Summary: Mrs X complains the Council failed to deal properly with the family’s request for a discretionary 12-week property disregard for her mother-in-law. The Council failed to explain the reasons for not granting a discretionary 12-week property disregard. This creates doubt over whether it made the right decision. To remove that doubt, the Council needs to reconsider its decision.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council failed to deal properly with the family’s request for a discretionary 12-week property disregard for her mother-in-law, Mrs Y.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)
4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the documents the Council has provided;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mrs X and the Council, for me to consider before making my final decision.

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What I found

What happened

6. Mrs Y has dementia. In March 2020 she was living in her own home with support from her family and attending day centres five days a week. She had told her family she wanted to remain independent for as long as possible and did not want to live in a care home. With that in mind, Mr & Mrs X started making changes to their home so Mrs Y could live with them when she was ready. They started work creating a bedroom and accessible bathroom on the ground floor in late 2019 but had not completed by 23 March 2020, when England entered the first lockdown because of COVID-19.
7. Mrs Y’s day centres closed on 23 March. Her family tried to mirror that support by taking her to their home during the day then returning her to her own home. But Mrs Y did not adapt to this and became more confused, on one occasion wandering in the street in the early hours of the morning. In April they decided she should move in with them, despite not having completed the work to their home. However, Mrs Y needed support getting to the upstairs bathroom and her confusion increased. Because of her dementia and erratic sleeping pattern, she needed 24-hour support. This meant Mr & Mrs X did not have the time to finish the work to their home or do work to Mrs Y’s home so they could rent it out.
8. When Mr & Mrs X went on holiday in October, they arranged for Mrs Y to stay in a care home while they were away. However, while they were away they realised they could not continue to look after her when they returned, so the placement in the care home became permanent.
9. When the Council assessed Mrs Y’s finances it decided she had to pay the full cost of her care because she owned a property which had not been her main or only home since she moved in with Mr & Mrs X in April 2020. The Council offered her a deferred payment, which meant her property would not have to be sold during her lifetime.
10. In February 2021 the Council’s legal department advised officers to consider a discretionary 12-week property disregard for Mrs Y, taking account of her wider circumstances and the COVID-19 pandemic.
11. Mrs X wrote to the Council in June asking it to agree a discretionary 12-week property disregard. She explained at some length about their original plans for looking after Mrs Y and how COVID-19 had forced them to alter them. She said they had intended Mrs Y’s move to their home in April to be permanent. She said the disregard would give them time to plan how to fund Mrs Y’s care in a sustainable way, so she did not have to move to another care home when her money ran out. She said the plan was to use:
• Mrs Y’s pensions and Attendance Allowance;
• rental income from her home; and
• money from Mrs X’s full-time work which she had started to cover some of the costs.

She said they did not yet have the full picture as they needed to know the tax implications from renting out Mrs Y’s home.

12. When the Council replied it referred to the Guidance on mandatory 12-week property disregards (see paragraph 16 below) and said:
• “In this instance, my understanding is that no mandatory disregard would apply within the financial assessment.”

Other Council documents show this was because Mrs Y’s property stopped being her “main or only home” when she moved in with Mr & Mrs X, long before her move to residential care became permanent.

13. The Council also referred to the guidance on discretionary property disregards (see paragraphs 19 and 20 below) and said:
• “In considering the case and in view of the information available to me, I consider that it would be reasonable for the property to be included and I see no reason for public funds to be used to maintain the property, even for a 12‑week period, therefore your request for the property to be disregarded under the Council’s discretionary powers is declined in this instance.”

It gave no further explanation for its decision and made no reference to the circumstances set out in Mrs X’s letter.

Is there evidence of fault by the Council which caused injustice?

14. The Care and Support Statutory Guidance (the Guidance) includes guidance on assessing the finances of someone receiving care and support, including property disregards.
15. Anyone with capital over £23,250 has to pay the full cost of their care. This will include the value of a property which is no longer someone’s “main or only home”, unless it is subject to a disregard.
16. The purpose of the mandatory 12-week property disregard is to: “create space for people to make decisions as to how to meet their contribution to the cost of their eligible care needs”. Councils must disregard the value of a person’s “main or only home” for 12 weeks when they first enter a care home as a permanent resident.
17. Mrs Y’s property ceased to be her main or only home when she moved in with Mr & Mrs X. On that basis, the Council was not at fault for deciding she was not eligible for a mandatory 12-week property disregard when her move to residential care became permanent.
18. Mrs X’s request for a discretionary 12-week property disregard was based on the pandemic having contributed to a decline in Mrs Y’s condition which forced them to alter their plans for meeting her needs in a way they could not have foreseen.
19. The Guidance says:
• “In addition, a local authority has discretion to choose to apply the [12-week property] disregard when there is a sudden and unexpected change in the person’s financial circumstances. In deciding whether to do so, the local authority will want to consider the individual circumstances of the case. Such circumstances might include a fall in share prices or an unanticipated debt.”
20. The Guidance also says:
• “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. An example where it may be appropriate to apply the disregard is where it is the sole residence of someone who has given up their own home in order to care for the person who is now in a care home or is perhaps the elderly companion of the person.”
21. The Council did not explain the reason for its decision to reject Mrs X’s request for a discretionary 12-week property disregard with reference to Mrs Y’s specific circumstances and the COVID-19 pandemic, as its own legal department had advised. That was fault by the Council. It is well established, including in the Courts, that councils need to provide reasons for their decisions. The Council’s failure to explain its decision leaves doubt over whether it has considered the matter properly. That is an injustice. The Council needs to remedy this by reconsidering its decision and, if it remains its view that it should not grant a discretionary 12-week property disregard, it needs to explain its decision with reference to Mrs Y’s specific circumstances and the COVID-19 pandemic.

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Agreed action

22. I recommended the Council within four weeks reconsiders Mrs X’s request for a discretionary 12-week property disregard and writes to her explaining the reasons for its decision. The Council has agreed to do this.

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Final decision

23. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman