Summary: After the Council decided that Mrs X had deliberately deprived herself of assets, it delayed providing its decision in writing. The Council’s letter did not fully explain the reasons for its decision and did not include information about her right of appeal. The Council has agreed to apologise to Mrs B, review its decision and take action to prevent similar failings in future.

The complaint

1. Mrs B complains that the Council has:
• incorrectly decided that her mother, Mrs X, intentionally deprived herself of assets when she put her house into a family trust;
• failed to take into account the circumstances under which the house was put into the trust;
• incorrectly used the full property value as notional capital when deciding that Mrs X should pay her full care home fees.
2. Mrs B says that the Council should be assisting with Mrs X’s care home fees because Mrs X did not deliberately deprive herself of assets and Mrs B owns 50% of the house.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Law and government guidance

6. The charging rules for residential care are set out in the ‘Care and Support (Charging and Assessment of Resources) Regulations 2014’, and the ‘Care and Support Statutory Guidance 2014’. The Council must follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
7. The rules state that people who have over the upper capital limit (£23,250) are expected to pay for the full cost of their residential care home fees.
8. Councils must disregard the value of a person’s main or only home for 12 weeks when they first enter a care home as a permanent resident.
9. If someone intentionally reduces their assets so they will not be included in the financial assessment for care home fees, this is known as 'deprivation of assets'.
10. Councils should not automatically assume deprivation; there may be valid reasons why someone no longer has an asset and councils should fully explore this.
11. Where a council believes it has evidence to support deprivation of assets, it may either charge the person as if they still possessed the asset or, if the asset has been transferred to someone else, seek to recover the lost income from charges from that person.

Overview

12. Mrs B’s mother, Mrs X, moved into a care home in January 2020. She initially stayed for respite and then moved in on a permanent basis.
13. The Council told Mrs X’s family that it would disregard the value of Mrs X’s home for 12 weeks but that she would then have to pay the full care home fees because she had assets above the upper threshold of £23,250.
14. Mrs B told the Council that Mrs X’s house had been put into trust and so it should not be included in the financial assessment. A trust is a legal arrangement where a person gives cash, property or investments to someone else so they can look after them for the benefit of a third person.
15. The Council decided that it would treat Mrs X as still owning the property because it was put into trust after the Council had carried out a financial assessment in 2018, and therefore with knowledge of the charging policy.
16. Mrs B told the Council that the process of putting the house into trust had started before the financial assessment was carried out in 2018. The Council asked Mrs B to provide evidence of this and said that it would then review its decision.
17. In November 2020, Mrs B complained to the Council about a lack of detail in the financial assessment. She said it did not include Mrs X’s income, assets or any disregards and did not clearly explain what Mrs X needed to pay towards her fees.
18. In the Council’s response, it explained that the financial assessments for the period 31 January 2020 to 5 May 2020 were set up with interim contributions based on ‘standard’ income. It said that these would be updated with Mrs X’s actual income and relevant allowances. It also confirmed that Mrs X was responsible for the full care home fees from 6 May 2020.
19. The Council then sent Mrs B updated financial assessments for the period 31 January 2020 to 5 May 2020. It confirmed that Mrs X had been treated as still owning the property and that it was awaiting evidence that the transfer of the property into trust had been instigated some months before it was finalised. The Council explained that as it had not received any evidence to support this, Mrs X was responsible for the full cost of her residential care fees from 6 May 2020.
20. Mrs B says that she paid half of her parents’ mortgage and until 2018, she believed her name was on the deeds of the property. She says she then found out that instead of adding her name to the deeds as a joint owner, Mrs X had made a will which stated that 50% of the property was to go to Mrs B when she died, and the other 50% was to be shared equally between Mrs B and her other children. Mrs B says that in order to protect her interest in the property, it was placed in trust in 2018. The trust documents show that Mrs X intended for 50% of the property to go to Mrs B and the remaining 50% to be shared equally between Mrs B and her siblings. Mrs B considers the Council is wrong to include her share of the property in the financial assessment.

Analysis

21. Mrs X moved into the care home in January 2020 but the financial assessment was not completed until December 2020. This delay was fault and meant that the family did not find out until December that Mrs X had not contributed enough towards her care home fees for the period January to May 2020.
22. The Council told Mrs B during a telephone call in May 2020 that it had decided to treat Mrs X as still owning the property. Mrs B argued that its decision was wrong and the Council asked Mrs B to provide further evidence. While it appears Mrs B did not do so, this should not have prevented the Council from issuing a formal decision in writing. The Council provided a brief explanation for its decision in December 2020, around six months after the decision was made. This delay was fault. The Council did not fully explain how it had decided that Mrs X had deprived herself of assets, or why it considered the whole property value should be used in the financial assessment, and it did not provide details of the process for appealing the decision. This was fault.

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Agreed action

23. Within four weeks, the Council will:
• apologise to Mrs B for the failings identified in this case; and
• invite Mrs B to provide evidence to show that Mrs X did not deliberately deprive herself of assets, and then review its decision within four weeks of receipt of any evidence provided.
24. Within eight weeks, the Council will review the way it communicates decisions about deprivation of assets, or provide evidence that it has already done so. The Council’s decisions should be fully explained, in writing, and details of the appeals process should be provided.

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Final decision

25. I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice. The actions the Council has agreed to take are sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman