Summary: Mrs X complains the Council has failed to consider a discretionary property disregard for her mother’s property after Mrs X’s daughter turned 18 and has failed to progress a deferred payment agreement, leaving her mother paying for all her care and her daughter at risk of losing her home. The Council failed to give proper consideration to a discretionary property disregard but has now corrected that error. It is not at fault over the deferred payment agreement, as Mrs X has not accepted one for her mother.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council:
• failed to consider a discretionary property disregard for her mother’s property after Mrs X’s daughter turned 18; and
• has failed to progress a deferred payment agreement.

She says this has resulted in her mother paying for all her care and her daughter being at risk of being homeless.

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. 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, sections 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with Mrs X and the Council, and invited comments for me to consider before making my final decision.

Back to top

What I found

5. The Care and Support Statutory Guidance includes guidance on applying mandatory and discretionary property disregards. It says:
• the value of the person’s main or only home must be disregarded where the person no longer occupies the property but it is occupied in part or whole as their main or only home by someone from a list of people (which includes daughters and granddaughters), provided the property has been continuously occupied since before the person went into a care home.
• “A local authority may also use its discretion to apply a property disregard in other circumstances. However, the local authority will need to balance this discretion with ensuring a person’s assets are not maintained at public expense. An example where it may be appropriate to apply the disregard is where it is the sole residence of someone who has given up their own home in order to care for the person who is now in a care home or is perhaps the elderly companion of the person.”

What happened

6. Mrs X’s mother, Mrs Y, has dementia. Mrs X has power of attorney for her finances and health and welfare. Mrs Y brought up Mrs X’s daughter, Ms Z, as her legal guardian. Mrs Y went into hospital in October 2019. Hospital records from November 2019 say Ms Z had moved out of her grandmother’s home because she had been violent towards her. When she left hospital in November 2019, Mrs Y moved into residential care. Her granddaughter was 17.
7. The NHS funded Mrs Y’s placement until December 2019 when it decided she was not eligible for Continuing Healthcare. After that Mrs Y funded her placement, as she had capital over £23,250.
8. When the Council did a financial assessment, it found her capital (excluding the value of her home) fell below £23,250 on 28 March 2020.
9. By 14 July Mrs Y owed the care home £19,360.
10. The Council says it considered a discretionary property disregard. It has provided a copy of a letter dated 12 August (addressed to itself). It said:
• there were no qualifying individuals living in Mrs Y’s property as she had been the sole occupant;
• in November 2019 Mrs X told the hospital Ms Z had moved out of the house;
• Mrs Y had assets well over £23,250 which Mrs X, as her power of attorney, could use to pay for her care.
11. The Council’s letter of 3 September said it based the decision not to disregard Mrs Y’s property on “perceived conflicting information received as to whether the property was empty or occupied”. It asked for evidence that Ms Z occupied the property between 28 March and 7 May 2020. It said:
• it could meet Mrs Y’s needs by applying a discretionary property disregard from 28 March to 7 May; and
• it could arrange a deferred payment agreement from 8 May, which would enable Ms Z to live in the property and the Council to recover the deferred payments.
12. The Council accepts it was wrong to refer to a discretionary property disregard. As Ms Z continued to occupy her grandmother’s home as her main and only home, it qualified for a mandatory disregard while she was under 18.
13. Mrs X wrote to the Council on 20 February saying she was willing to accept a deferred payment agreement, if was needed to fund her mother’s care. However, she questioned the outcome of the financial assessment and the decision on a property disregard, which she said were based on mistakes and misunderstandings. She said the Council should:
• refund the money Mrs Y had paid for her care between 19 November 2019 and 7 May 2020; and
• grant a discretionary property disregard from 8 May, otherwise a vulnerable dependent relative (Ms Z) would be made homeless.
14. I asked the Council to explain why it did not consider a discretionary property disregard after Ms Z turned 18. The Council referred me to its letter of 12 August. It said that after accepting the property qualified for a mandatory disregard from 28 March to 7 May, it decided not to apply a discretionary property disregard because:
• under the Statutory Guidance “in most situations an adult below the age of 60 and who is not a partner or for er partner of the property owner, who is living in the property owned by an adult receiving care in a care home will not give rise to a disregard irrespective of whether they are related to the adult”;
• it has seen no evidence to explain why Ms Z would be made homeless if it did not disregard the property.
15. The Council accepts it did not communicate this decision “as clearly as we could have”.

Is there evidence of fault by the Council which caused injustice?

16. Given the information in the hospital’s records, the Council was not at fault for assuming Ms Z had left the property in 2019. However, it has since accepted the property qualified for a mandatory property disregard while Ms Z was under 18 (up to 7 May 2020). The Council mistakenly referred to this as a discretionary property disregard.
17. The Council’s letter of 12 August 2020 was not addressed properly and was based on the mistaken view that Ms Z had left the property. There is no evidence the Council gave further consideration to a discretionary property disregard, until it responded to my enquiries, despite Mrs X specifically asking it to do so. That is fault by the Council.
18. The Council has not progressed a deferred payment agreement because Mrs X, as her mother’s power of attorney, only agreed to accept one if it refunds the money Mrs Y paid between November 2019 and 7 May 2020, and grants a discretionary property disregard after that. If the Council granted a discretionary property disregard, there would be no need for a deferred payment agreement.
19. As the Council eventually applied a mandatory property disregard after Mrs Y’s capital fell below £23,250 until Ms Z turned 18, there is no need for it to refund any money Mrs Y paid between November 2019 and 7 May 2020.
20. The Council has belatedly explained why it will not grant a discretionary property disregard. This is because Ms Z would not be made homeless if it did not do so. Although the Council did not say so, this is because Ms Z can still live in the property if Mrs X accepts a deferred payment agreement for her mother. While this is not the decision Mrs X wanted, it is a decision the Council is entitled to take and not one I can criticise. It also corrects the Council’s previous fault.

Back to top

Final decision

21. I have completed my investigation on the basis the Council has now corrected its fault.

Back to top

Investigator's decision on behalf of the Ombudsman