Summary: The Council was at fault for the way it decided not to disregard Mr X’s property when calculating his care costs. This means Mr X’s family cannot be sure his care costs are correct and whether entering into a deferred payment agreement with the Council is necessary. To remedy the injustice caused the Council has agreed to apologise and re-consider whether Mr X qualifies for a property disregard.

The complaint

1. Mr Y complains on behalf of his father, Mr X, that the Council decided not to disregard Mr X’s property from its financial assessment when calculating his care costs. As a result Mr Y says his mother believed she could lose her home and he was uncertain whether Mr X’s care costs had been calculated correctly.

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

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How I considered this complaint

4. As part of this investigation I considered the information provided by Mr Y and the information from the Council. I discussed the complaint over the telephone with Mr Y. I sent a draft of this decision to Mr Y and the Council and considered comments received in response.

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What I found

Law and guidance

5. Councils have the power to meet the care needs of people living in their area. The Care and Support (Charging and Assessment of Resources) Regulations 2014, and the Care and Support Statutory Guidance 2014 (“the Guidance”) set out the rules on how councils can charge for care services.
6. The Guidance says anyone with over the upper capital limit (currently £23,250) may have to pay the full cost of their care. Capital includes the money invested in a property.
7. 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.
8. Annex B of the 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:
• 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 who is either 60 or over, a child of the resident aged under 18 or incapacitated.
9. The Guidance says 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.
10. The Council’s Charging Policy says it will not include the value of a person’s main or only home when looking at their capital if the home is occupied by:
• a spouse or partner (including same sex partners);
• an estranged/divorced partner if s/he is a lone parent with a dependant child;
• a relative who is aged over 60;
• a relative who is aged under 60 and considered disabled; or
• a child who is under the age of 18.
11. The Council does have discretion to disregard the value of a home in exceptional circumstances.

What happened

12. In April 2019 Mr X moved into a care home. The Council started to carry out a financial assessment, in early May 2019, to decide what contribution Mr X would pay towards his care costs. Mr X owned a property with Mrs X but had lived at another property before going into care, which he did not own.
13. On 30 May 2019 the Council wrote to Mr X and told him his contribution was £300 per week as he was now a permanent resident in the care home. Prior to this the Council provisionally assessed Mr X’s care costs. The Council also asked Mr X to supply evidence that half his pension was being paid to Mrs X, his wife, following marital breakdown. The Council said it had disregarded Mr X’s property from the financial assessment as Mrs X was living there.
14. In June 2019 Mrs X sent the Council evidence showing she received Mr X’s full occupational pension. She provided bank statements showing this was paid into her account. Mrs X also told the Council she separated from Mr X in 2013 and he agreed she could have his occupational pension.
15. On 6 September 2019 the Council told Mr Y it was including Mr X’s 50% share of his property in the financial assessment and as a result Mr X would be liable to pay the full costs of his care. The Council explained it was including Mr X’s share of the property as he moved out six years prior, and he and Mrs X are estranged so the property would not qualify for a mandatory disregard. The Council said Mr X would be liable to pay the full costs of his care from April 2019.
16. On 13 September 2019 the Council wrote to Mr Y. It apologised for the delay in completing Mr X’s financial assessment but said Mr X would have to pay the full cost of his care as he had assets over £23,250. The Council said Mr X can pay the care home directly or can set up a Deferred Payment Agreement (DPA).
17. From September 2019 to December 2019 Mr Y provided the Council with the following further information about Mr X and Mrs X’s situation:
• When Mr X moved out of the family home in 2013 he agreed Mrs X could have his occupational pension.
• Mr X left the family home to move in as a lodger with a lady he had been supporting and wanted to move back to the family home but the lady Mr X was staying with had significant mental health issues.
• His parents had regular contact and Mrs X provided Mr X with care.
• Mrs X is over 70 years old and satisfied the requirements in the Care Act 2014 to have the property disregarded.
18. In March 2020 the Council wrote to Mr Y. The Council said it carried out a financial assessment and found Mr X owned 50% of a property which meant his capital was over £23,250. Therefore Mr X was not eligible for funding with his care costs. The Council said Mr X did not qualify for a mandatory property disregard and it had considered whether to exercise discretion but decided as Mr X qualified for a DPA it would not exercise discretion to disregard his property.
19. On 9 March 2020 Mr Y complained to the Council about the way the Council had dealt with Mr X’s funding for care. Mr Y said:
• He is unhappy the Council had not disregarded Mr X’s property and considered his mother, Mrs X, estranged from Mr X.
• Mrs X retained Mr X’s occupational pension and regularly visited Mr X to provide him with care. Mr Y said the Council had overlooked their relationship.
• The Council had taken a long time to come to its decision to include Mr X’s property in his financial assessment. Mr Y said the Council had not explained how it reached this decision properly.
20. Mr Y applied for a DPA on Mr X’s behalf in April 2020. The Council told Mr Y it required further documentation to process this.
21. On 16 June 2020 the Council provided its response to Mr Y’s complaint. The Council said as Mr X owned 50% of a property his assets are above the threshold to qualify for funding, and he had to pay his care costs in full. The Council said it offered a DPA to help with his care costs. The Council said Mr X did not qualify for a mandatory property disregard. It considered applying its discretion to disregard Mr X’s property but felt this was not necessary as he could apply for a DPA and Mrs X could continue living there.
22. Since the conclusion of the complaints process Mr Y and the Council have been in contact about finalising the DPA and the terms and wording of this. The Council agreed to allow Mrs X to remain in the property if Mr X passed away, however Mr Y is concerned the wording of the DPA does not reflect this.

Analysis

23. The Guidance says a person will have their property disregarded if a partner or former partner is still living there, unless they have become estranged. Mrs X is living at the property jointly owned by her and Mr X.
24. The Council decided Mrs X was estranged from Mr X, so he did not qualify for a mandatory disregard for his 50% share of the property he owns with Mrs X. However the Council has not explained in its communication with Mr Y why it has considered Mrs X is estranged from Mr X. This is fault.
25. Mr Y provided the Council with details about Mr X and Mrs X’s relationship after Mr X left the family home in 2013. This included Mr X and Mrs X being in regular contact, having an agreement about Mr X’s occupational pension income and regularly seeing each other. In its decision to Mr Y and complaint response the Council has not referenced any of this information or provided its reasoning for Mrs X being estranged. As a result Mr Y cannot be sure the Council has adequately considered the family’s situation when coming to this decision.
26. The Council was also at fault for the time taken to decide Mr X’s care costs. The Council started its financial assessment in May 2019 but only decided Mr X had to pay the full costs of his care in September 2019. The Council recognised this in its complaint response and apologised. I am satisfied this is sufficient to remedy any injustice caused.

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Agreed action

27. Within one month of my final decision the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
• Provide a written apology to Mr Y and his family for not adequately explaining why it decided Mr X did not qualify for a mandatory property disregard.
• Re-consider whether Mr X does qualify for a property disregard, considering the family’s circumstances. The Council may wish to make further enquiries about the relationship between Mr X and Mrs X.
28. Should the Council decide to disregard 50% of Mr X’s property it will cancel the DPA and refund Mr X any fees and interest relating to the DPA.
29. Should the Council decide not to disregard Mr X’s 50% share, it should satisfy itself Mrs X is estranged and provide Mr Y with an explanation of the rationale for its decision.

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Final decision

30. I have completed my investigation and found there was fault by the Council in how it made its decision not to disregard Mr X’s share of a property. This has caused injustice as Mr X’s family cannot be sure the Council considered the matter properly and came to the correct decision. The Council has agreed to the above actions to remedy the injustice caused.

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Parts of the complaint that I did not investigate

31. I have not investigated matters which occurred after the complaints procedure, namely the communication around the DPA and the negotiation in setting this up. This is because it did not form part of Mr Y’s complaint to the Council. He would need to raise any concerns about this to the Council as a formal complaint in the first instance before the Ombudsman could consider it.

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Investigator's decision on behalf of the Ombudsman