However, if the council is not sure or if the value is disputed, there should be an independent valuation. The resident’s share shall be valued at the amount it would sell to a willing buyer, minus 10 per cent and the amount of any incumbrance on the resident’s share. (An incumbrance is an interest, right or liability on a property such as a mortgage.)

What happened

10. Mrs Y bought her house from the Council in 1999 under the Right to Buy scheme. Mr X took out a mortgage to pay for the property. Mr X was the joint owner with Mrs Y and is now the sole owner following her death in 2016.
11. The Council assessed Mrs Y’s social care needs when she was in hospital at the end of 2013. The outcome of the assessment was that Mrs Y was not safe to live at home and needed 24-hour nursing care. She moved into a care home in 2014. Mr X told us this was intended to be a temporary arrangement and Mrs Y wanted to return home. The Council told me the issue of the placement being temporary was not raised and it was always under the impression it was a long-term placement. The Council’s assessment of Mrs Y’s social care needs did not say she needed a temporary placement. It noted she required full assistance of two carers and equipment to help her in and out of bed and on and off the toilet, supervision with meals and that she could not sit safely and required carers to change her position.
12. The Council told me it completed a provisional financial assessment in December as well saying it would take into account a 50% share of the property and sent Mrs Y’s daughter an email confirming this.
13. In April 2014, the Council wrote to Mr X saying Mrs Y had a beneficial interest in the property of 50%. The Council valued the property at £76,500.
14. In June 2014, the Council completed a financial assessment. This said it would take into account 50% of the value of the property from April. It valued Mrs Y’s assets at £89,500. This meant she was not entitled to council funding and so the Council sent her bills for the full cost of her care.
15. Mrs Y moved to a different care home in June 2014. (I understand this second home was her preferred care home, but it had no vacancies until June 2014.)
16. Mr X complained to the Council about the financial assessment in July. It did not uphold his complaint, saying it considered Mr X and Mrs Y to be joint owners of the property and that now she was in residential care, there was nothing preventing the sale of the property.
17. In July 2014, the Council applied to the land registry to register a restriction. A restriction is a way of protecting a third party’s interest in a property or for ensuring obligations are met. This would mean Mr X and Mrs Y would have to comply with the restriction before selling the property (so they would have to pay back money (care home charges) owed to the Council.) Mr X objected to the restriction and so the Council applied to the property tribunal.
18. In October 2014, Mrs Y’s granddaughter moved into the property with her two children. Mr X told us the plan was for Mrs Y to return home and be cared for by her granddaughter. The Council told me it had no record of the family’s intention.
19. Mrs Y’s health deteriorated at the end of 2014 and Mr X told us in January 2015, she and the family accepted Mrs Y would not be well enough to return to her property and would stay in the care home permanently.
20. Mr X complained to us about the Council’s financial assessment. We issued a draft statement in September 2015 proposing to discontinue our investigation (stop investigating the complaint) because the property tribunal would deal with the dispute about Mrs Y’s interest in the property.
21. The property tribunal decided Mrs Y had a 50% share in the property.
22. Mr X contacted us by email in October 2015 saying our draft decision did not deal with the issue of how the Council valued the interest (that is, how the Council applied CRAG) and the property tribunal had no power to determine this. Although we received Mr X’s email, we did not reply to it or deal with it in our final decision statement, stopping the investigation, in November 2015. Mr X told us he never received our final decision statement. He did not contact us again until 2020.
23. Mrs Y died in the care home in March 2016.
24. In 2019, the Council sent Mr X three letters about the debt. Mr X replied saying he was not liable for the debt. The Council issued proceedings to repossess the property in August 2020. The Council told me the letters in 2019 were not the first ones sent by its debt recovery team. It also told me that the family had not paid anything towards the outstanding bill.
25. The Council got an independent valuation during this investigation. The independent surveyor valued Mrs Y’s interest at £25,500 in June 2014 and £32,200 in March 2016. The Council also told me it had re-done the financial assessment in line with this new information and was sending Mr X a new statement of account.

Was there fault and if so, did this cause injustice requiring a remedy?

26. The Council was at fault because it should have arranged for an independent valuation of Mrs Y’s interest in line with paragraph 7.017 of CRAG because Mr X disputed the valuation the Council made in 2014. The failure to arrange an independent valuation caused uncertainty about whether the Council had completed an accurate assessment of the value of Mrs X’s capital. The Council has now arranged an independent valuation of the property, based on the market in 2014. This is a remedy for the injustice and no further action is required.
27. Mr X also complained the Council did not regard Mrs Y’s placement as a temporary until 2015 and that her property should therefore be disregarded in the financial assessment until 2015. The social care assessment does not support Mr X’s position. The assessment noted Mrs Y had high needs and she would not be safe to return home. And, the Council told me there was no mention of the stay being temporary. There is no evidence of fault by the Council in reaching the view that the placement was permanent from the outset and so I do not uphold this part of Mr X’s complaint.
28. It is unfortunate Mr X may have to sell the property but as the action already taken provide an appropriate remedy, it is not appropriate for us to make any recommendations on this point. If Mr X does not repay the money owed for the care services Mrs Y received, the Council is entitled to recover the money through debt proceedings in the county court. These proceedings have been stayed but the Council has indicated it may go ahead with them to protect its legal position.

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Final decision

29. There was fault by the Council as it failed to arrange an independent valuation of Mrs Y’s interest in a property. The Council has now appropriate taken action to remedy the injustice by arranging a valuation.
30. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman