Summary: Mr X complains on behalf of Mrs G about the Council’s decision that she deprived herself of assets to avoid paying her care fees. Mr X says as a result, the Council charges the maximum fees for Mrs G’s care and wants to recover the outstanding care fees. Mr X says this has caused Mrs G and her family significant distress. There was no evidence of fault in the way the Council made its decisions.

The complaint

1. Mr X complains on behalf of Mrs G, his mother.
2. Mr X complains about the Council’s decision that Mrs G intentionally deprived herself of assets to avoid paying her care fees. As a result, the Council charges the maximum care fees for Mrs G’s care and it wants to recover her outstanding care fees.
3. Mr X says the Council’s decisions have caused Mrs G and her family significant distress.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I discussed the complaint with Mr X and considered the information he provided. I also considered the information the Council provided in response to my enquiries.
7. I sent Mr X and the Council a copy of my draft decision and considered the comments received prior to reaching a final decision.

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What I found

8. The Care Act, supported by the Care and Support Statutory Guidance, sets out how councils should work out how much service users should pay for services. The rules state service users who have over the upper capital limit (currently £23,250) are expected to pay for the full cost of their care.
9. The Guidance says the people should be able to spend the money they have saved as they wish. However, it is also important people pay their fair contribution towards their care and support costs. Local Authorities should ensure people are not rewarded for trying to avoid paying their assessed contribution. Councils must therefore assess a person to determine whether they have intentionally deprived themselves of assets to avoid paying care fees. A person can deprive themselves of capital in many ways, for example by making lump sum payment to a person(s) as a gift.
10. Local authorities should not assume someone has intentionally deprived themselves of assets to reduce their contribution to care fees. The Guidance says there may be other valid reasons. In deciding whether the purpose of the deprivation was to avoid care fees, local authorities should consider:

• whether avoiding the care and support charge was a significant motivation in the timing of the disposal of the asset; at the point the capital was disposed of could the person have a reasonable expectation of the need for care and support?
• did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

11. If a local authority decides a person has deprived themselves of assets to avoid paying care fees, it may treat those assets as if the person still owns them (notional capital) in its financial assessment.
12. Under the Mental Capacity Act 2005, councils must assess someone’s ability to decide when that person’s capacity is in doubt. An assessment of someone’s capacity is specific to the decision to be made at a particular time.

What happened

13. This chronology includes key events in this case and does not cover everything that happened.
14. Mrs G has some long-term health conditions. Prior to Mrs G’s eligibility for social care support, she lived independently with assistance from her family and friends.
15. In March 2019, Mrs X was admitted to the hospital due to ill health. The Council completed Mrs G’s Care Needs Assessment and found her eligible for Council support. Mrs G started receiving Domiciliary Care following her discharge from the hospital.
16. In April 2019, the Council completed a non-residential financial assessment for Mrs G. The Council conducted an unplanned assessment review of Mrs G’s care and support plan when the level of care she required increased. By the end of June 2019, Mrs G was again admitted to the hospital. Mrs G said Mr X had Power of Attorney (POA) for her finance and property.
17. In July 2019, Mrs G was discharged from the hospital. The Council carried out a further assessment and reviewed Mrs G’s care plan. It found her eligible for residential care needs. The Council discussed Mrs G’s care options and finances with her. The Council said Mrs G understood the financial assessment information it issued her. Mrs G signed the residential care home finance charge sheet. Mrs G and Mr X confirmed Mrs G did not own a property and that her savings where below the upper capital limit of £23,250. The Council explained it would need to complete a financial assessment to establish Mrs G’s contribution towards her residential care costs.
18. By the end of July 2019, Mrs G moved into a residential care home. The Council completed a financial assessment. Mrs G’s care costs was funded by the Council.
19. In January 2020, the Council discovered from Mrs G’s late husband’s record she had jointly owned a property with him. They sold the property in July 2017. Mrs G and Mr X had not previously disclosed this information to the Council. The Council carried out an investigation and a re‑assessment of Mrs G’s case. It requested additional information about the sale of the property, distribution of funds from the property sale and copies of Mrs G’s bank statements.
20. In February 2020, the Council received Mrs G’s bank statements. It considered relevant information Mr X provided and completed a financial assessment for Mrs G.
21. The Council decided Mrs G had intentionally deprived herself of her assets to avoid her care costs. This was because it found Mrs G’s capital had reduced significantly through expenditure and transfers of capital following the sale of her property in 2017. The Council decided to treat Mrs G as though she still owned the money from the property sale and therefore, the maximum charge applied to Mrs G’s care costs. The Council backdated Mrs G’s fees from when her care started in April 2019.
22. Mr X disagreed and requested a review of the Council’s financial assessment outcome. He said Mrs G gifted large sums of money to several family members in good faith and not to deliberately deprive herself of assets to avoid her care fees. Mr X further explained Mrs G and her family had planned for her to always live independently because she was well and healthy. But Mrs G’s condition suddenly worsened after her husband died. Mr X said Mrs G was not believed to have had any other funds and the family could not afford to pay Mrs G’s care costs. Mr X confirmed he was Mrs G’s POA but he did not manage Mrs G’s finances and he was unaware how Mrs G spent some of her money. Mr X asked the Council to send all further correspondence and invoices directly to Mrs G’s care home.
23. The Council raised safeguarding concerns about how Mrs G’s finances would be managed without an appointee. The Council considered arranging an advocate to support Mrs G. She declined the offer. Mrs G said she wanted Mr X to carry on handling her finances. In July 2020, the Council opened but closed a mental capacity assessment for Mrs G. This was because the Council had no concerns about Mrs G’s capacity and it found she was able to make decisions around her finances. The Council continued to raise invoices for Mrs G’s care costs at the maximum rate.
24. The Council held a meeting with Mr X in August 2020. It gathered additional information about the proceeds from Mrs G’s property sale in 2017. The Council considered the information and sought internal legal advice. In its financial assessment review outcome, the Council maintained Mrs G deliberately deprived herself of assets to avoid her care fees.
25. It set out that whilst Mrs G did not receive a service funded through the Council at the time of the disposal of the money from the property sale, Mrs G was aware of the financial assessment process, capital limits, a reasonable need for care and a requirement to contribute to future care needs.
26. The Council explained Mrs G’s late husband received residential care in 2015. Mrs G held finance and health POA for her husband. The Council discussed and issued Mrs G information about financial assessments, including letters and invoices in relation to her husband’s care at the time.
27. It said Mr X mentioned Mrs G’s health worsened when her husband died. Mrs G contacted the Council about her conditions at that time but declined care support. Mrs G said she did not want social service involvement and confirmed she would arrange her care privately. This was around the time of the disposals. The Council confirmed this supported its view that Mrs G’s care needs were expected to increase and there was an expectation some consideration should have been made for the cost of Mrs G’s future care needs.
28. The Council stated there was no evidence to show why Mrs G and her late husband decided to sell their property and move to a rented property. There was lack of evidence to support the timing, nature and size of Mrs G’s gifting and expenditure after the sale of their property. The Council believed Mrs G could have made the gifting using a Will or obtained legal advice about her expenditure.
29. The Council considered Mrs G had capacity when she disposed a significant amount of funds after the property sale. The review was not upheld. The Council confirmed it would treat Mrs G as though she still owned the money from the sale of her property. The maximum charge applied and Mrs G’s care costs remained outstanding.
30. Mr X disagreed with the review outcome. He said it was against the family’s wish for Mrs G to go into residential care. Mr X informed the Council the family was willing to set up some form of payment plan for Mrs G’s care costs but it did not amount to the family’s acceptance of the Council’s decision. Mr X asked the Council who would be responsible for the care costs if there was default in payment. The Council said it has powers to make the beneficiaries of Mrs G’s gifting liable to repay her outstanding care fees. This would be proportionate to what the beneficiaries received.
31. The Council in its final response to Mr X maintained its initial decision that Mrs G deprived herself of assets to avoid her care fees and was required to pay her outstanding care costs. Mr X remained dissatisfied and complained to the Ombudsman.

Analysis

32. There is no dispute that Mrs G gifted the proceeds of the sale of her property to family members. The dispute is over the Council’s decision that this was done to deliberately avoid care costs.
33. The Guidance requires councils to consider whether there has been a deprivation of assets when it carries out a financial assessment. The Council discharged its responsibility when it completed Mrs G’s financial assessment(s). The Council considered whether Mrs G had a reasonable expectation of the need for care and support and of the need to contribute to the costs of her care at the time she made gifts. The Council also considered the timing and pattern of how Mrs G disposed of the proceeds from the sale of the property she jointly owned with her late husband. The Council made these considerations in line with statutory guidance.
34. The Ombudsman is not an appeal body. It is not for me to say whether the gifts were deliberate deprivation, or what Mrs G’s intention was in giving them. My role is to decide whether the Council followed the Guidance and considered relevant information in how it reached its decision. In this case, evidence shows it did. Therefore, I do not find fault by the Council in the way it considered and reached its decisions that Mrs G had deprived herself of assets to avoid care costs and how it applied the maximum charge to her care costs.

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Final decision

35. I find no evidence of fault by the Council in the way it reached its decision.

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Investigator's decision on behalf of the Ombudsman