Summary: Mrs X complained about the Council’s refusal to disregard the late Mr Y’s property although she lived there with her partner. She says she will be made homeless if they force her to sell the property to pay Mr Y’s care costs. We found the Council was not at fault.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the Council’s assessment of her late father, Mr Y’s, finances. Mrs X says the Council should not have included his property as she lived in it and moved there to care for him.
2. Mrs X says she will be made homeless if they force her to sell the property to pay Mr Y’s care costs.

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The Ombudsman’s role and powers

3. 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)
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 may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

6. (Local Government Act 1974, section 26A(2), as amended)

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How I considered this complaint

7. I considered information from the Complainant and from the Council.
8. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Charging for permanent residential care

9. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
10. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
11. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person is entitled to access council support to meet their eligible needs. People who have over the upper capital limit are expected to pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

Property disregards

12. 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.
13. Annex B of the Care and Support Statutory 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 who have occupied the property continuously since before the person went into a care home:
• 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.
14. 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.

What happened

15. Mr Y lived in his own property and received a package of care arranged by the Council. Mr Y owned the property with his late wife as tenants in common in equal shares. Mrs Y left her interest in the property in a property fund trust. This fund gave Mr Y the right to live in Mrs Y’s share of the property rent free.
16. Following the death of Mrs Y, Mr Y went to live in Mrs X’s home which she shared with her partner and adult son. Mr Y found this confusing and was unsettled. He moved back to his own home.
17. In June 2018, Mrs X moved into Mr Y’s house to care for him there, having previously spent at least two nights a week there. The Council arranged respite care for Mr Y while Mrs X and her partner went on a holiday they had booked about six months previously.
18. In mid July, after the respite, Mr X returned to his own home. Mrs X contacted the Council asking for Mr Y to be placed in permanent residential care placement. The Council confirmed that it was working with Mrs X to identify a suitable long term arrangement.
19. In mid August, Mr Y’s permanent residential care placement began.
20. In October, Mrs X gave one months’ notice on her rented council property in another area. She had waited until this time when her adult son had saved a deposit for his own place.

Was there fault which caused injustice?

21. It is not my role to decide whether the Council should disregard Mr Y’s property but to decide whether the Council properly considered the matter.
22. The Statutory Guidance states a person is eligible for a mandatory disregard if they no longer live in their home but have a close relative living there who has been there continuously since before the person went into permanent residential care who is 60 or over. Mrs X’s partner was not 60 at the time Mr Y went into permanent care. The Council also disagrees that Mrs X’s partner had occupied the property continuously since before Mr Y went into the care home permanently. The Council is entitled to make this judgement. The Guidance also says councils can apply a ‘discretionary disregard’ for example, where the home is the main residence of someone who gave up their own home to care for the person now in residential care. Mr Y was in permanent residential care in August 2018 and Mrs X did not do this until October.
23. The Council considered whether it should disregard Mr Y’s share of the property when he entered permanent residential care and decided it should not. It is not for me to consider potential restrictions arising from the need to deal with the Trust. But, having decided fees are due based on an assessment including the property, it should explore this. The Council has considered Mrs X’s position and has decided it does not agree. I found no fault here.

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Final decision

24. I have completed my investigation and do not uphold Mrs X’s complaint.

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Investigator's decision on behalf of the Ombudsman