Summary: Mr X complained that the Council did not apply the full 12 week property disregard to Mrs Y’s financial assessment and did not provide enough information. He also complained that it did not agree to arrange a council contract with the care home. He says this was stressful for the family and would like the Council to apply the disregard in full and backdate a contract. The Council has now agreed to apply the disregard in full and this will remedy any injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains on behalf of his mother, Mrs Y. He says, when her capital dropped below the threshold for funding, the Council:
• did not apply the full 12 week property disregard to her financial assessment;
• did not provide enough information about the process and options; and
• did not enter into a contract with the care home for Mrs Y’s care.
2. Mr X says the family placed Mrs Y in the care home privately and were not aware of the disregard until they saw a reference to it in the care home’s contract. Mr X says it has been stressful and caused Mr X and his brother to pay for Mrs Y’s fees unnecessarily. He has been trying to get the Council to apply the full 12 weeks for over one year and would like the Council to apply it in full.

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The Ombudsman’s role and powers

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, section 30(1B) and 34H(i), as amended)
4. 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.

5. (Local Government Act 1974, section 26A(2), as amended). We are satisfied that Mr X is a suitable person to complain on Mrs Y’s behalf.

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How I considered this complaint

6. I considered information from the Complainant and from the Council.
7. 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

Financial assessments

8. In 2014, the Government introduced the Care Act which came into force in 2015. This legislation replaced all previous guidance about how councils assess and provide care for adults in need. It includes guidance on charging for care.
9. The Care Act 2014 states councils have discretion to charge people for the care they receive. If a council decides to charge for care, it must complete a financial assessment. If a person refuses a financial assessment they must self-fund their care.
10. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The scheme must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25%. The Council can take a person’s capital and savings into account subject to certain conditions. If a person incurs expenses directly related to any disability he or she has, the Council should take that into account when assessing his or her finances. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

Capital limits

11. The capital limits, specified in regulations issued under the Care Act 2014, set the levels of capital (excluding any capital that has been disregarded) that a person can have while qualifying for financial support from their local authority. A person with assets above the upper capital limit, currently £23,250, is responsible for the full cost of their care in a care home. A person with assets between the capital limits will pay what they can afford from their income, plus a means-tested contribution from their assets. A person with assets below the lower capital limit, currently £14,250, will pay only what they can afford from their income.

Property disregards

12. Property is not included in financial assessments when a stay in residential care is temporary. However, local authorities must disregard the person’s property for the first 12 weeks after the stay becomes permanent.
13. A person needing residential care can enter into a “deferred payment agreement” with a council. This lets a person use the value of their home to help pay care home costs. The council does not write the deferred payment off. It is repaid later, usually from the proceeds of the person’s house sale.
14. During the 12 week disregard period, the person is not entitled to claim attendance allowance.

What happened

15. Mrs Y had lived in the home she owned on her own for several years since her husband died. Her family did not live nearby. She was able to cope in many respects but her mobility was restricted, she was at risk of falls and she was lonely.
16. In summer 2019, Mrs Y spent some time in hospital then went to a care home for respite but when she tried to return home, she did not cope well and returned to stay at the home.
17. In December 2019, the Council assessed Mrs Y; this assessment found she now had eligible needs. Mrs Y had been at the care home for four weeks on a permanent contract. Family planned to clear her property and sell it in the new year.
18. At this point, Mr X found out about the 12 week disregard and asked the Council about it. He felt Mrs Y was entitled to this so she wasn’t forced into selling her property. The Council decided that it would offer an 8 week disregard as Mrs Y had been in a permanent placement before her capital dropped below the threshold. Mr X also asked the Council to replace Mrs X’s contract with the care home with its own.
19. A social worker assessed Mrs Y with Mr X’s wish for the Council to contract with the care home in mind; they recommended 24 hour care. This recommendation then went to a quality assurance panel. The panel decided Mrs Y’s needs could be met with another service at home and she was not eligible for council provided 24 hour residential care.
20. In its response to my enquiries, the Council said it proposed to apply the full 12 weeks as requested by Mr X. It acknowledged that the reason for the 12 week disregard starting when residential care first becomes permanent is because the property is disregarded for temporary periods such as respite. I have therefore not investigated this complaint further.

Was there fault which caused injustice?

21. The Council has acknowledged it should have applied the 12 week disregard in this case and has offered to do so. This will remedy any injustice it caused by failing to do this so I have not made further recommendations.
22. I found no fault with the Council’s consideration of the request for a Council contract with the care home.

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Final decision

23. I have completed my investigation and uphold Mr X’s complaint that the Council did not apply the full 12 week property disregard to her financial assessment and did not provide enough information about the process and options.
24. I do not uphold Mr X’s complaint that the Council did not enter into a contract with the care home for Mrs Y’s care.

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Investigator's decision on behalf of the Ombudsman