Decision Date: 9 February 2023
What happened
Miss Z complained on behalf of Mr X who was dissatisfied with a financial assessment of his late father, Mr Y’s, assets. Mr X also complained about how his complaint to the Council was handled. He asserted that the Council’s actions resulted in a financial loss to his father’s estate and stress to the family.
Mr X complained that the Council’s financial assessment had counted in 50% of the value of Mr Y’s home (the other 50% being held on trust) but had disregarded a professional valuation that Mr X had asked for, which evaluated Mr Y’s share to be worthless. The Council said Mr X’s valuation was not a “Care Act valuation” whilst its own valuation had been conducted according to the Care Act statutory guidance. Its valuer had found Mr Y’s share to have a value, which resulted in him paying for his care.
Mr X complained further and asked why his valuation was not accepted. The Council acknowledged Mr X’s request to go to stage 2 saying it would consider this. A subsequent response said it considered Mr X’s correspondence as a request for further information instead, which it provided by stating that: 1) It could not see that Mr X’s valuation stated it was a Care Act valuation; 2) Mr X’s valuer said the Trust/trustees would not sell the property, but there was no evidence to support this and the Council’s valuer had considered a forced sale of Mr Y’s share may be possible; 3) It stood by its assertion that Mr Y’s share had a value because a forced sale was a possible option and; 4) Mr X could escalate his complaint to stage 2.
Mr X maintained his position that his valuation was a Care Act valuation which did take account of the surrounding circumstances. He disputed the Council’s view regarding the possibility of Mr Y’s share being purchasable (and therefore having value) and asked to go to stage 2. However, the Council refused this request saying it would not result in a different outcome. It then directed Mr X to the LGSCO. Mr X repeated his request which was again refused.
Mr X told the LGSCO his valuation stated it was a Care Act valuation, and that the Council refused to accept this or investigate the matter at stage 2. The Council provided the LGSCO with a copy of its valuation outlining the rationale for its views and how the value of the property had been established, referencing the information relied upon and relevant law and policy.
What was found
The LGSCO noted that in disputes of this nature, the Council must attain a precise valuation. It did so, and in this regard there was no fault. Also that the Council should consider any challenge to that valuation and give reasons for its decision, which it did. The LGSCO found no fault in the Council’s decision making.
The LGSCO recognised Mr X had a divergent view to the Council, but stated it could only find fault if the proper decision-making process was not adhered to.
The LGSCO found that the Council had explained to Mr X why it decided not to escalate Mr X’s complaint to stage 2, and was entitled to do so with reasons. However, its policy was not clear as to its discretionary powers. The LGSCO concluded that this was not fault but a matter the Council may wish to address via an amendment to its policy.
Finally, the LGSCO declined to investigate whether Mr X’s valuation stated it was a Care Act valuation or not (that is, conducted according to the Care Act statutory guidance or not) because “any fault did not cause injustice”. That is, how the valuation was described was not the basis of the decision, rather the Council made its decision based on the content of the valuation.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
This seemingly innocent report is the tip of the iceberg with regard to how shares in houses are valued, and will be regarded by councils everywhere as vindication of a position they have been pushing for, for years. Pre-Care Act, when the Charging for Residential Accommodation Guidance was the bible for financial assessment officers the contents of that document made it clear that a professional valuation will need to consider the evidence as to whether the non-owned share could be freed of its owner’s purpose. We are not Trust lawyers but we would have thought that the prospects of the Council being able to force a sale of the other half without buying Mr Y’s share first, ie simply having an interest in Mr Y’s share as a judgment creditor, were non-existent – and that is without knowing what the Trust was FOR.
The idea that one can value a share such as to give rise to that right to take the full value of the service user’s share for the purposes of calculating the appropriate Care Act charge, in the first place, is extraordinary, to our minds. We note that the Council shared the reasoning of its valuer (how the valuer reached their decision on the property’s value with reference to the information relied on and relevant law and policy, including an explanation from the valuer as to why they think the property had a value and how that may be realised, taking into account that the Trust may be unwilling to sell their share.)
We would suggest that this report may have come from a generalist complaints investigator with insufficient knowledge of land law to have been able to subject that reasoning to any sort of objective scrutiny or critical analysis. We think that the man’s remedy is to refuse to pay the charges if indeed the Trust is unwilling to sell the other share of the house – Mr X really should have explored that with the Trustees first so that he could give the valuer that evidence – and raise the public law point in the legal proceedings that Wokingham will have to bring against the estate.
If you are an individual grappling with this, get comprehensive advice as early as possible. The Care Act statutory guidance says that local authorities must have regard to identifying people that contact them who may benefit from financial information and advice independent of the local authority and actively facilitate those people to access it (3.6). Ask for this and insist on the duty being upheld.
The LGSCO report and the Council here talk about a Care Act valuation. In the statutory guidance, the considerations around a valuation are set out in Annex B. There is no prescription about who does the valuation, just that it should be independent. The guidance acknowledges that there may be a dispute about the value of a property and says simply that the aim should be to resolve this as soon as possible.
If you are in the local authority, it’s important to bear in mind that what might be routine to you is someone’s life savings and legacy. Tread carefully with other people’s money. Just because something is lawful, doesn’t mean that it feels fair. And there is a great deal of confusion about the difference between NHS care (free at the point of use) and charging for social care. Where there is dispute, independent advice could be beneficial to a resolution. It is worth taking time to clarify and agree. It could save time for you, the LGSCO and your citizens.
Finally, this report is a good example of how the Complaints Regulations allow each council to make up its own policy, refusing to go to a further stage when it suits them. We look forward to the time when the LGSCO is made into a Complaints Standards Authority and can ensure that all councils’ complaints processes are adequate in terms of fairness, of its own initiative.
If you are making a complaint, be clear about what you think is wrong about how something was done (compared with how it should be done according to the law and guidance) and give evidence. That is what we do, with some success.
The full Local Government Ombudsman report on the actions of Wokingham Borough Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/22-012-059