Summary: We will not investigate Ms X’s complaint about the Council’s decision not to apply a property disregard because there is insufficient evidence of fault in its decision-making process to justify our involvement.

The complaint

1. Ms X complained the Council has refused to agree a property disregard in relation to the assessment of her relative, Mr Y’s contribution to his care fees. She says Mr Y does not have the funds to pay for his care in full and she is not able to assist him to do so. Therefore, she says the Council’s actions have put her father’s care home placement at risk and this has caused her distress.

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The Ombudsman’s role and powers

2. 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
• there is another body better placed to consider this complaint.

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

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How I considered this complaint

3. I considered information provided by Ms X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

What happened

5. Mr Y gave Ms X some capital from the sale of his home so she could buy a larger property, and he could live there. However, by early 2024, Mr Y’s health had declined, and he moved to a care home. The Council carried out a financial assessment and decided the gift of capital to Ms X amounted to a deprivation of assets. It therefore said it would treat Mr Y as though he still had that capital and this meant he would need to pay the full cost of his care. This was upheld on appeal, and we have previously considered a complaint about that decision.
6. In September 2024, solicitors acting for Ms X, suggested that the Council was treating Mr Y as though he had a beneficial interest in Ms X’s property and therefore it should be considering whether to apply a property disregard. This would mean the value of Mr Y’s share in Ms X’s property was not considered when assessing how much Mr Y should pay towards his care fees.
7. After further communication, including requesting further comments and documents, the Council replied that Mr Y had given the capital to Ms X. There was no suggestion that he would have an interest in the property, and his name was not put on the title deeds. It said it expected to see formal evidence of a beneficial interest before it would consider applying a property disregard. Since Mr X was not regarded as having an interest in the property, there was no basis for disregarding it when assessing how much he had to pay towards his care.

My assessment

8. We are not an appeal body. It is not our role to say whether the Council’s decision not to agree a property disregard is correct. We can consider the decision-making process but, unless there was fault in that process, we cannot comment on the decision reached.
9. The Council is treating Mr Y as though he still has the capital he gifted to Ms X. This is in line with the Care and Support Statutory Guidance (the Guidance) in relation to “notional capital” where the Council decides there has been a deprivation of assets.
10. It is open to the Council to disregard the value of property that Mr Y owns in certain circumstances, which are set out in the Guidance.
11. When carrying out the financial assessment, the Council is only considering capital that Mr Y owns and income he receives.
12. The Guidance says a capital asset is normally defined as belonging to the person in whose name it is held, the legal owner. A person may have a beneficial interest where they enjoy the benefits of ownership, even though the title of the asset is held by someone else. Where ownership is disputed, it says a council should seek written evidence to prove where the ownership lies.
13. After making appropriate enquiries, the Council was not satisfied that Mr Y has a beneficial interest in Ms X’s property and therefore that there was no basis for applying a property disregard. It set out its reasons for deciding this and it reached its decision without undue delay. There is, therefore, insufficient evidence of fault in the Council’s decision-making to justify further investigation.
14. If Ms X disagrees with the Council’s decision about beneficial ownership, she could consider court action. Only the court can determine whether Mr Y has a beneficial interest in her property, since this is a question of law and not one the Ombudsman could determine.

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Final decision

15. We will not investigate Ms X’s complaint because there is insufficient evidence of fault to justify our involvement.

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Investigator's decision on behalf of the Ombudsman