Summary: Mrs X complains that the Council wrongly told her it would apply a mandatory property disregard and then wrongly refused a discretionary property disregard. The Council was at fault as it wrongly told Mrs X that it would award a mandatory property disregard. The Council was also at fault as it did not consider Mrs X’s application for a discretionary property disregard in accordance with the Care and Support statutory guidance. These faults caused distress and uncertainty to Mrs X which the Council has agreed to remedy by apologising and making a symbolic payment of £400 to her. The Council will also consider Mrs X’s application for a discretionary property disregard again.

The complaint

1. Mrs X complains that the Council:

• Wrongly told her that it would apply a property disregard when her mother’s savings fell below the upper capital limit threshold.
• Wrongly refused her application for a discretionary property disregard.

Mrs X says she reduced her hours at work as she thought the Council had disregarded her mother’s property and she will be homeless if she must sell her mother’s property to pay for her care.

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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 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)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. 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(i), as amended)

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How I considered this complaint

5. I have:

• Considered the complaint and the information provided by Mrs X.
• Discussed the issues with Mrs X.
• Considered the records and correspondence provided by the Council.
• Invited Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

6. The Care Act 2014 (sections 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
7. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
8. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees.
9. In certain circumstances the value of a person’s main or only home must be disregarded. These circumstances include where a relative who meets certain conditions is occupying the property in part or whole as their main or only home and where they have continuously occupied it since before the person went into a care home. This is the mandatory property disregard. (Sections 34 and 35, Annexe B, of the Care and Support statutory guidance)
10. Councils can also provide a discretionary property disregard in other circumstances. But the council has to balance its discretion with ensuring a person’s assets are not maintained at public expense. The statutory guidance gives examples where the discretionary disregard may be appropriate. The purpose of the disregard is to safeguard certain categories of people from the risk of homelessness.
11. A council should consider if the principal reason for the relative’s move to the resident’s home is to ensure the relative has somewhere to live as their main or only home. Councils must take account of the individual circumstances of each case. It can consider the factors for the mandatory disregard as well as factors such as whether the failure to disregard the property would result in the relative becoming homeless or would negatively impact of their health and wellbeing. (Sections 42, 43 and 44, Annexe B of the Care and Support statutory guidance)

What happened

12. The following is a summary of the key events which are relevant to my consideration of the complaint. It does not include everything that happened.
13. Mrs X’s mother, Mrs Y, jointly owns a property which was her main residence. Mrs Y was admitted to hospital and then discharged to a care home. Some weeks later the Council carried out a Care Act assessment. The assessment recorded that Mrs Y wished to stay in the care home permanently. Mrs Y self funded her care as she owned property and had savings over the upper capital limit.
14. Some months later Mrs X moved into Mrs Y’s property as she had to leave her own property.
15. Mrs X applied for a discretionary property disregard as Mrs Y savings were depleting. In her request Mrs X explained why she had moved into Mrs Y’s home and said this was her main and only residence.
16. Internal council emails show an officer considered Mrs X could apply for a mandatory property disregard as she was over 60. Another officer sent an email to Mrs X which stated:

“Just to let you know, on the basis that you are living in mum’s property and you are over 60, we will be able to disregard the property once mum’s capital falls below our threshold. Please contact us when mum’s capital reaches approx. £30,000.”

17. The Council’s records show that some months later an officer sent an email and spoke to Mrs X to explain the Council had now decided that Mrs Y’s property did not qualify for a mandatory disregard. This was because Mrs X moved into the property after Mrs Y became a permanent resident at the care home.
18. The Council advised Mrs X that she could apply for a discretionary disregard. The Council asked Mrs X to provide information to support her application such as evidence that she provided care for Mrs Y and that she had given up her property.
19. Mrs X submitted her application for a discretionary disregard and gave reasons for her request. These included that Mrs Y’s stay at the care home did not become permanent until after she had moved into Mrs Y’s home. Mrs X also said she had applied to reduce her working hours and would be homeless if she had not moved to the property. In addition, Mrs X said the Council agreed the property would be disregarded.
20. The Council considered Mrs X’s request but refused to agree a discretionary disregard. In its letter to Mrs X notifying her of the decision the Council said:

• It appreciated the difficult circumstances with her housing situation when she moved to Mrs Y’s property. But these were her own circumstances and not Mrs Y’s so needed to be separated in terms of the application of charging.
• For a property disregard to be considered the relative must have been continuously occupying the property as their main and only residence before the client entered the care home on a permanent basis.
• Mrs Y’s care assessment and support plan show she became a permanent resident before Mrs X moved into the property.

21. Mrs X made complaint to the Council about its decision to refuse a discretionary disregard. In her complaint Mrs X said that she felt strongly it was not right that her request for a disregard was agreed then disallowed. She said she would not have reduced her hours at work if she considered this would happen, that she would be homeless and she believed several mistakes had occurred.
22. The Council responded to Mrs X. It said her request for a discretionary disregard had been considered by a senior officer so the next step was for her to contact the Ombudsman.
23. Mrs X responded. She said the Council had not considered the issues she raised in her complaint, including that the Council initially told her the property would be disregarded and that she based her decision to reduce her working hours on this information. The Council’s records show it considered this was not relevant to the decision made. The Council advised Mrs X that it gave her general advice when she first asked about a disregard and she made her decision to reduce her working hours before this time.
24. Mrs X’s MP also contacted the Council on her behalf. In its response to the MP, the Council said it had provided general advice to Mrs X as to whether a disregard could be applied. It accepted the wording could be interpreted as an agreement. The Council said it was happy to apologise to Mrs X for any stress caused. But the Council maintained the decision to refuse a discretionary disregard was correct.

Analysis

25. The Council wrongly informed Mrs X that it would apply a property disregard in response to her initial contact with the Council. This was fault. The Council’s email clearly stated it would be able to disregard the property. I note the Council told Mrs X and her MP that this was guidance. But the email does not provide any indication that it is only guidance, and it reads as if it will agree a disregard. So, it is understandable that Mrs X thought the Council had agreed a disregard and relied on this when making decisions about her future. Mrs X was not eligible for a mandatory disregard. But the Council’s change of position caused distress to her which the Council should remedy.
26. There is evidence of fault in how the Council considered Mrs X’s application for a discretionary disregard. The Council did not make its decision in accordance with the statutory guidance. I explain my reasons below.
27. In its decision letter, the Council said the circumstances which led to Mrs X moving into the property needed to be separated from Mrs Y’s circumstances in terms of the application of charging. It also said for a property disregard to be considered the relative must have continuously been occupying the property as their main and only residence before the resident entered the care home. But the statutory guidance is clear that a property can be disregarded when a relative moves into the property after the resident moves into a home. The guidance says the council needs to consider all the relevant factors when considering if the property should be disregarded. This includes the relative’s circumstances.
28. So, the Council should have considered Mrs X’s reasons for moving into the property after Mrs Y entered the care home. It should also have considered her individual circumstances and whether refusing to disregard the property would cause her to be homeless. The Council’s decision letter does not show it considered these factors. The Council therefore did not properly consider the tests for a discretionary disregard when considering Mrs X’s application. This was fault.
29. I cannot know, even on balance, if the Council would have agreed to disregard the property if it had properly considered Mrs X’s application. But the fault will have caused uncertainty to Mrs X. The Council should therefore consider Mrs X’s application for a discretionary disregard again. This will put her back in the position she would have been in if the fault had not occurred.
30. The Council’s handling of Mrs X’s complaint was poor. In her complaint, Mrs X raised concerns about the Council wrongly saying it had agreed a disregard. The Council did not address this issue in its response to Mrs X’s complaint and only addressed it in response to her MP’s enquiry. This is fault which put Mrs X to the avoidable time and trouble of complaining again to the Council and contacting her MP. The Council should remedy this injustice.
31. I note the Council provided guidance to officers on dealing with applications for mandatory disregards. But the Council should also remind officers of the provisions of the statutory guidance when considering applications for discretionary disregards.

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Agreed action

32. That the Council will:
1. Send a written apology to Mrs X for the distress, uncertainty and avoidable time and trouble caused to her by wrongly telling her that it would apply a property disregard, failing to properly consider her application for a discretionary disregard and by its poor handling of her complaint.
2. Make a symbolic payment of £400 to Mrs X to acknowledge the distress, uncertainty and avoidable time and trouble caused by the faults.
3. Consider again Mrs X’s application for a discretionary disregard to ensure it is in accordance with the Care and Support statutory guidance and provide full reasons for its decision. If the Council agrees a discretionary disregard, it should backdate this to when Mrs Y’s savings fell below the upper capital limit.
4. By training or other means, remind officers of the provisions of the Care and Support statutory guidance to ensure they are aware of the factors they should be considering when deciding applications for discretionary property disregards.
5. By training or other means, remind officers that they should consider and respond to the key issues raised when responding to a complaint.
33. The Council should take the action at a) to c) within one month and the action at d) and e) within two months. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation and uphold Mrs X’s complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman