Decision Date: 21st Feb 2022
What happened
Mr Y complained on behalf of his father, Mr X, that the Council decided not to disregard Mr X’s property from its financial assessment when calculating his care costs. As a result, Mr Y said his mother believed she could lose her home and he was uncertain whether Mr X’s care costs had been calculated correctly.
In April 2019, Mr X moved into a care home and the Council began a financial assessment in May 2019 to decide his contribution toward care costs. Mr X owned a property with Mrs X but he lived elsewhere, which house he did not own, prior to going into care.
In May 2019, the Council wrote to Mr X indicating that his contribution would be £300 per week as a permanent care home resident, after ‘provisionally’ assessing his care costs. The Council asked Mr X for evidence that half his pension had been paid to Mrs X, following marital breakdown. The Council said it had disregarded Mr X’s property as Mrs X was living there.
In June 2019, Mrs X provided evidence showing that she was in receipt of his full occupational pension which was agreed at the time of marital separation in 2013.
On 6 September 2019, the Council informed Mr Y it had included Mr X’s 50% share of the property, meaning that he was liable for the full costs of his care. This was included as Mr X had moved out six years previously, and they were seen as estranged so therefore did not qualify for a mandatory disregard. It said a full cost contribution was due from April 2019.
On 13 September 2019, the Council wrote to Mr Y indicating that, due to assets exceeding £23,250, Mr X would be responsible for the full cost of care and indicating that a Deferred Payment Agreement (DPA) could be set up.
From September 2019 to December 2019, Mr Y provided the Council with the following further information about his parents’ situation:
- Mr X moved out in 2013 and agreed to Mrs X having his occupational pension;
- Mr X moved in with someone as their lodger;
- Mr and Mrs X still maintained regular contact, and Mrs X provided care to Mr X;
- Mrs X was over 70 and satisfied the Care Act requirements for a property disregard.
In March 2020, the Council continued to state that the fact that Mr X’s 50% of the property and his assets exceeded £23,250 meant that he was not eligible for help with his care costs. The Council indicated Mr X did not qualify for a mandatory property disregard and would not exercise its discretion, since Mr X qualified for a DPA.
On 9 March 2020, Mr Y complained to the Council.
A DPA was applied for by Mr Y on Mr X’s behalf in April 2020. The Council told Mr Y further documentation was required.
4 months later, the Council responded to Mr Y’s complaint. The Council said that as Mr X owned 50% of a property, his assets were above the threshold and therefore liable for the full costs; that Mr X did not qualify for a mandatory property disregard and it had considered a discretionary one but did not feel this was necessary as a DPA had been offered and Mrs X could continue living there.
Mr Y and the Council had been communicating since the conclusion of the complaint and had been finalising the DPA in relation to terms and wording. This was intended to allow Mrs X to remain at the property if Mr X passed away, but Mr Y did not believe this was reflected in the DPA.
What was found
The Guidance states property will be disregarded if a partner or former partner are still living there, unless they have become estranged – which is not defined. The Council decided Mrs X was estranged from Mr X, but did not explain why it considered this to be the case, and as such the Council was at fault. As the Council did not reference any of the evidence regarding the relationship, Mr Y could not be sure that this evidence was considered.
The Council was also at fault for the time taken to decide Mr X’s care costs. The Council recognised this and apologised. LGSCO was satisfied this remedied any injustice caused.
The Council agreed to do the following:
- To provide a written apology to Mr Y and his family for not adequately explaining why mandatory property disregard was not received.
- To re-consider whether Mr X qualified for a property disregard, considering the family’s circumstances, and in doing so the LGSCO suggested that the Council might wish to make further enquiries about the relationship between Mr and Mrs X.
If the Council decided to disregard 50% of Mr X’s property it would cancel the DPA and refund Mr X any fees and interest relating to the DPA. If the Council decided not to disregard Mr X’s 50% share, it should satisfy itself that Mrs X is properly seen as estranged and provide Mr Y with an explanation of the rationale for its decision.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
Paragraph 34 of Care Act Statutory Guidance 2014 Appendix B (Treatment of Capital) states that the value of the person’s main home must be disregarded where the person is receiving care in a setting that is not a care home, or if the stay is temporary and that they intend to return home or they are disposing of their home in order to buy more suitable accommodation.
Where a person no longer resides at the property and it has been continuously occupied prior to them moving into a care home, it must also be disregarded where the person continuing to occupy the property is: the person’s partner, former partner or civil partner, except where they are estranged; a lone parent who is the person’s estranged or divorced partner; a relative who is aged 60 or over, a child aged under 18 or where they are incapacitated.
The exception, as indicated, is not clear as to its purpose within the overall policy behind it, as is shown in this report. Why potentially evict a surviving partner, if they are not living together, at the point their previous partner goes into a care home? This is especially true when a couple have formally divorced, and presumably would have sorted out their financial issues.
It is possible that this policy on not disregarding assets of estranged couples, was envisaged so as to de-incentivise people from stating that they are former partners, when in fact they are not at all, for the purpose of avoiding care home costs.
This rule exists in the current law (the charging regulations) and may have been accepted as the standard, rather than question it in relation to the 2014 guidance, as it is taken wholly from the Charging for Residential Accommodation Guide (CRAG) which was its forerunner.
Even when a share in the home is considered and not disregarded for the purposes of care home fees another problem that arises for councils is that if co-owned then the share on paper is not necessarily able to be valued at the same percentage of the market value, because there is an occupier.
The full Local Government Ombudsman report on the actions of Kent County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/21-008-339