Summary: Mrs X complained the Council placed her mother in a care home rather than providing care at home. Mrs X also complained about the Council’s decision to decline both a mandatory and discretionary disregard to the family home. Mrs X also complained the Council failed to complete a Continuing Health Care assessment of her mother. We did not find fault with the Council placing Mrs X’s mother in a care home. We also did not find fault with the Council’s decisions to decline a mandatory or discretionary disregard for the family home. We did find fault with the Council failing to get an independent valuation of Mrs X’s mother’s share in the property and for delays in completion of the Continuing Health Care assessment. The Council agreed to complete an independent valuation of Mrs X’s mother’s share in the property and reconsiders its financial assessment in light of this. The Council also agreed to apologise to Mrs X and pays her £250 for the distress and uncertainty its delay caused her.

The complaint

1. Mrs X complained the Council failed to provide care at home for her mother and instead placed her mother in a nursing home.
2. Mrs X complained the Council has failed to grant either a mandatory or discretionary property disregard for the family home following her mother entering a nursing home.
3. Mrs X says the Council has failed to consider a discretionary disregard based on part-ownership. She says she and her husband own 50% of the family home with her mother owning the other 50%. Mrs X says the Council has used her mother’s ownership of 50% as 50% of the value of the property rather than its value in the open market.
4. Mrs X also complained they have been asking for a Continuing Health Care (CHC) Assessment since March 2023 but the Council has not carried this out.

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The Ombudsman’s role and powers

5. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Placing Mrs X’s mother in a care home

The Care Act 2014

10. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
11. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)

Mental Capacity Act 2005

12. A person lacks mental capacity to make a decision if they have a temporary or permanent impairment or disturbance of the brain or mind and they cannot make a specific decision because they are unable:
• to understand and retain relevant information; or
• weight that information as part of the decision-making process; or
• communicate the decision (whether by talking using sign language or other means). (Mental Capacity Act, 2005 section 3)
13. The Code of Practice to the Mental Capacity Act (the Code) is statutory guidance which councils must have regard to. The Code sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt. (Code of Practice paragraph 4.34
14. Where an adult lacks capacity, the law says any decision or action taken on their behalf must be in their best interests. The Mental Capacity Act and the Code provide a checklist of factors decision-makers must work through when deciding what is in a person’s best interests.
• Take into account all relevant circumstances.
• If faced with a particularly difficult or contentious decision, practitioners should adopt a ‘balance sheet’ approach.
• Involve the individual as fully as possible.
• Take into account the individual’s past and present wishes and feelings, and any beliefs and values likely to have a bearing on the decision.
• Consult as far and as widely as possible.
• Record the best interests’ decision. Not only is this good professional practice, but decision-makers will need an objective record should the decision or decision-making processes later be challenged.
15. Chapter 8 of the Code says an application to the Court of Protection may be necessary for disagreements that cannot be resolved any other way. If professionals are concerned about a decision affecting the welfare of a person who lacks capacity, the relevant local authority should make the application. Examples of cases where a court decision might be appropriate include where there is a major disagreement about where a person who lacks capacity should live.

What happened

16. Mrs X was in contact with the Council over a period of time about her mother. Following contact from Mrs X in February 2023, a council case co-ordinator attended Mrs X’s property on 24 February 2023 to complete a care assessment of Mrs X’s mother, who I shall refer to as Mrs Z.
17. The care assessment noted that Mrs X had contacted the Council because she could no longer cope with caring for Mrs Z and Mrs Z’s assets had now dropped below the upper threshold.
18. The Council’s case co-ordinator completed a care assessment and mental capacity assessment of Mrs Z. The case co-ordinator noted that it was completing the mental capacity assessment because it became clear Mrs Z was having difficulty with her decision making. The case co-ordinator noted Mrs Z lacked ability to understand, retain, use or weigh-up, or communicate decisions. Given Mrs Z’s permeant, non-fluctuating mental impairment, the case co-ordinator decided Mrs Z lacked the mental capacity to decide about her care needs.
19. The case co-ordinator also noted Mrs X’s belief that Mrs Z was not aware of what was happening or how much support she needed.
20. The case co-ordinator passed the matter for a best interests decision about how to provide care.
21. On 28 February 2023, the Council made a best interest decision to place Mrs Z in a care home. Within the Council’s decision it:
• Noted that Mrs X held a health and welfare power of attorney for Mrs Z making Mrs X the decision make for Mrs Z’s care.
• Noted that Mrs X had made it clear she could no longer provide care for Mrs Z.
• Noted that both Mrs X and her husband had said Mrs Z needed to move into a care home.
• Weighed up the positives and negatives of providing care for Mrs Z in her own home and in a care home.
• Noted it would not be possible to meet Mrs Z’s needs in her own home.
22. The Council completed a care and support plan for Mrs Z detailing the full cost of the care home. The Council decided on this specific care home being the closest to the family home.
23. On 10 March 2023, Mrs Z moved into the care home.
24. Mrs X raised concerns about the Council moving Mrs Z into a care home on 10 April 2023 before including this as part of her formal complaint on 8 May 2023.
25. The Council provided a response in April 2023 before providing its complaint response on 21 June 2023. The Council said both the care and support plan and its best interests decision agreed the best placement for Mrs Z was in a residential care home. The Council said it considered Mrs Z’s needs could no longer be met in the family home.

Analysis

26. The Council completed the care assessment suitably considering Mrs Z’s needs. When the Council completed this care assessment it determined that Mrs Z had eligible care needs and these would either need to be met at home or in a care home. Neither Mrs X nor the Council disputes that Mrs Z had eligible care needs.
27. The Council case co-ordinator had concerns about Mrs Z’s capacity to understand her care needs. The Council’s notes show this is a concern shared by Mrs X and supported by the existence of the power of attorney for health and welfare in place. The Council case co-ordinator took the correct steps to complete a mental capacity assessment based on these concerns. The case co-ordinator’s notes show they considered the relevant factors in the Mental Capacity Act in deciding that Mrs Z lacked the capacity to decide about her own care needs. I do not find fault with the Council.
28. Since Mrs Z lacked the capacity to decide about her own care, and the Council had assessed her as having eligible care needs, the Council acted correctly to complete a best interests decision about Mrs Z’s care.
29. The Council’s best interests decision shows it considered the relevant factors when deciding to place Mrs Z in a care home. The Council considered Mrs Z’s circumstances, weighed the positive and negatives of both options against each other and considered comments from both Mrs X and her partner.
30. While Mrs X expressed concerns the Council did not provide care at home because of a lack of availability, nothing in the decision-making process shows this was a factor the Council considered. The Council has followed the legislation and guidance in reaching its decision and I do not find fault.
31. The first record of Mrs X disputing Mrs Z’s residence at the care home was on 10 April 2023. By this point the Council had already placed Mrs Z in a care home and was providing care in this setting. The Council responded to Mrs X’s concerns in both April and June 2023. The Council said it considered Mrs Z’s needs were best met in a residential care home setting in line with the assessment and best interests decision it made. The Council has been consistent in its decision making on this point and I do not find fault.
32. When a fundamental disagreement occurs about where a person who lacks capacity should live this matter would need to go before the Court of Protection. Since Mrs Z was living in a residential care home, as the holder of the power of attorney, Mrs X would have needed to take this matter to the Court of Protection. The Ombudsman cannot displace the position of the Court of Protection.

Mandatory and discretionary property disregards

Mandatory property disregard

33. The Care Act 2014 sets out the rules for when a Council must disregard the value of a person’s main or only home. This is called a “mandatory” disregard.
34. Section 34 of the Care and Support Statutory Guidance says a Council must disregard the value of a person’s main or only home when:
• The person is receiving care in a setting that is not a care or nursing home.
• The person’s stay in the care is temporary.
• Where the person is no longer occupying the property but it is occupied by certain people as their main or only home. The criteria of people include a person’s partner, a lone parent, a relative aged over 60, a relative under 18 or an incapacitated relative.
35. The term “incapacitated” is not defined in the legislation but it is reasonable for a Council to conclude a person is incapacitated if they receive certain benefits or their degree of incapacity is equivalent to that required to quality for the benefit. The guidance says a council may need medical evidence to show the latter.

Discretionary property disregard

36. Section 42 of the Care and Support Statutory Guidance outlines that 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.
37. The Care and Statutory Guidance says that a council should consider a discretionary property disregard to safeguard categories of people from the risk of homelessness. A council should consider the individual circumstances of each case. The guidance recommends a council considers whether the relative living in the property would be rendered homeless or could have expected the property to be considered.

What happened

38. Following completion of the care assessment of Mrs Z’s needs and setting out the care costs on 7 March 2023, the Council began a financial assessment for Mrs Z.
39. The Council contacted Mrs X on 28 March 2023 to clarify details about Mrs Z’s savings and the property. Mrs X confirmed Mrs Z had below the upper threshold in savings and Mrs Z jointly owned the property with Mrs X and her partner. The Council asked Mrs X to write a request for a discretionary disregard so it could consider this.
40. Mrs X made a formal request for both a mandatory and discretionary disregard on 10 April 2023. Mrs X said:
• Her family had lived in the property for thirty years and they had tied all their savings to the property.
• She and her partner owned a 25% share each in the property with her mother owning a 50% share.
• Her eldest son has Aspergers Syndrome and could receive Personal Independence Payments (PIP) but does not claim it.
41. On 25 April 2023, the Council responded to Mrs X’s request for a property disregard. The Council said Mrs Z would not qualify for a mandatory property disregard because Mrs Z owned two properties. The Council said it also could not consider a discretionary disregard because of Mrs Z’s ownership of two properties. The Council said since Mrs Z owns a 50% share in both properties it would consider her a self-funder for her care since her capital would exceed the upper threshold.
42. Mrs X responded to the Council’s decision on 5 May 2023. Mrs X said the second property named by the Council is an annex to the main property and not a separate property. Mrs X also reiterated that her son has Aspergers Syndrome and would be eligible for PIP.
43. On 8 May 2023, Mrs X lodged a formal complaint with the Council about its mandatory and discretionary disregard decisions.
44. The Council entered into discussions with Mrs X about the property, her health and her son’s health issues.
45. By 12 June 2023, the Council confirmed they would be considering the property as one property based on the new information provided. The Council confirmed it would therefore apply the 12-week disregard. The Council sought further information from Mrs X about hers and her son’s health.
46. Mrs X’s solicitor provided the requested information to the Council on 15 June 2023.
47. On 21 June 2023, the Council provided a complaint response. The Council said:
• It first considered the two properties separate but following receipt of further information from Mrs X it now considered these to be one property.
• It would now consider the mandatory and discretionary disregard requests based on Mrs Z only owning one property
48. On 20 July 2023, the Council completed its consideration of the mandatory and discretionary disregards. The Council said:
• It originally made an incorrect decision to decline the disregards because it considered the property was two separate properties.
• Neither Mrs X nor her partner were aged over 60 so a mandatory disregard would not apply on age.
• The medical information provided about Mrs X’s son confirmed his diagnosis of Aspergers Syndrome but also stated he was discharged with no medical difficulties. Since Mrs X’s son was not receiving PIP and it had inadequate evidence he would meet the eligibility criteria it could not decide a mandatory disregard was applicable on this basis.
• Application of a discretionary disregard is entirely at the discretion of the Council.
• It had considered the full circumstances but did not consider it should apply a discretionary disregard.

Analysis

49. The Council has shown it considered the relevant factors detailed in the Care and Support Statutory Guidance when deciding if it should not apply a mandatory disregard.
50. Mrs Z was no longer living in the property and was a permanent resident of a care home. None or Mrs X, her partner or her son qualified based on their age. This meant the only mandatory criteria to consider was whether Mrs X’s son would qualify as “incapacitated”. The Council has shown it considered the medical evidence provided and decided Mrs X’s son did not receive any relevant benefits and was not eligible for these. The Council was entitled to make this decision on the evidence available and I do not find fault.
51. The Council has also considered whether it should apply a discretionary disregard.
52. In its complaint response of 20 July 2023, the Council set out its thinking about why it did not consider it should apply a discretionary disregard in the circumstances. The Council has considered the individual circumstances of Mrs Z and her family in reaching its decision. As such, the Council has not fettered its decision but considered the matter on its own merits.
53. Additionally, since Mrs X and her partner own a combined 50% share of the property, even if the other 50% share was sold, this would not render them at risk of homelessness.
54. The Ombudsman cannot question a Council’s decision when it has followed the relevant legislation and guidance. The Council was entitled to reach its decision and I do not find fault.

Valuation of an asset

55. Annex B paragraph 14 of the Care and Support Statutory Guidance states a local authority will need to work out what value a capital asset has to take account of it in the financial assessment. The value of the property must be whichever is higher of the current market value or the surrender value of the capital asset.
56. Annex B paragraph 15 of the Care and Support Statutory Guidance states the current market value is the price a willing buyer would pay a willing selling.
57. Annex B paragraph 16 and 17 of the Care and Support Statutory Guidance states that if both the assessing officer and person agree the total value of the person’s capital is more than the upper threshold of £23,250, it is not necessary to get a precise valuation. But, if there are any disputes, a council should get a precise valuation of a property from a professional valuer to get the current market value.
58. Annex B paragraph 18 of the Care and Support Statutory Guidance states a council should aim to get a valuation completed as quickly as possible and within the 12-week property disregard period.

What happened

59. On 15 June 2023, Mrs X’s solicitor told the Council the market value for Mrs Z’s share in the property would be nil because Mrs X and her partner also own a combined 50% share.
60. The Council did not get a professional valuation of Mrs Z’s share of the property and instead took the 50% share as half of the value of the property when completing the financial assessment.

Analysis

61. The Council considered Mrs Z’s 50% share of the property was equal to 50% value of the property. Mrs X’s solicitor disputed this on 15 June 2023. Mrs X’s solicitor argued that since a family already occupied the property with their own 50% the market value of the property would be nil since no one would be willing to buy this share.
62. The Care and Support Statutory Guidance said the Council should get a valuation of Mrs Z’s share of the property since the valuation in the financial assessment had been disputed. The guidance also states the Council should aim to get this completed as quickly as possible. The Council failed to take any action to get a valuation of Mrs Z’s share in the property. This was fault.
63. The Council has advised in response to the Ombudsman’s enquiries that it would be willing to get a valuation for Mrs Z’s share of the property. The Council has advised it wants to see certain evidence about the purchase of the property to enable a precise valuation. Disclosure of further information is at Mrs X’s discretion but could help in the valuation. This is a matter the Council and Mrs X would need to discuss directly.
64. The Council’s fault has resulted in it potentially using an incorrect value of Mrs Z’s share in the property for her financial assessment. Additionally, this fault has also caused distress and uncertainty to Mrs X through the four month delay in agreeing to complete a valuation.

CHC Assessment

65. In some circumstances the NHS is responsible for meeting the full cost of someone’s care; this is called NHS Continuing Health Care (CHC).
66. The National framework for NHS continuing healthcare and NHS funded nursing care outlines the processes for deciding on and providing NHS funded care.
67. Paragraph 120 of this framework says local health and social care joint processes should be in place to identify individuals for whom it may be appropriate to complete a CHC Checklist. Wherever an individual requires a long-term care home placement with nursing or has significant support needs, a Checklist would be expected to be completed.
68. Point 17.1 of the guidance says a CHC checklist should be completed where there has been a reported change in an individual’s care needs.

What happened

69. When the Council case co-ordinator completed a care assessment of Mrs Z on 24 February 2023 it noted the Council would need to complete a CHC checklist of Mrs Z given her high support needs.
70. Council officers repeated the need for completion of a CHC checklist on 7 March 2023.
71. Mrs Z entered the care home on 10 March 2023 but a CHC checklist was not completed.
72. Mrs X chased the Council for completion of a CHC checklist and assessment on 10 April 2023 and 8 May 2023.
73. The Council completed a CHC checklist on 13 September 2023. On this date the Council decided Mrs Z was not eligible for CHC and would therefore be a self-funder.

Analysis

74. The National framework for NHS continuing healthcare says a CHC checklist should be completed when there is a reported change in a person’s care needs. Completion of the CHC checklist is not a matter solely for the attention of the NHS and this is something a council social care practitioner can also carry out.
75. The Council itself highlighted the need for the CHC checklist to be completed early in 2023 twice and Mrs X also chased this on two occasions. The Council failed to ensure the CHC checklist was completed until September 2023, six months after Mrs Z had a change in care needs and setting. This delay in completing the CHC checklist was fault.
76. While the delay did not cause a material difference to the outcome of Mrs Z’s funding, since the decision was to not award CHC funding, the delay of six months caused Mrs X distress and uncertainty about the funding for her mother’s care.

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Agreed action

77. Within one month of the Ombudsman’s final decision the Council should:
• Write to Mrs X to confirm what information it needs requires to get a precise valuation of the property.
• Arrange for an professional valuation of Mrs Z’s share of the property.
• Provide an apology to Mrs X and pay her £250 to reflect the distress and uncertainty caused through the Council’s delays in completing an independent valuation of Mrs Z’s share in the property in completing the CHC checklist.
78. Within two months of the Ombudsman’s final decision the Council should:
• Write to Mrs X to confirm the outcome of its reconsideration of the financial assessment of Mrs Z’s care costs following receipt of the independent valuation of Mrs Z’s share in the property.
79. The Council should provide us with evidence it has complied with the above actions.

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Final decision

80. There was fault leading to injustice. As the Council has accepted my recommendations, I have completed my investigation as I consider that a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman