Summary: We will not investigate Mrs C’s complaint about the Council’s decision to treat her mother, Mrs B, as depriving herself of capital for the purpose of avoiding care costs. This is because we could not add to the Council’s response or make a different finding even if we investigated.

The complaint

1. Mrs C complained on behalf of her mother Mrs B. Mrs C says Mrs B set up a Family Trust Fund in October 2018 when her diagnosed health conditions were manageable, and she had no intention of going into a care home. Mrs C say Mrs B’s health deteriorated quickly in 2022 and it was deemed unsafe for her to return home. Mrs C says the Council should disregard Mrs B’s property from her financial assessment.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council says the timing of Mrs B’s property being put into a Trust was to deprive herself of an asset for the purpose of avoiding care costs. It said Mrs B had received a Memory Team Assessment and been diagnosed with a mild cognitive impairment, and, on the balance of probabilities, could have reasonably expected to need care and support and would have had a reasonable expectation of her need to contribute towards the cost of any eligible care needs. Mrs B attended her GP in December 2018 with Mrs C who arranged and agreed funding for a Telecare service. Six weeks after placing the property in Trust, contact was made with Adult Social Care services as a result of Mrs B’s decline in memory and risk of falls. Considering all the information it had including legislative guidance, the Council decided given Mrs B’s age, health, and position at the time the Trust was made, it was reasonable for it to reach the decision that a deprivation had taken place and it was a foreseeable action.
7. We are not an appeal body and cannot question the basis of the Council’s decision where there is no evidence of fault. The Council has considered all available evidence and explained the reasons why it determined Mrs B should be treated as having the capital she tied up in a Family Trust. If Mrs C disputes this, she can ask the court to consider whether the Council has applied or interpreted the Care Act 2014 correctly and it would be reasonable for her to do so.
8. Mrs C says the Council did not offer a Deferred Payment Agreement (DPA) or check whether Mrs B’s property was sold. The Council has treated Mrs B as owning capital or income from the asset. The Council says it provided Mrs C with a Factsheet about DPA’s and advised her to seek independent legal advice. We could not add to this.

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Final decision

9. We will not investigate Mrs C’s complaint because we could not add to the Council’s response or make a different finding even if we investigated.

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Investigator's decision on behalf of the Ombudsman