Summary: We will not investigate Mr X’s complaint, brought by Miss Y, about the Council’s decision to include Mr X’s main residence as an asset available for use in paying care fees when calculating his finances and asking him to separately register the flats in the property to realise them as assets. There is not enough evidence of fault in the Council’s decision-making process to warrant us going behind its decision. It is not unreasonable for Mr X and his family to put the legal dispute at the core of the complaint before a court. We also cannot achieve the complaint outcomes sought.

The complaint

1. Mr X and his wife Mrs X co-own a property. It is registered with Land Registry as one property but has been divided into self-contained flats. Mrs X lives in one of the flats and rents the others. Mr X is in a residential care home placement. Miss Y is Mr and Mrs X’s daughter and complains the Council:
1. wrongly decided her parents’ main residence should be included as an asset available for use in paying Mr X’s care fees when calculating his finances;
2. is unfairly asking Mr and Mrs X to register the property as separate flats, to sell them as assets to fund Mr X’s care.
2. Miss Y wants the council to:

• follow the Care Act and Land Registry Act and find her parents own one home which is to be excluded from Mr X’s financial assessment;
• pay for the part of the care Mr X cannot pay for himself;
• fulfil its duty of care to meet Mr X’s assessed needs in a care home.

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The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information from Miss Y and the Ombudsman’s Assessment Code.

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My assessment

7. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if it was reached after following proper process, even if someone disagrees with the decision.
8. In considering Mr X’s finances for care fee purposes, the Council gathered relevant information about his assets, including his share in the property at issue. Officers reached their position that the portion of Mr X’s property in which Mrs X is not still living is a realisable asset. They reached this position after seeking and receiving legal advice on the interpretation and application of the legislation and guidance relevant to the matter. This was the appropriate process for the Council to follow to make its decision. We recognise Mr X and Miss Y disagree with the Council’s decision. But we cannot overturn or criticise the outcome of a Council decision-making process which has not involved fault.
9. In any event, the issue at the core of Mr X’s complaint is not one we can determine. The key matter is a dispute about the Council’s interpretation of the Care Act 2014 when determining the assets available to Mr X to fund his ongoing care provision. The Council and its legal advisors have reached their view; Mr X’s legal advisors have reached a different view. We cannot make rulings on legal disputes so will not investigate here. It would not be unreasonable for Mr X and his family to take the matter to court. This is because it is only a court which has the expertise and standing to make such determinations, and its ruling would be binding on the parties involved, whereas any decision by us could only make recommendations to the Council.
10. We note the outcomes Mrs Y seeks from the complaint. To achieve these outcomes, we would have to find the Council’s position is wrong and agree with the legal interpretation and position taken by Mr X’s legal advisors. As explained above, this outcome hinges on a legal dispute we cannot resolve. That we cannot achieve the complaint outcomes sought here is a further reason why we will not investigate.

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Final decision

11. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s decision-making process to warrant us going behind its decision; and
• it is not unreasonable for him and his family to put the core legal dispute before a court; and
• we cannot achieve the complaint outcomes sought.

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Investigator's decision on behalf of the Ombudsman