Summary: We will not investigate this complaint about charging for adult social care. This is because there is not enough evidence of fault in the Council’s decisions. It has followed a proper process and clearly explained its decisions. The Ombudsman cannot settle the dispute about whether a mandatory property disregard should apply.

The complaint

1. Mr C says the Council has failed to disregard a property in the financial assessment for residential care costs. Mr C says a relative over the age of 60 lives at the property and has used it as their main or only home since before the homeowner (X) moved to a residential care home.
2. Mr C also says the Council said it would charge as a temporary resident, but then changed its mind and charged as a permanent resident.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.
6. I considered the Care Act 2014 and associated statutory guidance.

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My assessment

7. When X moved to a residential care home, the Council must then complete a financial assessment to decide what, if anything, X should pay toward their care. X owns a property and Mr C argues the property should be disregarded from the financial assessment.
8. The rules say the property must be disregarded if a relative aged 60 or over occupies the house as their main or only home and has continuously occupied it since before the person went into a care home. Where it is not clear if the property is occupied as the main or only home the council should undertake a factual inquiry and weigh up all relevant factors to reach a decision.
9. The Council sought information from Mr C, and considered all information provided. The Council considered matters again at appeal. The Council has decided there is no evidence to support the relative lived at the home continuously before X went into residential care, or that it was their main or only home.
10. It is not the Ombudsman’s role to say whether a mandatory disregard should be applied, only to look at how the Council made its decision. The Council has undertaken a factual inquiry and weighed up the evidence to reach its decision. It has reconsidered the decision at appeal, considering the arguments and information Mr C provided, and has given the reasoning for its decision. As there is no evidence of fault in this process, the Ombudsman cannot question or criticise the Council’s decision even though Mr C disagrees with it.
11. The Council also has discretion to apply a disregard even where the qualifying criteria is not met. The Council has invited Mr C to request this, outlining any reasons why he thinks the Council should provide it, and the Council will then consider it. Mr C has not done this because he thinks a mandatory disregard applies. I cannot criticise the Council as it has had mind to its discretion and invited Mr C to apply.
12. Financial assessments are completed differently depending on whether someone is a temporary or permanent resident in a care home.
13. The Council was at first completing X’s financial assessment as a permanent resident, following a best interest decision under the Mental Health Act 2005 that it was in X’s best interests to live permanently in a residential care home. X was saying they wanted to return home, so the case went to the Court of Protection to decide on X’s capacity to decide where to live. During that process the Council assessed X as a temporary resident in case he did return home. The Court of Protection decided X should stay in permanent residential care. As the plan was therefore always for X to be in permanent residential care from the time of the best interest decision the Council assessed X financially on that basis. I can see this caused some confusion to Mr C as he paid fees based on X as a temporary resident, and then the Council sought more money when it assessed X as a permanent resident, backdating it to the best interest decision. I can see no reason for the Ombudsman to question or criticise the Council’s decision to charge X as a permanent resident from the date the best interest decision decided this was needed to meet X’s care and support needs. The Council has clearly explained the reasons for its decision.

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Final decision

14. We will not investigate Mr C’s complaint because there is not enough evidence of fault in the Council’s decision making. The Council has followed a proper process and has clearly explained the reasons for its decisions.

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Investigator's decision on behalf of the Ombudsman