Summary: Ms X complains the Council wrongly assessed her father, for residential care charges and forced her to sell his house. The Council is at fault for failing to properly apply property disregards. To remedy the complaint the Council has agreed to apologise to Ms X, refund her for any overpayments, and pay her £500 for her avoidable time, trouble, and distress. It will also decide whether any property disregards were applicable and remind relevant staff about property disregards.

The complaint

1. The complainant who I refer to as Ms X, complains the Council wrongly assessed residential care charges for when her father was in residential care and her mother continued to live in the family home. Ms X also complains the Council failed to provide suitable care to her parents. I refer to Ms X’s parents as Mr D and Mrs D.
2. Ms X says because of these failures the Council forced her to sell the family home. This has caused her financial loss, time, trouble and upset.

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What I have not investigated

3. I have not investigated issues about the care provided to Mr D and Mrs D for the reasons set out below.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

7. If we are satisfied with an organisation’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

8. I spoke with Ms X and considered information she provided including the Council’s complaint response and chronology. I asked the Council questions and considered its response. I also considered the Ombudsman’s powers and restrictions imposed by the Local Government Act 1974.
9. I considered the relevant law and guidance set out in the Care Act 2014 and the associated Care and Support Statutory Guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What should have happened

Background information

11. Ms X says she was the main carer for her parents and moved into her parents’ home to care for them before Mr D entered residential care.

Paying for care

12. Where a council arranges care and support to meet a person’s needs, it may charge the adult, except where the council must arrange care and support free.

Deferred payment schemes

13. Deferred payment agreements help prevent people from being forced to sell their home in their lifetime to meet the cost of their care. Under a deferred payment agreement, the outstanding costs of a person’s care and support are recovered when their property is sold.

Property disregards

14. Councils must disregard (not take into account) a person’s property when calculating what they can afford to pay for their care for 12 weeks under certain circumstances. These include when someone first enters a care home as a permanent resident. The Care Act 2014 and the associated Care and Support Statutory Guidance (CASS) sets out the steps a Council should take when considering whether it should disregard a person’s property in decisions about residential care charges.
15. Paragraph 34 CASS says the value of the person’s main or only home must be disregarded when the person no longer occupies the property but it is occupied in part or whole as their main or only home by a relative who is “incapacitated”.
16. CASS does not define “incapacitated” but at paragraph 37 says councils should consider whether the person is receiving a health/disability related benefit or would be entitled to such a benefit if they applied.
17. CASS also allows councils to use its discretion to apply a property disregard in other circumstances. When making decisions councils need to be mindful they are not protecting people's assets at public expense. An example where a disregard may apply 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.
18. When deciding on a discretionary disregard CASS provides the following for consideration:
• was the relative occupying another property as their main or only home at the time of the previous financial assessment?
• could the relative have reasonably expected to have the property taken into account at the time they moved into the property?
• would failure to disregard the property result in the eligible relative becoming homeless?
• would failure to disregard the property negatively impact on the eligible relatives own health and wellbeing?”

What happened

19. A letter dated 20 July 2015 written by Ms X to Council says, “I will be staying here, perhaps things can calm down”. The letter says Mr D and Mrs D’s situation was worsening. By September 2015 because of Mr D’s increased needs he moved into a care home. Ms X says this was without her consent or the Council explaining the financial implications of the move. Ms X wrote to the Council and queried the need to sell her parents’ home and her mother’s financial difficulties because of care fees. Ms X asked the Council for help.
20. In October 2015 Ms X wrote to the Council saying no one was listening to her and a social worker had advised her to leave the house. Ms X says she left the house as she was involved in a domestic incident with her partner. At this point she had been going to and from her parents’ house. Ms X says he was “sick of” them all and had added a call blocker so she could not receive calls from Mrs D. The letter complains the Council’s advice about “loans and payments” was confusing and causing her added stress.
21. The Council completed a financial assessment dated 22 October 2015. Ms X says she found the assessment in the house in January 2016. The financial assessment was wrong and treated Mr D as a single person and failed to identify others living in the property.
22. Ms X says the Council told her she either had to enter a deferred payment scheme or sell Mr D and Mrs D’s property. The Council does not dispute this. Ms X says at the time she did not feel a deferred payment scheme was suitable as the debt was accruing interest. She therefore took steps to sell the house. Mrs D died in January 2016 before Ms X could sell the property.
23. The Council sent an email on 1 February 2016 about the deferred payment scheme, attaching an information sheet. It then sent reminders to Ms X about contacting the Council about the scheme on 4 February, 23 March and 21 April. Ms X says this was a difficult time for her as her mother had just died and she was dealing with her grief, organising the funeral, and liaising with the coroner’s office.
24. On 20 April 2016 Ms X told the Council that Mr D’s property was on sale and that she would arrange paying the care home directly.
25. Ms X says she was unhappy with the Council’s decisions at the time and complained. Ms X says the Council told her she did not have a complaint and would not engage with her when she tried to complain. Ms X says it was only more recently when she spoke with solicitors and Age UK that she realised the Council had not acted properly.
26. In 2022 Ms X complained to the Council who investigated the complaint. It accepted the financial assessment should have disregarded Mr D’s property while Mrs D was still living in the property. It offered to refund the care costs paid for the period Mr D was in residential care and his wife was still living in the family home.
27. Ms X says she was living at the property at the time and was claiming benefits related to ill health and an inability to work. Ms X says the Council should have disregarded the property on this basis. The Council disputes this and says Ms X was not resident at the property and was paying council tax for a different address.

Was there fault causing injustice?

28. While the events occurred in 2015/2016 I have decided to exercise discretion to investigate the financial part of this complaint. This is because there is enough information to make a finding, the Council has completed an investigation which has already accepted fault; and Ms X only became aware of the disregard rules more recently after advice from other agencies.
29. The Council has accepted it should have applied a property disregard of Mr D’s property until the death of his wife. I have found further fault as the Council should have applied a 12 week property disregard when Mrs D died. This has resulted in financial loss. The Council also failed to properly complete a financial assessment for Mr D. This is fault. Because of this Mr D was overcharged for his care contribution.
30. Ms X says she was living in the property at the time, incapacitated, and reported an episode of domestic violence. The Council was aware of these issues and should have considered whether a property disregard was applicable on either a mandatory basis, that Ms X was living at the property and was incapacitated, or a discretionary basis as set out in paragraph 18 above. The failure to do so was fault.
31. While the Council has provided evidence of Ms X paying council tax at another property, it needs to properly consider Ms X’s arguments and decide whether a mandatory or discretionary property disregard applied at the time.
32. Because the Council did not advise Ms X about property disregards she has the uncertainty that but for the faults identified she could have remained living at the property; and for its value to be disregarded.
33. Ms X says the Council forced her to sell her parent’s property. I cannot say this was the case as I cannot predict the outcome had the Council acted without fault. However Ms X does have the uncertainty of not knowing whether had the Council properly advised her at the time she might not have acted as she did.

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Agreed action

34. I have found fault in the Council’s actions causing injustice. The Council has agreed to take the following actions to remedy the complaint:-
1. within one month of the final decision to apologise to Ms X for the failure to properly advise her about property disregards and apply the property disregard rules;
2. within one month of the final decision explain the disregard rules to Ms X and ask her for any information and evidence relevant to the Council’s decision about a further property disregard. The Council should provide a reasoned decision within one month of receiving information from Ms X;
3. within one month of the Council’s decision at (b) provide a schedule of the property disregard periods and pay Ms X for extra payments made within those periods;
4. within three months of the final decision to remind, and if necessary provide, training to staff about the completion of financial assessments and property disregard rules where they are applicable.
35. Ms X considers the Council’s offer to pay her £500 for her unavoidable time, trouble and distress is inadequate. While I appreciate Ms X’s difficulties at the time, the payment offered by the Council is in line with our remedies guidance. It acknowledges the impact of the Council’s failures until now. If the Council decides to offer a further property disregard Ms X can ask it to consider the impact of its failure further in particular the financial losses Ms X says resulted from the sale of the house including the loss of valuable items.

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Final decision

36. I consider there is fault in the Council’s actions which have caused Ms X injustice. I consider the agreed actions are suitable to remedy the complaint. On this basis I have now completed my investigation and closed the complaint.

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Parts of the complaint I have not investigated

37. I have not investigated issues related to Mr D or Mrs D’s care. The matters complained about occurred in 2015/2016. Ms X says she complained to the Council at the time, but it dissuaded her from making a formal complaint and took no action when she raised her concerns. I acknowledge Ms X did raise concerns about finances and her parents’ care. I also acknowledge that at the time Ms X was under a considerable amount of stress. However there appears to be no reason why later during this period Ms X did not complain to the Ombudsman about the Council not accepting her complaints or the care provided to her parents.
38. Also, as stated above the Ombudsman provides a free service and must use public money carefully. I do not consider it would not be an effective of resources to investigate a complaint where the main subjects have passed away, and neither we nor the Council would be able to gain their views about their care which appear complex. We would also be unable to remedy their personal injustice.

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Investigator's decision on behalf of the Ombudsman