Summary: Mr X complained about a financial assessment the Council completed for his mother, Mrs Y, in June 2020. There was fault in how the Council decided Mrs Y deprived herself of capital. The Council agreed to review the decision and provide training to its staff.

The complaint

1. Mr X complained about a financial assessment the Council completed for his mother, Mrs Y, in June 2020. He said the Council wrongly decided Mrs Y deprived herself of capital because she had given money to her grandson. As a result, he said Mrs Y and her family had to pay significant sums for Mrs Y’s care which the Council should have paid. He wanted the Council to change its decision and repay Mrs Y and her family for the charges they had paid.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), 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 considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided; and
• the relevant law and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Deprivation of assets

8. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014” (the regulations), and the “Care and Support Statutory Guidance 2014” (CSSG). When the Council arranges a care home placement, it must follow these rules when undertaking a financial assessment to decide how much a person must pay towards the costs of their residential care.
9. The rules state that people who have over the upper capital limit should pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
10. Regulation 22 says councils must treat people as still having capital they have deprived themselves of for the purpose of reducing the amount they need to contribute to the costs of their care. Capital treated this way is often referred to as ‘notional capital’.
11. However, the CSSG says councils should not automatically assume deprivation. It says there may be valid reasons someone no longer has an asset and councils should ensure they fully explore this first.
12. The CSSG says that when deciding if someone has deprived themselves of assets, councils should consider:
1. whether avoiding the care and support charge was a significant motivation in the timing of the disposal of the asset; and
2. whether the person had a reasonable expectation of needing to contribute to the cost of their eligible care needs.

Background

13. Mr X’s mother, Mrs Y, lived with her husband and another son. Mrs Y had a medical problem, but Mr X said this was well managed.
14. In January 2020, Mrs Y fell, breaking her hip. She went into hospital for a hip replacement and returned home in early February 2020.
15. Mr X visited Mrs Y in early March 2020 and was concerned about her wellbeing. He said he discussed the idea with Mrs Y of a temporary stay in a care home for a break to aid her recovery from the operation.
16. Two days later, he said Mrs Y agreed to four weeks respite care, so he contacted a nearby care home and arranged for Mrs Y to stay there. Mrs Y went into the care home three days later and paid for the stay herself.
17. During her respite stay, Mr X said Mrs Y developed severe anxiety about returning home. Mr X said this was unexpected and out of character for Mrs Y.
18. Mr X contacted the Council to ask for help arranging a permanent placement for Mrs Y and for help with the costs of a longer-term stay at the care home.

The Council’s financial assessment

19. The Council completed a financial assessment to assess Mrs Y’s eligibility for help with her care costs.
20. Mr X told the Council that Mrs Y had made several large payments to her grandchildren in the 12 months before asking the Council for help:
• £42,000 and £76,000 to clear her grandchildren’s student loans in late 2019; and
• £56,000 to pay for the deposit of one grandchild’s first property in March/April 2020.
21. The Council accepted that, at the time of the payments in 2019, Mrs Y did not anticipate needing care or support. So, it accepted the payments towards the student loans and did not take this money into account.
22. However, the Council decided Mrs Y should reasonably have expected needing care and support in March/April 2020. Therefore, it decided she had deprived herself of the money she paid towards the house deposit so treated her as having £56,000 notional capital. As a result, Mrs Y was not entitled to any help with her care costs from the Council.

Mr X’s appeal

23. Mr X appealed the Council’s decision. He told the Council that, before moving to the care home, Mrs Y fully expected her stay to be temporary and that she had discussed this expectation with other family members. He argued the Council had wrongly based its assessment of Mrs Y’s care needs on information collected after she became anxious about returning home, rather than before she went into the care home.
24. He explained the payment for the house deposit was because of a longstanding commitment Mrs Y made to her grandchild. She had originally intended to fund the deposit in 2019, but the purchase did not go ahead. When her grandchild found another property to buy in early 2020, Mrs Y started the process of selling shares in February 2020; before he had suggested a care home stay to her. Mr X said he provided evidence of this to the Council.

The Council’s final decision and response to my enquiries

25. In the Council’s final decision to Mr X, and in its response to my enquiries, the Council said it had decided Mrs Y:
1. should have reasonably expected she had care needs before choosing to go into respite care; and
2. had intentionally deprived herself of capital by paying for the house deposit.
26. When deciding about Mrs Y’s expectations about her care needs the Council said it had considered:
• that Mrs Y was 80 years old;
• Mrs Y’s need for help and support from her family to manage her medical needs;
• that the Council’s ‘Neighbourhood Team’ provided some support with Mrs Y’s health conditions between her discharge from hospital in February 2020 and her admission to the care home in March;
• that both Mrs Y and her husband told the Council she was struggling to cope at home before going into the care home;
• that Mrs Y knew about the need to contribute to her care and support; and
• that she reduced her savings to just below the upper capital limit.
27. When deciding that Mrs Y intentionally deprived herself of capital, the Council said it had considered:
• Mrs Y had reduced her capital to just under the upper capital limit and had left herself with “no contingency”;
• the care home had confirmed, in August 2020, that it admitted Mrs Y for a two-week trial and its expectation was she would become a permanent resident if the trial went well;
• Mrs Y knew about the capital limits and the need to contribute to the costs of her care; and
• although Mrs Y had promised her grandchild she would pay for the house deposit, her circumstances had changed by the time she transferred the money in March 2020.

My findings

28. It is not our role to decide if Mrs Y deprived herself of assets; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
29. The CSSG says that for someone to deprive themself of assets, they must have a reasonable expectation that they need care and support and that they would need to contribute to the costs of this.
30. Based on the evidence I have seen, I am satisfied the Council properly considered this point. The Council considered the statements provided to the Council by Mrs Y and her family, her relevant medical history, and the involvement of its Neighbourhood Team with Mrs Y.
31. The Council says it considered other points, such as Mrs Y’s knowledge of the capital limits and the amount of her savings after the house deposit. These points are not directly relevant to Mrs Y’s reasonable expectations of her care needs. However, considering these matters does not mean the Council’s decision about whether Mrs Y should reasonably have expected to need care and support was flawed.
32. Just because, by disposing of an asset, someone needs to contribute less to their care, this is not enough to decide they have intentionally deprived themselves of the asset. The CSSG is clear there may be valid reasons someone no longer has an asset and councils should not automatically assume deprivation.
33. To properly decide whether someone had deprived themselves of an asset councils must show, based on evidence, that a significant motivation in the decision to dispose of the asset was to reduce their contribution to their care costs.
34. Mr X accepted the timing of the payment for the house deposit coincided with Mrs Y going into the care home. However, convenient timing is not enough to make a finding of deprivation, particularly when someone has provided other possible explanations for the disposal.
35. I am not satisfied the Council properly considered, or evidenced its consideration, Mrs Y’s intent when making the payment for the house deposit. That was fault. In particular, the Council failed to:
• find out Mrs Y’s actual expectations about returning home at the time she decided to make the payment to her grandson, before her first stay in the care home;
• seek other evidence to find out those expectations (for example, from the family members Mrs Y had talked to about her stay or any paperwork about the stay from the care home);
• properly consider the timing of disposing the shares Mrs Y sold (Mrs Y issued the instruction to her stockbroker before Mr X says he mentioned the idea of a care home stay to Mrs Y);
• explain why it did not accept that Mrs Y’s intent was simply to keep the promise she made to her grandchild in 2019 (particularly because of the past support she and her husband had provided to them).

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Agreed action

36. Within one month of my final decision the Council will:
• review its decision that Mrs Y intentionally deprived herself of capital to reduce her contribution to her care costs. The review should seek to find out Mrs Y’s intent in making the payment for the house deposit; and
• if the Council decides Mrs Y did not intentionally deprive herself of capital, review its financial assessment and pay to Mrs Y any care costs she should not have paid; or
• if the Council decides Mrs Y intentionally deprived herself of capital, provide a written decision which explains its reasons for the decision, the evidence it considered, the weight it gave to each piece of evidence and how it resolved any conflicts of evidence. The Council should provide this decision to Mr X, Mrs Y and the Ombudsman.
37. Within three months of my final decision the Council will provide training to all staff involved in Care Act financial assessments covering the appropriate legal test for deprivation of assets and how to apply the test correctly.

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Final decision

38. I have completed my investigation. There was fault in how the Council decided Mrs Y deprived herself of capital. The Council agreed to review the decision and provide training to its staff. I am satisfied this is a suitable remedy.

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Investigator's decision on behalf of the Ombudsman