Summary: Miss B complains the Council did not properly consider her request for a discretionary disregard of the value of her grandfather’s home in its financial assessment. Miss B says the Council has not taken into account the level of time she spent and sacrifices she made to care for her grandparents, or that she gave up her home to do so. The Ombudsman does not find fault in how the Council considered Miss B’s request.

The complaint

1. The complainant, who I refer to as Miss B, complains on behalf of her grandfather about the Council’s decision not to disregard the value of her grandfather’s home. Miss B says she left her family home to care for her grandfather. This led to a breakdown in her relationship with her father and she cannot now return. Her grandfather recently went into residential care, and she asked the Council to apply a discretionary disregard to the value of his property, in its financial assessment. The Council declined and offered a deferred payment agreement (“DPA”). Miss B says this means that when her grandfather passes away, she may be forced to move out of the home. She says she has made significant sacrifices, including working reduced hours, to care for her grandfather and does not believe this is fair.

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The Ombudsman’s role and powers

2. 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)
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)

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How I considered this complaint

4. I considered the information Miss B provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Miss B and the Council for their comments before making a final decision.

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What I found

Law, Guidance and Local Policy

5. The Care Act 2014 provides a single legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and 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 (“the Guidance”).
6. 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.
7. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. People who have over the upper capital limit are expected to pay the full cost of their 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.
8. Normally when a person moves permanently into a care home, following an initial 12 week disregard, the council may include the value of the person’s home as capital in its financial assessment. However, the council must disregard the property where the property is occupied in part or whole as their main or only home by:
• The person’s partner
• A lone parent who is the person’s estranged or divorced partner
• A qualifying relative who is either aged over 60, a child under 18 or is incapacitated
9. Councils may also use their discretion to apply a property disregard in other circumstances. The Guidance says the council will need to balance this discretion with ensuring a person’s assets are not maintained at public expense. It says 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.
10. The Council has produced a guide on the process it will follow when considering whether to disregard a property. It says the property may be disregarded if it can be proven that it is the sole residence of someone who has given up their own home to care for the person or it is the sole residence of an elderly companion of the person.

Background

11. In 2015 Miss B moved from her family home into her grandparents’ property. She initially moved in to help her grandfather care for her grandmother who had dementia.
12. Miss B’s grandmother passed away in 2017 and her grandfather’s (“Mr Y”) health was deteriorating. Therefore, Miss B continued to live at the property and provide care to Mr Y. Miss B says that, to do so, she changed jobs and reduced her hours, which had a financial impact on her.
13. Miss B also says this led to a breakdown in her relationship with her father, as he hoped she would stay at home to help care for her sister. Miss B says she is no longer able to return to her family home for this reason.
14. In early 2019 Mr Y became more unwell and was admitted to hospital. He struggled to manage at home on his return. In mid-2020 Mr Y suffered a stroke and was admitted to hospital again. On his return Miss B found it had become more difficult to care for him due to his high level of needs. Miss B and her family contacted the Council who agreed to place Mr Y in a residential home.
15. The Council conducted a financial assessment. It included the value of Mr Y’s home, which meant he was liable for the full cost of his care.
16. Miss B asked the Council to disregard the value of the home. The Council declined. It said Miss B did not qualify for a mandatory disregard and it would only consider a discretionary disregard where:
• a) the property continued to be occupied by the elderly companion of the house owner
• b) was the home of someone who has given up their own home to care for that individual
17. Miss B appealed that decision and set out the circumstances of how she came to live at the property. She said that she had given up her home and could not move back. The Council did not uphold Miss B’s appeal and said again that there were insufficient grounds to offer a discretionary disregard.
18. Miss B says that she does not know how much of the value of the property will eventually go on care fees. She says that if she accepts the DPA then when her grandfather passes away, she may be forced to leave the home with three months’ notice.

Findings

19. Miss B’s circumstances do not meet the criteria for a mandatory property disregard. Therefore, the Council needed to consider whether it would apply a discretionary disregard. I cannot question the merits of the Council’s decision, only consider whether there was fault in the way it made the decision. In this case I have not found fault.
20. The Council’s complaint responses provide evidence it considered the Guidance on discretionary disregards when it made its decision. It decided Miss B’s situation did not reflect the examples set out in the guidance. I note these are only examples and the Council has the power consider situations other than these if it chooses to do so. However, it is at the Council’s discretion in what circumstances it will apply a non-mandatory disregard. I cannot question the Council for only considering situations that directly reflect the examples in the Guidance.
21. Miss B says her situation does reflect the examples in the Guidance as she gave up her home to care for her grandfather. I cannot see the Council addressed this point directly in its complaint response. However, the Council has set out its position on this point in its response to my enquiries. It says Miss B left her parents’ home but did not give up her own home. It says it needs to balance its discretion with ensuring a person’s assets are not maintained at public expense.
22. The Guidance does not specifically say the person must have given up a home they owned. However, on balance, I cannot find fault in how Council applied the Guidance in this instance. It is not clear whether the example was intended to cover situations in which the person leaves their parents’ home. In this type of situation, the person has left a home that might not have been permanent in any case and where commonly there is an option to return if necessary. I understand Miss B cannot return in this case, but it is unlikely the Guidance was intended to directly account for situations in which there has been an incidental breakdown in a family relationship.
23. The power to disregard is discretionary and, even within the examples given, it is for councils to make their own decision about when a disregard is appropriate. In this case the Council considered the relevant factors and the Guidance. It made an informed decision about whether to exercise its discretion. I cannot question the merits of that decision.

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Final decision

24. The Council is not at fault in how it considered whether to disregard the value of the property.

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Investigator's decision on behalf of the Ombudsman