Summary: We will not investigate this complaint about the Council’s decision to not apply a property disregard for the purposes of deciding care charges. This is because there is no evidence of fault by the Council in the way it has sought to determine if a property disregard should be applied in accordance with the Care Act 2014 and its statutory guidance. Further, the Council has offered to review its decision following receipt of evidence by the complainant and we cannot add to this outcome.

The complaint

1. The complainant (Mrs Y) is complaining about care costs billed by the Council in respect of her mother in law (Mrs X) who is now deceased. She says the amount sought by the Council is incorrect because it has been determined by treating Mrs X’s former property as capital and including this in a financial assessment. Mrs Y says the property must be disregarded because it was purchased by Mrs X using an award of compensation she received in respect of personal injury. Further, she says the property should not be included in the assessment of available capital because she retained the property and was not in residential care.
2. In summary, Mrs Y says the alleged fault has resulted in the Council wrongly billing Mrs X’s estate for an amount in excess of £30,000. As a desired outcome, Mrs Y wants the Council to waive the care costs.

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The Ombudsman’s role and powers

3. 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
• we could not add to any previous investigation by the organisation; or
• it would be reasonable for the person to ask for a council review or appeal.

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

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How I considered this complaint

4. I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

5. A financial assessment or means test works out if the Council will pay towards a person’s care. It looks at how much money they have. In England, the Council generally helps to pay for care costs if you have savings less than £23,250. The Council will treat a person’s property as available capital unless a disregard applies. The value of the person’s main or only home must be disregarded:

• where the person is receiving care in a setting that is not a care home or;
• the value of funds held in trust or administered by a court which derive from a payment for personal injury to the person.

6. In her complaint to us, Mrs Y acknowledges that the property included within the financial assessment was Mrs X’s former home and that she no longer lived there or occupied it. She says Mrs X moved to live with her and her son following the death of her husband. I see no evidence of fault in the Council’s assessment that because Mrs X was no longer living at the property then its value should be included in the financial assessment for her care charges. The purpose of the property disregard applies where the service user is living in their property as an alternative to residential care and so is needed for occupation by the service user.
7. In addition, I have reviewed the supporting documents provided by Mrs Y, but none of these evidence an award of damages in respect of personal injury which is key to the property being disregarded by the Council. The Council has requested evidence of this award in both its stage one and two complaint responses, but as I understand this has not been provided. This evidence is reasonably necessary for the Council to apply the disregard. I see no evidence of fault by the Council for trying to satisfy itself about the award of compensation as it is a key element of the decision. I consider it more likely than not that the evidence could be ascertained and provided.
8. I do not consider we cannot add to the Council’s own investigation. It has asked for evidence of the compensatory payment from Mrs Y so that it can consider the disregard further. On receipt of the information, the Council says it will review the decision. We cannot add to that outcome, particularly given we lack evidence of the compensatory payment also.

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Final decision

9. We will not investigate this complaint. This is because there is no evidence of fault by the Council in the way it has sought evidence of the compensatory payment or applied the Care Act 2014 and its statutory guidance. Further, we cannot add to the outcome outlined in the Council’s complaint responses.

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Investigator's decision on behalf of the Ombudsman