Summary: The Council failed to properly communicate its decision about a property disregard. This has caused the complainant time and trouble in understanding the decision and a potential lost opportunity to present information. To remedy the complaint the Council has agreed to apologise to the complainant, provide a decision letter which fully explains its decision and remind staff about the need to communicate complete, reasoned decisions.

The complaint

1. The complainant who I call Ms C complains on behalf of her mother who I refer to as Mrs C and her brother who I refer to as Mr C. Ms C complains the Council’s decision not to apply a property disregard on Mrs C’s home is not in line with government guidance. Ms C says Mr C is vulnerable, gave up his home to care for his mother, and the Council should disregard Mrs C’s property on this basis.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. I spoke with Ms C and considered information she provided, this includes complaint correspondence. I also spoke with the Council for its comments.
5. I considered the Care and Support Act 2014 and the associated Care and Support Statutory Guidance (CASS) which is the relevant law and guidance.
6. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

7. Mr C says he left his own home and moved to live with Mrs C in 2014 when her health worsened. Mr C says he has anxiety and depression, and this has worsened over the past few years.

What should have happened

8. 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.
9. 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”.
10. 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. It says a council may need medical or other evidence to reach a decision.
11. 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.
12. 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

13. In 2020 Mrs C’s needs increased and she moved into residential care. Ms C asked the Council to disregard the value of Mrs C’s property based on Mr C who continued to live at the property and had health problems. She also told the Council that Mr C gave up his own home to care for Mrs C. Ms C said Mr C met the conditions for both a mandatory and discretionary disregard of the property.

Council’s decision

14. The Council said Mr C did not meet the conditions for a mandatory property disregard as it did not consider Mr C as incapacitated as:-
• Mr C was not receiving any disability related benefits;
• its opinion was that Mr C would not be eligible for any disability related benefits;
• Mr C had a job and had worked for several years.
15. The Council then considered whether Mr C was eligible for a discretionary disregard using the guidance set out above. It decided Mr C was not eligible because:-
• Mr C was living at the property as his main or only home but would have been aware the property would be taken into account as Mrs C was assessed as needing 24 hour care while she was at home;
• on consideration of medical information provided by Ms C this was not enough to decide Mr C would not be able to manage a move;
• he would not be homeless. He would be able to access rental property, and get benefits to support him with rental costs.
16. The Council also said it would consider an application for a Deferred Payment Scheme which would allow a debt to accrue against the property until Mr C found alternative accommodation.
17. The Council says it considered whether Mr C gave up a property to care for Mrs C. It did not provide reasons for this in the decision letter. It has since said it did not consider Mr C gave up his accommodation as he was a student at the time and returned to Mrs C at weekends. The Council also says it considered whether Mr C was a carer but there was no evidence to suggest this was the case.

Is there fault causing injustice?

18. The Ombudsman cannot criticise a decision the Council has made properly. I find no fault in the way the Council decided Mr C did not meet the conditions for a mandatory disregard. It considered whether Mr C was “incapacitated” using the example set out by the guidance, namely whether he was in receipt or would get a disability related benefit.
19. I also find no fault in the way in which the Council used its discretion in considering the impact to Mr C’s mental health. The Council considered medical reports and made a reasoned decision. Similarly it also made a reasoned decision about why Mr C could access alternative housing and offered to consider a Deferred Payment Scheme to give him time to secure alternative housing.
20. However the Council is at fault for failing to communicate how it decided not to award a discretionary disregard. In particular Mr C’s argument that he gave up his property/home to care for Mrs C.
21. Similarly it accepts Mr C was living with his mother but does not provide dates of when Mr C moved into the property and when Mrs C was assessed as needing 24 hour care. CASS says “could the relative have reasonably expected to have the property taken into account at the time they moved into the property”. Without these dates it is difficult to establish whether there is fault in the Council’s decision making.
22. This has resulted in uncertainty about whether the Council has properly made the decision, and insufficient detail so Mr C can fully understand the Council’s decision and a potential missed opportunity to present further information he may feel is necessary.

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Agreed action

23. I have found procedural fault in the actions of the Council which has caused the complainants injustice. The Council has agreed to take the following actions to remedy the complaint.
24. Within one month of the final decision:-
1. apologise to Mr C and Ms C about the failure to provide full reasons for its decision not to award a property disregard.
2. write to Ms C explaining the reasons for the Council’s decision not to award a discretionary property disregard, and in particular dealing with Ms C’s and Mr C’s assertion that Mr C had given up his property and moved in with Mrs C to care for her. This should include the Council’s conclusions relating to the timing of Mr C’s move into the property and the date when Mrs C was assessed as needing 24 hour care.
25. Within two months of the final decision:-
1. remind staff about clarity and completeness when communicating decisions to people about discretionary financial decisions.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. I consider there has been procedural fault which has caused Ms C, Mrs C and Mr C injustice. I consider the agreed actions above are suitable to remedy the complaint. I have now completed my investigations and closed the complaint.

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Investigator's decision on behalf of the Ombudsman