Decision Date: 18th February 2025
Summary
The Council mis-advised Mrs X that it could apply a mandatory property disregard, giving the impression that it ‘would’; and then refused a discretionary disregard wrongly and not in line with the statutory Guidance.
What happened
Mrs X’s mother, Mrs Y, jointly owned a property [the report does not say with whom] that was her main residence.
Mrs Y was then admitted to hospital and discharged to a care home. A subsequent Care Act assessment recorded that Mrs Y wished to stay in the care home permanently. She funded her care as she owned property and had savings above the upper capital limit.
Months later, Mrs X moved into Mrs Y’s property as she needed to leave her own home. Mrs X then applied for a mandatory property disregard as Mrs Y’s savings were depleting. She explained why she moved into Mrs Y’s property and said it was her main and only residence. The Council considered Mrs X could apply for a mandatory property disregard as she was over 60. A Council officer emailed Mrs X that “we will be able to disregard the property once mum’s capital falls below our threshold”.
Later, the Council then told Mrs X that Mrs Y’s property did not qualify for a mandatory disregard as Mrs X only moved in after Mrs Y became a permanent resident at the care home.
The Council advised Mrs X to apply for a discretionary property disregard. Mrs X submitted her application, reasoning that Mrs Y’s stay at the care home did not become permanent until after Mrs X moved into Mrs Y’s property. She also said that she had applied to reduce her working hours based on what she’d taken to be the Council’s assurance; also that she would have been homeless if she had not moved in, and that she had been told by the Council that the property would be disregarded when she first asked.
The Council refused the property disregard, stating that –
- it appreciated Mrs X’s difficult circumstances but that these were not Mrs Y’s and therefore ‘needed to be separated regarding the application’;
- Mrs X needed to have occupied Mrs Y’s property before she entered the care home permanently; and
- Mrs Y’s care assessment and plan showed she was a permanent resident at the care home before Mrs X moved in.
Mrs X complained, stating that–
- the application’s rejection was not right;
- she would not have reduced her hours if she considered that her application would be rejected;
- she would have been homeless if she had not moved in; and
- several mistakes had occurred in the decision process.
The Council told Mrs X to contact the Ombudsman. She responded that the Council did not consider all the issues she raised, including that she was initially told Mrs Y’s property would be disregarded, and that she based her decision to reduce her working hours on this information. The Council’s records showed that it considered this to be irrelevant to its decision and that Mrs X reduced her hours before she received advice about a discretionary disregard [it is not possible to tell from the report what the facts were in this regard].
Mrs X’s MP contacted the Council. It responded that it provided general advice to Mrs X about a possible disregard, and accepted that the wording could be interpreted as an agreement. It said it was happy to apologise to Mrs X for any stress caused and that its decision to refuse the discretionary disregard was correct.
What was found
The Council’s officer told Mrs X clearly in their email that it would apply a disregard in response to her initial contact, which was fault. The officer’s email to Mrs X did not provide any indication that it was referring to potentially disregarding the house if the criteria for a mandatory disregard were made out; it was therefore understandable that Mrs X thought the Council would disregard Mrs Y’s property, and that she could rely on this to make decisions about her own life. This caused distress, which the Council was asked to remedy.
The Council was at fault in its consideration of the discretionary disregard application since it did not make a decision in line with the statutory guidance. The guidance states that a property can be disregarded when a relative moves in after the resident moves into a care home. The guidance says that all the relevant factors should be considered when determining whether a property should be disregarded. This includes the relative’s circumstances, which the Council did not properly consider. This was fault that caused uncertainty to Mrs X, which the Council should remedy by considering the application again to restore Mrs X’s position had the fault not occurred.
The Council’s complaint-handling was also poor. The Council’s response to Mrs X’s complaint did not address its having said that it had agreed to a disregard. It only addressed this in response to her MP’s enquiry, which was fault that caused Mrs X the trouble of having to complain again and contacting her MP.
The agreed action was that the Council would–
- send a written apology to Mrs X within a month;
- make a symbolic payment of £400 within a month;
- consider again her application for a discretionary disregard within a month; if the Council agrees a discretionary disregard, it should backdate this to when Mrs Y’s savings fell below the upper capital limit.
- remind officers of relevant parts of the statutory guidance when deciding applications for discretionary property disregards within two months; and
- remind officers that they should consider and respond to the key issues raised when responding to a complaint within two months.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The report is useful in illustrating how local authorities should be cautious when dealing with property disregard matters, how they process discretionary property disregard applications, and how they should respond substantively to important issues highlighted in complaints directed towards them. In all three of these areas, Portsmouth City Council made significant lapses that were likely to have caused someone already facing homelessness and other difficulties an enormous amount of inconvenience and stress.
Beginning with the Council’s clear assurance that Mrs Y’s property would be disregarded for charging purposes, sections 34 and 35 of the care and support statutory guidance are the most important authority on the matter.
They state that a mandatory disregard can apply “where the property has been continuously occupied since before the person went into a care home” (34(c)) by a relative aged over 60 (34(c)(iii)), which includes someone’s daughter (35(e)).
While the Council eventually discovered Mrs Y’s property did not qualify as Mrs X began occupying it only after Mrs Y moved into a care home permanently, it should not have so quickly or loosely assured Mrs X in such explicit terms that the property could be disregarded. This gave Mrs X false hope and caused her broader detriment as it caused her to request a reduction in her working hours.
More can be said about the Council’s failure in its proper consideration of Mrs X’s discretionary disregard application. Discretionary disregards are covered in sections 42 to 44 of the same statutory guidance.
Notably –
- the discretion should factor in that “a person’s assets are not maintained at public expense” (42);
- all the relevant factors should be considered in making a property disregard, including “the timing and purpose of the move” and/or whether “the property is the relative’s main or only home” (43);
- “[t]he local authority should consider if the principal reason for the move is that it is necessary to ensure the relative has somewhere to live as their main or only home” (44); and
- “[a] local authority will need to take account of the individual circumstances of each case; however, it may be helpful to consider the factors listed above for the mandatory disregard plus the following additional factors in making a decision:
- was the relative occupying another property as their main or only home at the time of the previous financial assessment?
- could the relative have reasonably expected to have the property taken into account at the time they moved into the property?
- would failure to disregard the property result in the eligible relative becoming homeless?
- would failure to disregard the property negatively impact on the eligible relative’s own health and wellbeing? (44)”
It is clear that the Council’s apparent treatment of Mrs X’s circumstances as irrelevant to the disregard application ignored the explicit instructions in the statutory guidance. While not all the details are revealed to us, it could be argued that, based on what is highlighted by LGSCO, Mrs X moved into Mrs Y’s property because she was facing homelessness and would have otherwise faced serious housing, mental and/or physical health concerns, had nowhere else to go, and was not motivated by self-serving factors such as securing inheritance. It could therefore be said that the success of the discretionary disregard application would not have been contrary to the public interest.
Finally, substantively addressing key issues raised in a complaint is one of many necessary complaint-handling features that are found in the LGSCO’s Complaint Handling Code and elsewhere. This includes actually dealing with complaints on their merits and considering all the relevant information and evidence carefully (part 6, section 5.4). The Council’s failure to address Mrs X’s point that she had been assured that Mrs Y’s property would be disregarded is a blatant instance of this guidance being violated, and ultimately left her unsupported enough to seek help from her MP. It should not have taken an MP’s enquiry for important points within a complaint to be properly addressed.
We would have liked to have been told with whom Mrs Y jointly owned the property, which is not detailed in the report. It can’t have been a spouse or a civil partner or cohabitee because the property would have been disregarded anyway in that situation.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Portsmouth City Council (24 009 729) report.
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