Summary: There is no fault in the Council’s decision not to disregard capital from March to December 2024 when carrying out a financial assessment for care home fees. The financial injustice to Mr X, caused by the late payment of the mortgage, was not the fault of the Council.

The complaint

1. The complainants are a firm of solicitors who act on behalf of Mr X. The solicitors say the Council’s decision not to disregard capital from March to December 2024 was incorrect. They say this has caused Mr X a financial injustice, as he has been assessed as needing to make a financial contribution towards care fees.

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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 how the organisation made its decision, 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(1), as amended)

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How I considered this complaint

4. I considered evidence provided by the solicitors and the Council as well as relevant law, policy and guidance.
5. The solicitors and Mr X had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

6. Mr X no longer has capacity to manage his finances, they are managed by a solicitor. Mr X owned a property, jointly with his late wife, which had a mortgage on it.
7. Mr X has received care at home since 2021. The Council funded this until deputyship was granted to the solicitor in March 2022.
8. The Council completed a financial assessment in September 2022 and disregarded Mr X’s half of the couple’s savings to allow the solicitors time to use the savings to repay some of the mortgage.
9. The solicitor told the Council on 13 February 2024 that the savings had not been used to pay the mortgage and that Mrs X was now in hospital.
10. On 30 March 2024 the Council made the decision to include Mr X’s savings as capital in the financial assessment and so he was assessed as needing to self fund his care from that date. The Council wrote to the solicitor and gave them one month to appeal the decision. The solicitor did not do so.
11. The solicitor provided proof on 7 December 2024 that they had used Mr X’s £55,000 in savings to pay the mortgage and the Council funded Mr X’s care from that date.
12. In response to the solicitor’s complaint, the Council said ‘our initial decision to disregard Mr X’s capital from 31 July 2021 until 29 March 2024 was based on the declaration that the solicitor was going to repay Mr X’s mortgage, however the mortgage was not repaid. Mr X had access to his capital (savings) and the capital does not fall under any of the disregard capital sections. Therefore, our decision to take Mr X’s capital into account for the period of 30 March until 6 December 2024 is correct and any monies owed for this period are a private arrangement between Mr X, the solicitor and the care provider’.
13. The Care and Support Act, Annex B, Paragraph 33 says capital that should be disregarded is ‘the value of a right to receive outstanding instalments under an agreement to repay a capital sum’. The Council has said that it interprets this as a right to receive capital, i.e. repayment of capital that may be due to the service user for instance from a third party. E.g. repayment of sums previously lent via a private mortgage of personal finance agreement. The Council says ‘it does not consider that it refers to debts that are due to be repaid by the service used as the guidance specifically states ‘the value of a right to receive’ and gives examples related to incomes that could be received, i.e. annuity income, rental income’ The Council says ‘it does not consider that this section refers to the repayment of an interest only mortgage either before or after the date called in’.
14. Our role is not to make a determination on opposing views of a legal point, this is for the courts to do. It is clear that the Council has taken account of the law and guidance when making its decision on whether to take capital into account from 30 March 2024 until 6 December 2024. So, I can find no fault in the Council’s decision. It may be that Mr X’s solicitor disagrees with the Council’s interpretation of the law. In which case, the matter will need to be decided by the courts as rulings on the correct interpretation of a point of law are made in a court of law.

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Decision

15. I have completed my investigation of this complaint and I find no fault.

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Investigator's decision on behalf of the Ombudsman