Summary: Mr X complains the Council has failed deal properly with the request for a discretionary property disregard for his father’s home, where his sister still lives. The Council has failed to give proper consideration to Mr X’s request. It needs to reconsider his request and address the issues he has raised.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has failed to deal properly with the request for a discretionary property disregard for his father’s home where his sister still lives. This would leave her homeless when the property is sold to pay his father’s care home fees.

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

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mr X and the Council, for me to consider before making my final decision.

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What I found

What happened

5. Mr X’s father, Mr Y, has dementia. He moved to a care home in 2019. His daughter, Ms W who is in her 50s, remained in the family home where she had lived since her parents moved there when she was a child. The NHS funded Mr Y’s care until 2021. The Council then took over responsibility for funding his placement.
6. When the Council did a financial assessment, it decided to take Mr Y’s property into account on the basis it did not qualify for a mandatory disregard, other than the 12-week disregard which applies following a change in a person’s circumstances (e.g. the end of NHS funding). This meant Mr Y had to pay the full cost of his care home placement after 12 weeks.
7. Mr X asked the Council to make an extraordinary exception on the basis his sister had lived in the property since their parents moved there in 1971. He also said she had recently been diagnosed with cancer. When the Council replied in August 2022, it said Ms W did not meet the criteria for a mandatory disregard as she was neither over 60 nor under 18. It said she may meet the criteria on the basis she was incapacitated. It invited Mr X to provide evidence of her receiving a relevant state benefit or medical evidence confirming a current disability. It said without either of these it would include the property in Mr Y’s financial assessment. It said it had the power to apply a discretionary disregard and referred to the statutory Guidance (see paragraph X below). It said the example in the Guidance did not apply as Ms W had lived in the property since childhood. It said Mr Y did not need to sell his home as, provided the criteria were met, he would be eligible for a differed payment agreement (so the property would not have to be sold while he remained alive).
8. Mr X asked the Council to review its decision. He noted that one of the grounds for a discretionary disregard was if someone had given up their home to move in to care for someone. He said his sister had lived in the property for over 50 years, without ever moving out, and had supported both their parents when they had cancer. He said she was never paid or registered as an official carer but had been one in everything but name. He said to disregard a property when someone had given up another home, but not when they had always lived there did not treat people equally.
9. When the Council replied, it said it was satisfied it had fully explained the Care and Support Statutory Guidance regarding disregarding a property and why his father’s property did not qualify for a disregard as the criteria had not been met. It said no evidence had been provided to substantiate the request for a discretionary disregard.

Is there evidence of fault by the Council which caused injustice?

10. The Care and Support Statutory Guidance sets out the circumstances when councils must disregard property in a financial assessment. They include when a relative (e.g. a daughter) lives in the property who is either over 60 or is incapacitated. This did not apply to Ms W and Mr X does not dispute this.
11. Under Annex B, paragraph 42 of the Guidance:
• “A local authority may also use its discretion to apply a property disregard in other circumstances. However, the local authority will need to balance this discretion with ensuring a person’s assets are not maintained at public expense. 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.”
12. The Council dismissed Mr X’s request for a discretionary property disregard on the basis his sister’s circumstances did not fit in with an example in the Guidance. However, the examples in the Guidance do not preclude other circumstances where a discretionary disregard might be relevant. The evidence shows the Council did not consider that possibility. That is fault by the Council. The Council needs to reconsider Mr X’s request for a discretionary property disregard addressing the point she has made:
• his sister did not have another home to give up, as she had lived with her parents her whole life;
• she was able to support their parents when they were both ill because she was living with them;
• the Council’s decision is likely to result in her being made homeless after their father dies; and
• this is likely to have a significant impact on her mental health.

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Agreed action

13. I recommended the Council:
• within four weeks, reconsiders its decision, having first discussed his application for a discretionary property disregard with Mr X; and
• within eight weeks, takes action to ensure officers give proper consideration to exercising the Council's power to make discretionary property disregards.
14. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.

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Final decision

15. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman