Summary: We will not investigate this complaint about the Council’s decisions relating to Mr Y’s care charges. There is insufficient evidence of fault in the Council’s actions to warrant investigation.

The complaint

1. Ms X (Mr Y’s daughter) complained, via a legal advisor, the Council did not properly consider her request for a discretionary disregard of Mr Y’s share of their jointly-owned property. They said the Council confused guidance for mandatory and discretionary property disregards. They said Ms X moved into the property she owns jointly with Mr Y after he moved into care, and said the Council failed to properly consider the circumstances of that move. Ms X said the Council also miscalculated Mr Y’s interest in the property. They wanted the Council to reconsider its decisions.

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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. (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 the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. After Mr Y moved into a care home and Ms X’s mother died, Ms X bought another sibling’s share of the property and moved in. She asked the Council to consider applying a discretionary disregard to this property, thus not considering it as part of Mr Y’s capital available to pay the costs of his care. The Council declined to disregard the property.
6. The Council referred to mandatory property disregards in a letter, when Ms X had instead requested a discretionary disregard. However, the Council applied the tests relevant to the discretionary disregard, not the mandatory disregard, when it made the decision to refuse the request. The Council considered Ms X’s circumstances and set out its reasoning in its earlier response to Ms X. There is insufficient evidence of fault in how it came to this decision, to warrant investigation by the Ombudsman. Where the Council has made a decision properly, we cannot question the outcome.
7. At the time of complaining, Ms X had not yet applied for a deferred payment agreement. This is because she hoped the Council would disregard Mr Y’s share of the property instead. The Council has not yet formally assessed Mr Y’s interest in the property, so a complaint about the matter is somewhat premature however I have considered whether we could investigate the complaint about the discussions held so far.
8. The Council explained the approach it would take to calculating Mr Y’s share of the property if a deferred payment agreement were to be requested. Ms X’s legal representative disputed the Council’s explanation and said Mr Y’s share of the property would not attract market value, as it would not be sold with vacant possession.
9. Given the dispute about the value of Mr Y’s beneficial share of the property, the Council will likely need to obtain an independent valuation of his share via the Valuation Office Agency to assist Ms X’s decision about the option of applying for a deferred payment agreement. There is insufficient evidence of fault in the Council not already having approached the VOA, as Mr Y has self-funded his care so far and it has not been necessary.
10. The dispute between the Council and Ms X’s legal representative about how to calculate the value of Mr Y’s share in the property involved different interpretations of the relevant legislation. It is not for the Ombudsman to interpret the law and caselaw. If Ms X believes the Council was at fault in how it interpreted relevant legislation and caselaw in this specific case, then this would be a matter for the courts to decide, not the Ombudsman.

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Final decision

11. We will not investigate Ms X’s complaint because there is insufficient evidence of fault in the Council’s decision-making to warrant investigation by the Ombudsman.

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Investigator's decision on behalf of the Ombudsman