Summary: The Council acted in line with government guidance when it included Mrs Y’s property in her financial assessment and so it was not at fault. As there was a dispute about the value of Mrs Y’s share in the property, the Council should have got an independent valuation because guidance required it to. The failure to obtain an independent valuation was fault which caused uncertainty about the outcome of the Council’s financial assessment. The Council will apologise, arrange an independent valuation by the District Valuer Service and review the financial assessment once the valuation is available.

The complaint

1. Mr X complained about the Council’s financial assessment for his relative Mrs Y’s care home fees. He said the Council:
1. failed to disregard the value of Mrs Y’s interest in the property
2. failed to obtain an independent valuation of her interest.

As a result, Mrs Y is not entitled to council funding and so has a financial loss.

2. Mr X also complained the Council misunderstood a subject access request and took too long to deal with it.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
6. 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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What I have and have not investigated

7. I have investigated the complaint in paragraph one. I did not investigate the other complaint because Mr X can raise the matter with the ICO at no cost and it is the expert body for complaints about data handling. There is no good reason for the LGSCO to investigate.

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How I considered this complaint

8. I considered evidence provided by the parties as well as relevant law, policy and guidance.
9. The parties 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

Relevant law and guidance

10. Care and Support Statutory Guidance (CSSG) is statutory guidance which councils should normally follow. CSSG says councils can charge people for care they provide and if there is a charge, this should follow national regulations on charging. Annex C of CSSG says:
• A person with capital above £23,250 can afford the full cost of their care (paragraphs 3 and 4) Below this level, a council will carry out a financial assessment (FA) of the person’s assets and will make a charge based on what the person can afford to pay (paragraph 12)
• Where a person has joint beneficial ownership of capital, except where there is evidence the person owns an unequal share, the total value should be divided equally between the owners (paragraph 12)
• A council needs to work out the value of a capital asset (a capital asset includes property/a house) to take account of it in a financial assessment. Valuation must be the current market value minus 10% for selling expenses (paragraph 14)
• If there are any disputes between the council and the person, a professional valuation should be sought to give a current market value as quickly as possible (paragraphs 17 and 18)
• Councils must disregard the value of a property if it is occupied by a relative over 60 as their main or only home where the property was occupied continuously by that relative since before the person went into a care home. The meaning of occupy is not closely defined. If there is a lack of clarity, the council should do a factual enquiry weighing up all relevant factors to make the decision. Unclear circumstances may include where a relative has to live elsewhere for employment reasons. (paragraphs 34 and 38)

What happened

Background

11. Mrs Y had care and support needs and was in hospital. Case notes indicate Mr X liaised with council officers and the hospital; he regarded it as unacceptable for her to remain in hospital and had asked the Council to arrange for her to go into a care home. Before the Council took any action, he arranged a care home placement.

2023

12. Mr X wrote to the council tax department in November 2023 to say Mrs Y had gone into a care home and he had registered on-line for himself to pay council tax at the property in future. At the end of November, a council officer sent an internal email saying Mr X said during a phone call that he was living at charitable accommodation, had been given notice to leave and would be moving into Mrs Y’s property which he jointly owned. Mr X later denied saying to the council officer he had been living in other accommodation.

2024

13. In February 2024 an internal email said:
• When Mr X completed the FA form he said he was living at Mrs Y’s property which he jointly owned after inheriting his wife’s share when she died.
• Council tax records showed he set up a new council tax account for himself on the day Mrs Y moved into the care home.
• Mr X advised he intended to move into the property after the need for placement was known.
14. In March 2024 an internal email said the outcome of the FA needed to be sent to Mr X including the decision that the property is not disregarded and including information about a DPA (a deferred payment agreement - where a loan for care home fees is secured against the property which would allow the individual to repay the fees after their death or when the property was sold) as Mr X would need to agree to a charge on the property.
15. Mr X said in an email to the Council that it should do a valuation of Mrs Y’s share. He referred the Council to a legal case which said the value may be minimal.
16. In May 2024, the Council and Mr X exchanged correspondence:
• The Council wrote to Mr X to say it had funded Mrs Y’s placement for 12 weeks between January and April (under the 12-week property disregard which is where the council ignores the value of the person’s home for the first 12 weeks of a permanent stay in a care home) and she would need to pay full cost after 12 weeks because of the value of her property.
• Mr X replied saying the Council should disregard the value of Mrs Y’s share because he was a relevant relative over 60 who was living there as his main home since his wife died. He said he did not rent or own another property.
• The Council said he had changed council tax records after Mrs Y’s move into the care home and before the move, it did not have him on record as living in the property. The Council said in a later email that its legal advice was that Mrs Y’s share would be included after the 12-week disregard. It said this was on the basis of council tax and electoral records which did not show him residing at the property, so it had not been continuously occupied since before Mrs Y went into care. It said it would offer Mrs Y a deferred payment agreement.
17. The Council received advice from its lawyers that as Mr X and Mrs Y owned the property as tenants in common (they each owned a separate share) each of the co-owners had to agree to the Council placing a charge on the property.
18. The Council wrote to Mr X in May saying Mrs Y was liable for the full cost of her care as she had assets over £23250 including her property.
19. The Council emailed Mr X in June saying its lawyers had advised it to include Mrs Y’s share of the property in the FA. The email went on to cite CSSG paragraph 33 and said its council tax and electoral records did not show him as living at the property when Mrs Y went into care.
20. Mr X complained to the Council in July 2024 raising the same issues as in his complaint to the LGSCO.
21. Mr X’s position is:
• He is over 60
• He and his late wife (Mrs X) were Mrs Y’s carers. Mrs X died and he took over caring duties.
• The property was owned jointly by his wife and Mrs Y. Since his wife’s death in 2022, he and Mrs Y are joint owners
• The fact that he changed the occupancy on the council tax account and added his name to the electoral roll with the property’s address after Mrs Y had moved into the care home did not mean he was not living there. He was tidying up administrative matters of the household and taking responsibility on after Mrs Y moved into care.
• The property was his main and only residence. He had a 30 day ‘at will’ lease elsewhere but this was his place of work and included a cottage which he had restored (a tenancy at will is a short-term arrangement which permits a tenant to occupy a property without a formal lease and each party can end it at any time)
• He had been staying at his and Mrs Y’s property overnight for many years as he was her sole carer at night. The work address was his postal address for convenience and security as he did not want paid carers accessing his post.
22. The Council’s complaint response said:
1. He told an officer during a phone call in November 2023 that he was living in charitable accommodation and had been given notice to leave and would be moving into Mrs Y’s property.
2. His home address as noted on the adult social care records was the charitable accommodation
3. He provided a copy of his tenancy at will for the charitable accommodation
4. Where there was uncertainty as to a person’s residence, the council needs to complete a factual enquiry weighing up all relevant factors.
5. It did not uphold his appeal because:
1. The case records only ever noted the charitable accommodation as his address.
2. There was no doubt as to his caring role or that he stayed at the property overnight when needed.
3. He provided correspondence from the Department for Work and Pensions (DWP), but it did not have an address on it. And the DWP guidance does not require him to live with Mrs Y to get carer’s allowance for her
4. He changed his address with council tax the same day Mrs Y went into the care home. The adult social care team did not know about Mrs Y’s discharge until after he had arranged the placement
5. His name was added to the electoral roll in January 2024 and the roll did not show him residing at the property previously
6. Guidance says a tenancy at will arises when a tenant occupies a property with the landlord’s consent indefinitely and either party can end it by giving notice at any time. He told an officer at the end of November that he had given notice and would be moving into the property. So it was the Council’s view that the charitable accommodation was his main residence before Mrs Y moved into the care home.
23. The complaint response did not deal with Mr X’s argument about the valuation of his share being nil and offered Mr Y a meeting to discuss matters further.
24. In January 2025, the Council sent Mr X a DPA agreement. He asked the Council to arrange an independent valuation. The Council referred him to Annex B of Care and Support Statutory Guidance and said a jointly owned 50/50 share would be valued at 50% less 10% expenses for sale. The Council suggested Mr X should obtain a valuation.
25. The Council also told Mr X it had not done a valuation, but it would do one if he applied for a DPA.
26. Mr X told the Council it had not applied case law correctly, he said the value of Mrs Y’s share was likely nil because he was not willing to sell his share or buy hers and that the Council needed to get a valuation as he disputed the Council’s position.

Findings

Failure to disregard the value of Mrs Y’s interest

27. CSSG sets out the decision process for the Council to follow to determine whether a relevant relative has continuously occupied a property as their main or only home since before the person went into care. CSSG says the Council needs to carry out a fact-finding exercise and considered relevant matters. The Council’s complaint response set out the factors it considered as summarised in paragraph 22(e) points 1 to 6. CSSG is not prescriptive about what the relevant factors are or how much weight the council is to give each factor. Those matters are therefore for the Council to decide. It has set out the factors it considered relevant in Mr X and Mrs Y’s case and reached a decision. There are no grounds for us to question the outcome.

Failure to obtain an independent valuation of Mrs Y’s interest

28. The Council was at fault in saying Mr X should obtain a valuation because where a person disputes the value of their interest in a property, CSSG says the council is responsible for obtaining a valuation. It should not have said Mr X needed to apply for a DPA for Mrs Y before it would get a valuation. Mr X and Mrs Y needed to know the value of her interest before considering whether to enter into a DPA in order to do financial planning. This caused Mr X and Mrs Y uncertainty about the outcome of Mrs Y’s financial assessment.

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Agreed Action

29. Within one month of the date of the final decision the Council will:
• Apologise to Mr X and Mrs Y for the uncertainty caused. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology.
• Request an independent valuation from the District Valuer Service (DVS). I have not given a timeframe for the valuation because this will depend on the DVS’s timescales.
30. The Council should update us on the position with respect to the valuation within three months of the date of the final decision. Once the valuation is available, the Council should review Mrs Y’s financial assessment and provide us with a copy of the review.
31. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I find fault causing injustice. The Council has agreed action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman