Summary: There is no evidence that the Council failed to consider Mrs X’s circumstances properly or failed to follow the guidance in respect of valuation of her home. However, the independent valuation process has not been tested out and that should be allowed to proceed. The investigation will be discontinued.

The complaint

1. Ms A (as I shall call her) complains about the way the Council has considered the payment of care fees for her mother Mrs X. She complains the Council has not fully considered the difficulty of marketing her mother’s property while cladding works remain outstanding.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

3. I considered the information provided by the Council and by Ms A. I spoke to Ms A and also considered her response to the Council’s reply to my enquiries. Both parties had an opportunity to comment on a draft of this statement, and I considered their comments before I reached a final decision.
4. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (Section 26A or 34C, Local Government Act 1974)

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What I found

Relevant law and guidance

5. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
6. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint financial resources. A council must treat each person individually. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
7. The Care and Support Statutory Guidance details how councils should assess a person’s capital. It says “In assessing what a person can afford to contribute a local authority must apply the upper and lower capital limits. The upper capital limit is currently set at £23,250 and the lower capital limit at £14,250…. A person with assets above the upper capital limit will be deemed to be able to afford the full cost of their care.”
8. The guidance goes on, “If there are any disputes, a precise valuation should be obtained. However, the local authority should bear in mind how close someone is to the upper capital limit when deciding whether or not to obtain a precise valuation….Where a precise valuation is required, a professional valuer should be asked to provide a current market valuation. Once the asset is sold, the capital value to be taken into account is the actual amount realised from the sale, minus any actual expenses of the sale.”
9. The Grenfell Tower fire of 14 June 2017 and the Bolton Cube fire of 15 November 2019 revealed that large numbers of buildings had been clad in dangerously combustible materials, comprising a combination of flammable cladding (the outer covering) and/or flammable insulation. There has been a significant impact on owners wishing to sell affected buildings.

What happened

10. Mrs X has Parkinson’s disease and requires care at home. Her husband, Mr X, also requires some care.
11. Mrs X owns a flat in Cheltenham purchased in 2010 which was let out to tenants. Following the Grenfell Tower fire of 2017, it was discovered the flat had external combustible cladding and required extensive works to remove it. Ms A says her mother received an estimate in 2020 of around £35,000 for the works (she says it would be more in the region of £50,000 now.) Mrs X now lives in a home in Brighton she purchased in 2021 following the sale of a larger property. Ms A says her mother downsized to her current home to release some funds to pay for the cladding works which were put into a separate account. The Council says it understands Mrs X’s former home was no longer suitable for her disabilities.
12. Mrs X began to receive home care services arranged by the Council in 2021. Ms A says at that time the Council recognised the difficulty of realising the capital assets and only charged Mrs X a contribution of £192 towards the cost of her care. The Council says in fact the contribution was charged at that rate because Ms A had not declared the Cheltenham flat as part of Mrs X’s assets. Ms A says she had presumed it belonged to Mr X and only later found out it was in her mother’s name.
13. In 2022 when the Council found that Mrs X also owned the Cheltenham flat, it proposed to charge her the full cost of her care as she had assets over the upper limit. In November 2022 Ms A’s solicitor wrote to the Council. She said “A survey of the external façade of (the building) was carried out in November 2019. The inspection consultants found there is combustible cladding on the outside of the block, as the result of which there is a fire risk, and recommended remedial work. The property management company has sought quotes for the work required and applied for government grants to pay for it.

The remedial work was due to commence in 2021 but for a number of reasons it did not. The outcome of an application for government grant funding is awaited and the leaseholders of the …. flats do not yet know how much the work will cost or if they will have to pay for all or some of it, and if some, then how much.”

14. The solicitor went on to explain that the leaseholders were unable to sell their properties until the work was done, and the managing agents had told them mortgage lenders were unwilling to lend to prospective purchasers on the flats. She said although the Council had said the cladding issues did not mean the flat was worthless, it had not made any attempt to ascertain the actual value or what its value would be when the work was done. She said the Council should do so as soon as possible under the terms of the guidance. She also quoted the section of the guidance which said “Money acquired specifically for repairs to or replacement of the person’s home or personal possessions provided it is used for that purpose” should be disregarded for at least 26 weeks and pointed out the money (£40,000) set aside for the cladding works had been set aside for nearly 18 months and should not therefore be included in the assets.
15. The Council’s head of financial assessments responded in December 2022. She said Mrs X had been “assessed to self-fund the care package that Brighton and Hove City Council has commissioned on her behalf We would usually expect (Mrs X) to pay the fees direct to the care agency but in view of the current financial issues, BHCC agreed temporarily to pay the agency and recharge (Mrs X) via the council’s billing system.” She said the Council had checked the recent sales of the flats where Mrs X owned a property and said three flats had been sold at an average of £134,000. She continued “We can of course get a professional valuation if this continues to be disputed.”
16. The head of financial assessments said there was no current available estimate for the works needed to remove the cladding and while this “may limit the pool of potential buyers it does not render it unsaleable nor worthless as shown by the recent sale of flat number (X).” She said the Council did not accept the flat was unsaleable nor could it be assessed as though it was a property abroad, as the solicitor had suggested. She reiterated the offer to instruct the District Valuer to provide a valuation. She did not accept the 26-week disregard should apply as the money which had been ring-fenced had not been “acquired specifically for repairs to or replacement of the person’s home” but was the equity from selling a previous property. She said when the cladding works were actually paid for the Council would allow that amount against the capital value of the building.
17. In further correspondence in January and May 2023 the Council continued to offer to instruct the District Valuer if Ms A arranged for access to the flat.
18. Ms A complained to the Ombudsman. She said the Council had failed to give proper weight to the difficulties of the cladding issues with the flat and the fact that her mother had downsized from her previous property to release money to pay for it. She said the Council would not agree to their suggestion to treat the property as though it was abroad and therefore not able to be sold or as capital which was not immediately realisable at the present time. She said the Council was acting as though because a situation was not foreseen within the guidance, it therefore did not exist and their problems with a sale were being disregarded.
19. Ms A also said in respect of the offer to instruct the District Valuer, “Whatever the value an independent valuer put on the property, we were told by local estate agents and the building managing agent, that it will not sell with the cladding issue still in the balance. Therefore the property is worthless if no buyer can be found.”
20. The Council says that at the time of its last correspondence with Ms A she was hoping to be able to market the property which would obviate the need for the District Valuer to be involved. It says that it remains ready to instruct the District Valuer but would need to arrange access to the property and for Ms A to complete the financial statement and questionnaire.

Analysis

21. The Council has in my view acted in accordance with the guidance so far in the way it has assessed Mrs X’s finances.
22. However, there remains a dispute over the value of the flat and until that has been resolved it is not possible to say whether the Council should consider the matter differently. The way to resolve that impasse, which is provided for in the guidance and has been offered by the Council, is an independent valuation by the District Valuer.

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Final decision

23. The valuation by the District Valuer should be enabled to proceed. For that reason, I have discontinued this investigation at this stage.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman