Discretionary property disregards Adults Services. Practice guidance. Version: 3.0 Effective from: 11th April 2016 Next review date: April 2019

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1 Discretionary property disregards Adults Services Practice Version: 3.0 Effective from: 11th April 2016 Next review date: April 2019 Signed off by: Tracie Thomas Title: Head of Adult Social Care Date: 11 th April 2016

2 Status New Version number 3.0 Issue date 11 th April 2016 Author Greg Slay, Quality Assurance Lead Owner Tracie Thomas, Head of Adult Social Care Signed off by Tracie Thomas, Head of Adult Social Care Date 11 th April 2016 Issue Date Author Principal Changes number 1 February 2012 Greg Slay 2.0 March March 2016 Greg Slay Greg Slay Major updating to include revised arrangements for property valuations and to incorporate the previously separate on determining beneficial interest. Document approved by Legal Services on 7 th March 2016 Feedback: West Sussex residents expect first class service and we aim to provide it. We therefore welcome feedback about our policies and procedures. If you have any comments about this document please Equality and diversity As part of our commitment to equality and diversity, and in line with the requirements of the Equality Act 2010, the County Council will ensure that all customers of our services are treated with fairness, dignity and respect irrespective of any of the following protected characteristics: age, race, gender, disability, sexual orientation, gender reassignment, marriage or civil partnership status, pregnancy/maternity status or religion and belief. Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 2

3 Contents 1. Our approach to assisting local residents 4 2. The legal and policy context 4 3. Disregarded property: discretionary arrangements 5 4. Beneficial interest in a property 5 5. Application to the Discretionary Property Disregard Panel 7 6. Next steps after the decision of the Discretionary Property Disregard Panel 8 7. Sources of further information 8 Appendix A: Valuation arrangements in use by Adults Services 9 Appendix B: Relatives with a legal and/or beneficial interest 10 Appendix C: Information required by the Panel 13 Appendix D: Template outcome letter from the Panel 15 Appendix E: Flow Diagram 16 Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 3

4 1. Our approach to assisting local residents 1.1 Our approach to assisting West Sussex residents to maximise their health and social care wellbeing is described in our Adults Services policy on self-directed support and in three separate Personalisation, Dementia and Carers Frameworks published by West Sussex County Council. These documents can be found on the internet in the Professional Zone on the West Sussex Connect to Support website. 1.2 Not everyone is able to continue to live at home, for various reasons, and may need to enter permanent residential care. The County Council is required to charge adults who have been assessed as having eligible care and support needs that can be met through admission to permanent residential or nursing care. Once a 12-week period has passed - in which capital assets are disregarded - all capital assets are considered part of the assessment for charges. This includes any residential property owned by the person before the move into permanent care. 2. The legal and policy context 2.1 The relevant legislation is the Care Act 2014, its accompanying Care And Support Statutory Guidance 2014 (revised March 2016), and the Care and Support (Charging and Assessment of Resources) Regulations The Care Act definitions of a) what is a relative and b) what is meant by a relative who is incapacitated can be found in Annex B: Treatment of Capital, Care and Support Statutory Guidance 2014 (revised March 2016). 2.3 People who are eligible for the provision of both health and social care aftercare services under S.117 Mental Health Act 1983 are exempt from charging arrangements. This only applies where a care plan is in place, jointly agreed with the NHS, and which includes residential or nursing care accommodation as part of the aftercare plan to meet a mental disorder need. 2.4 Our charging policy, practice on S.117 Mental Health Act, and practice on deferred payment agreements and funded party top-ups, can be accessed on the internet in the Professional Zone on the West Sussex Connect to Support website. Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 4

5 3. Disregarded property: discretionary arrangements 3.1 The exercise of determining eligibility for a discretionary property disregard can only be undertaken by certain officers, at director level or equivalent, in West Sussex County Council. The members of the County Council s Discretionary Property Disregard Panel are: the Head of Adult Social Care; the Principal Solicitor; and the Principal Manager - Service Finance (Adults ). 3.2 When exercising the Panel s discretion, it is expected that the County Council will take into account the needs and best interests of one or more third parties who continue to live in, or have a beneficial interest in, the property. 3.3 Where one or more third parties has a share in a property but is not living there (for example, there are two estranged spouses and one is living in other accommodation) then the Discretionary Property Disregard Panel will need to make a decision as to whether the share should be treated as capital for the purpose of the financial assessment. This situation will only likely occur in exceptional circumstances. 3.4 Operations Managers in Adults Services as the local budget-holders - cannot make any decisions in relation to discretionary property disregards. They do however have an important role to play in both screening and providing recommendations that will later be considered by the Discretionary Property Disregard Panel. 4. Beneficial interest in a property 4.1 When an assessment is made of the property and other capital assets held by a person in need of permanent residential care it may appear that another person has, or claims to have, a legal share in the ownership of the asset. 4.2 In legal terms a share in the ownership of property is referred to as a beneficial interest. This means that a person has the benefit of part of the value without necessarily being in occupation or possession of the property. These interests would usually be described in formal legal documents or in an entry on the Land Register. 4.3 If a property is shared with others only the value of the share can be included in the financial assessment. It is not a question of deciding whether to disregard the share held by others as it does not belong to the person subject to the financial assessment. Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 5

6 Disregarding property in the assessment of beneficial interest If it becomes clear that, even when A owns and lives in a property, B has a share or beneficial interest in it then only the share held by A can be used for a financial assessment. A request may also be made for the share owned by A to be disregarded (not because of any challenge to its assessed value) because the County Council is being asked to exercise its discretion to disregard that share in the property in the financial assessment. In these specific situations the usual process will apply in terms of referral to the County Council s Discretionary Property Disregards Panel. 4.4 Where a customer, carer or family member requests a Discretionary Property Disregard and the customer is a part-owner of the property, a formal valuation of any part-share or beneficial interest in the property will be required. This will need to be submitted alongside the application for the discretionary disregard. 4.5 Staff in Adults Services must advise the individual who is requesting the discretionary property disregard that a property valuation and/or a beneficial interest valuation needs to be completed to accompany their application. This should determine whether there is anyone they know who is willing and able to buy the value of any beneficial interest in the property. Where a person has no immediate intention to realise the value of any asset, its full capital value is expected to be taken into account in the financial assessment. The detail of how to arrange a valuation is covered in Appendix A, and is also shown in the flowchart at Appendix F. 4.6 The following information will be required by the valuer. Some of this information will be available from the financial assessment undertaken on behalf of Adults Services by the Welfare Benefits Advisor: a) Purchase Order Number; b) Address of the Property; c) The customer s name and date of birth; d) Details of the occupants of the property (if not solely the customer), their contact details and confirmation they have been made aware of the requirement for a valuation; e) Whether ownership is as tenants in common or as joint tenants and what shares in the property the various owners have; f) Whether there is a mortgage on the property and approximately how much is outstanding on the loan; and Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 6

7 g) The contact details for the member of staff requesting the valuation in order that the report can be sent to the right person. 4.7 Only when the valuation has been received should an application to the Discretionary Property Disregard Panel be made. 5. Application to the Discretionary Property Disregard Panel 5.1 The arrangements for making a compulsory property disregard are described, for reference, in Appendix E. 5.2 All applications for consideration by the county s Discretionary Property Disregard Panel need to have been screened by the local Operations Manager in Adults Services who must add their recommendation to the Frameworki form before this is sent for the Panel s consideration. 5.3 The application form (Form AS 200) that needs to be completed for the Discretionary Property Disregard Panel is available in any adult s support planning episode on Frameworki the electronic case recording system used by Adults Services. For further information about what is required in terms of the application to the discretionary panel, please refer to Appendix C of this. 5.4 Members of staff in Adults Services should discuss the completed application, together with its additional accompanying evidence, with their line manager in the first instance. The recommendation of the Operations Manager needs then to be included in the Frameworki form. The completed Frameworki application form, and accompanying evidence (including valuation), should be ed to the Head of Adult Social Care. It will then be re-checked and circulated to the other Panel members. The members of the Panel may arrange to meet or to discuss the application on a virtual basis. 5.5 The County Council s Discretionary Property Disregard Panel will ensure the reasons for granting or not granting the discretion are agreed upon, and the outcome and rationale will be added to the AS200 by the Chair of the panel (usually the Head of Adult Social Care). 5.6 An outcome letter will be sent to the person who has made the request for a discretionary property disregard. A standard letter is shown in Appendix D. The Head of Adult Social Care will populate and send the letter. A copy of the letter will be provided to the relevant local Operations Manager who in turn will ensure any other parties involved are appropriately notified. Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 7

8 6. Next steps after the decision of the Discretionary Property Disregard Panel 6.1 The decision of the Discretionary Property Disregard Panel is final and there is no right of appeal. It is therefore essential that the Panel is in possession of all the facts of the case if it is to exercise its discretion effectively. Any person making a request needs to supply all the information that is relevant to that request. Only if significant new information later comes to light that supports the original application can a fresh application be made. There is no other ground on which to apply again in the future. 6.2 An eligible person with assessed care and support needs who is not satisfied with the outcome decision of the Discretionary Property Disregard Panel does have a right to complain to the Local Government Ombudsman. A complaint to the Ombudsman should only relate to the lawful and rational operation of the Panel s procedures. 6.3 The Ombudsman can be contacted in writing at: The Local Government Ombudsman, PO Box 4771, Coventry CV4 0EH. For advice on making a complaint, or to make a complaint over the telephone, the Ombudsman provides an Advice Team that can be contacted by telephone (Mondays Fridays) on or Additional information is available on the Local Government Ombudsman website. 7. Sources of further information The Care Act s Care and Support Statutory Guidance, first published in October 2014 and revised in March 2016, is available on the gov.uk website. West Sussex County Council publishes a range of information leaflets for the general public. Staff should discuss any queries about particular documents with their line manager and/or professional supervisor in the first instance. It has been agreed that Operations Managers should refer to Legal Services any issues that cannot be locally resolved and which require more specialist advice. Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 8

9 Appendix A Valuation arrangements in use by Adults Services It has been agreed that Brian Watson of H.E. Foster and Cranfield will be undertaking the valuations ( contact: The cost of a valuation is VAT. Staff in Adults Services will need to raise a purchase order for the valuation on the One Way to Buy system used by the County Council. The funding for the valuation will need to come from the relevant area / service budget. The Vendor number is This is the current arrangement. Adults Services may however change the arrangements in the future. Staff will be notified if that is the case - and this practice will then be updated. Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 9

10 Appendix B Property Disregard applications relatives with a legal interest or investment in the person s property B.1 When a relative claims to have invested money in the property being assessed they may have acquired a legal interest (whether part or full ownership) in the property. This situation does not automatically give rise to a property disregard. It is instead a request for consideration to be given to the extent of any legal interest the relative may have in the property. It is normally the case that evidence will need to be supplied of the financial contributions made and the legal interest acquired. If the other person s interest is confirmed there may still be a property disregard request relating to the share of ownership held by the adult. B.2 The legal position is that where a relative or other third party has invested their own money in the purchase of the property or to discharge a mortgage on the property, they may in so doing acquire a legal interest in the property equivalent to the value of the investment made. There should be legal documentation to provide evidence of the level of that investment and of the legal interest that has been acquired. The interest may have been recorded on the property deeds or registration records and this information will appear on any formal search of property records. B.3 In those situations where no step has been taken to formally register or otherwise record a legal interest in the property, it may still be legitimate for the County Council to take account of a significant financial investment in the property by a relative provided that evidence of that investment is supplied. B.4 A valuation of the beneficial interest component, or part-ownership, will always be sought by the County Council prior to the Discretionary Property Disregard Panel exercising its discretionary decision-making authority. B.5 The fact that an individual has a beneficial investment in, or partownership of, the property does not however mean that the legal interest held by the owner has been removed or overridden. There is not likely to be a full property disregard in such cases. It is a question of assessing the extent of the investment and the legal interest that has been acquired, and then to establish what value to attribute to the capital interest in the property as retained by the customer - and which would therefore be taken into account as part of normal charging arrangements. There will be no disregard attached to the owner s share of the property simply because a Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 10

11 relative has helped in the purchase and has acquired a share of the value of the property. B.6 By way of general principles if A owns a property and it is being stated that B or C has a partial or total beneficial interest in the property then the member of staff undertaking the financial assessment should ask for an account of how those interests have arisen. The information will be used to assess whether A has an interest in the property and, if so, what value to give to it in the assessment. A formal valuation will then be sought from the County Council s approved valuer. B.7 Questions asked as part of the assessment are: On what basis does A hold the asset jointly with others? Are there any documents such as a declaration of trust to show the respective shares? Have B or C contributed to the purchase of the asset which is not held in their name at all? If so on what basis (loan or gift) and how much? How is this recorded or formalised? Is the property dealt with through a will or settlement of an estate? Have there been arrangements between A and B or C amounting to formal gifts, loans or contributions to paying a mortgage? If B or C have recently disposed of a property and moved in with A a copy of the historic land registry entries for the property sold is needed to see what money was raised by the sale. If another person is acting for A under a Lasting Power of Attorney, or under a Court of Protection Order, then a copy of the official document relating to that authority including confirmation of its registration will be needed. B.8 Special consideration needs to be given in situations where a relative or third party has assisted in the purchase of a property where the adult who has entered a permanent residential or nursing care home is a former tenant of the local housing authority or housing association and had exercised a right to buy that property under the relevant legislation. The value of any contribution needs to be set against the fact that a significant discount will have been applied to take account of the length of time the adult had been a tenant whilst renting the property. The value of that discount will need to be considered when the capital value of the property is assessed at the point of any request for a property disregard. If a third party has, for example, provided the full purchase price, that third party will only acquire an interest up to the proportion of the market value at the time of the purchase. The value attributable to the discount remains with the former tenant. This must therefore be assessed at the time of the request for the property disregard. Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 11

12 B.9 The information that will need to be provided for the County Council s Discretionary Property Disregard Panel is set out below: Searches of the Land Register where an interest has been registered; Copies of deeds or records of purchase; Any formal legal documentation recording the level and valuation of the investment and any agreement between the parties as to a legal interest acquired; Records of any financial transfers between the parties particularly where a mortgage or bank transaction is involved; Records recording the right to buy procedures in place at the time of the purchase of a former tenancy, including the assessed value at the time of purchase and any discount applied; An up-to-date valuation undertaken on behalf of the County Council; and Any correspondence with solicitors recording the purchase of the property and which shows the relative investments by those purchasing the property. B.10 For a property to be disregarded it must also be occupied as their main or only home by the qualifying relative. Emotional attachment to a property is not sufficient on its own. Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 12

13 Appendix C Information required by the Discretionary Property Disregard Panel C.1 The application form for a discretionary property disregard (Frameworki Form AS 200) must be completed. The form should be accessed and created through the support planning episode for the adult who is entering the permanent residential or nursing care home. The completion of the form will be informed by the adult s completed Statement of Financial Assessment. C.2 Once the application form is completed: It must be discussed with the team manager; An independent valuation must be supplied alongside the application form; A recommendation from the local Operations Manager (Adults ) must be included in the completed application; The Operations Manager will add their recommendation to the AS200 and this with all supporting documentation to the Head of Adult Social Care - and send a task on Fwi to the same effect. (note: incomplete applications will be rejected); The Head of Adult Social Care will forward the application to the other Discretionary Property Disregard Panel members, and together they will review the appeal evidence and consider whether to exercise a discretionary property disregard. C.3 The Discretionary Property Disregard Panel will refer to the following criteria in determining whether to exercise its own discretion: one or more people are still actually living in the house; the length of time such people have actually been in residence; the closeness of the relationship between those in residence in the property and our customer who is now in a permanent residential or nursing care home; any legal/ financial/ beneficial interest in the property by the other person(s), how that interest was obtained and why it was obtained, and the value of any beneficial interest; the extent to which the person has previously provided care to the adult who has now moved to permanent residential care; and what if any, savings there have been to the public purse by providing such support the recent dependence of the adult who has now moved to permanent residential care on the other person(s) for the provision of care; whether the other person(s) has given up a home or access to a property in order to care for our customer; Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 13

14 whether the other person(s) has any other legitimate and/or compelling reason to need to live in the property; and whether a Deferred Payment Agreement will assist the needs of the other person(s) by delaying the sale of the property. Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 14

15 Appendix D Format for a template outcome letter from the Panel To be printed on West Sussex County Council headed notepaper, as from the Head of Adult Social Care To: (insert) Name and address of the adult Dear Application for the value of your property to be disregarded from the charges payable by you for permanent residential care An application on your behalf was recently made to our internal Discretionary Property Disregards Panel established in line with the Care Act 2014, its accompanying Regulations and the Care and Support Statutory Guidance On behalf of West Sussex County Council, I am writing to you now as chair of that Panel to inform you of the outcome. In your particular situation, the Panel has decided that (insert specific commentary here ). The decision of the Panel is final and there is no right of appeal. If you are not satisfied with this decision and you feel that the County Council has not acted fairly or lawfully you may make a complaint to the Local Government Ombudsman. You can contact the Local Government Ombudsman in writing at: Local Government Ombudsman PO Box 4771 Coventry CV4 0EH For advice on making a complaint, or to make a complaint over the telephone, the Ombudsman provides an Advice Team that can be contacted by telephone (Mondays Fridays) on Yours sincerely, Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 15

16 Appendix E Identification of beneficial interest and what then needs to happen Property or asset of beneficial interest identified?; part-ownership identified?; evidence of savings to the public purse from the family providing substantial care? Beneficial interest flow diagram Valuation of property, assets, and any beneficial interest will be required. Frameworki Form AS200 must be fully completed, a valuation undertaken, and a copy of the property title provided. A purchase order on One Way To Buy must be completed by staff from Adults Services for each valuation request. See Appendix A for the current valuation arrangements that need to be followed. Papers ed to the Head of Adult Social Care who will pass them on to Panel members for consideration The completed Form AS 200 is checked by the line manager and the recommendation of the Operations Manager is then added to the application Panel decision confirmed and notified by the Head of Adult Social Care Copyright West Sussex County Council / Version 3.0 / 11 th April 2016 Page 16

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