Summary: The complainant says the Council’s assessment of residential care charges is flawed, and it wrongly took safeguarding action. The Council is at fault for not providing proper reasons for some residential care charges and for the way it completed safeguarding. To remedy the anxiety, time and trouble, the errors caused; the Council has agreed to apologise to the complainant and make a symbolic payment. It will also provide clear reasons for its charging decision and make service improvements.

The complaint

1. Ms C complains the Council inappropriately started safeguarding proceedings against her and has not properly considered the decision that her mother, Mrs D, deprived herself of assets to avoid paying care costs. Ms C also complains the Council has not dealt with her complaint properly and has communicated poorly with her.
2. Ms C says the Council’s safeguarding action traumatised her. She has also felt frustration by the Council’s repeated requests for information she does not have; and its failure to properly consider information she has provided.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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 spoke with Ms C and considered information she and the Council had already provided. I made enquiries of the Council and considered its response. I also considered:-
• Care Act 2014 and the associated Care and Support Statutory Guidance;
• “Deprivation of Capital” – LGSCO Guidance for practitioners August 2022;
• Council’s safeguarding and complaints policy;
• Mrs D’s financial assessments, care records and safeguarding investigation;
• Council’s complaints policy and complaint correspondence.
6. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

Deprivation of assets

7. Councils can make charges for care and support services they provide or arrange. They must assess a person’s finances to decide what contribution he or she should make to their care charges. They should take a person’s capital and savings into account subject to certain conditions. If a person’s capital is over the upper capital limit of £23,250 he or she will be liable to meet the full cost of their care.
8. The Care and Support Guidance 2014 (The Guidance) says people should be able to spend their money as they wish, including making gifts to family and friends. However, it is important people pay the contribution they are responsible for towards their care costs. It says a local authority should ensure people are not rewarded for trying to avoid paying their assessed contribution.
9. There are some cases where a person may have tried to deliberately avoid paying for care and support costs through depriving themselves of assets, either capital or income. In such cases, the Council may either charge the person as if they still had the asset or, if the asset has been transferred to someone else, seek to recover the lost income from that person.
10. Deprivation of assets means where a person has intentionally deprived or decreased their overall assets to reduce the amount they are charged towards their care. This means they must have known they needed care and support and have reduced their assets to reduce the contribution they are asked to make towards the costs.
11. Local authorities should not assume someone has intentionally deprived themselves of assets to reduce their contribution to care fees. Paragraph 11, Annex E of the Guidance says there may be other valid reasons. It says, when 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?
• past case law says local authorities cannot look into the mind of the person. They can only look at the nature of the proposal within the context of the time and circumstances in which it took place.
12. There is a basic principle, established by the courts, that councils need to explain the reasons for their decisions. It is not enough to say a decision is in line with the Statutory Guidance; the Council needs to explain why this is the case. Specifically, it needs to address the two questions in paragraph 11, Annex E of the Statutory Guidance.
13. If a local authority decides a person has intentionally deprived themselves of assets to avoid paying care fees, it may treat those assets as notional capital in its financial assessment. Notional capital is where the local authority counts the value of the assets in its financial assessment, as if the person still owned them.

Safeguarding

14. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Complaint handling

15. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:
• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

What happened

16. Ms C is Mrs D’s Lasting Power of Attorney for financial affairs. In 2018 Ms C decided to build a side extension for a wet room and an extra bedroom. This was so Mrs D could move in with her as she was getting increasingly lonely. Ms C says the house was not big enough for Mrs D to move into without the extension and agreed to complete the extension on the basis Mrs D would repay her after she sold her property. Ms C completed the work and Mrs D moved in 2019. Mrs D sold her house shortly after. From the proceeds she gifted money to family members and repaid housing adaptation expenses to Ms C and her sister. Between July and September 2020 Mrs D had spent most of her money.
17. Later in 2020 Mrs D received a dementia diagnosis and began to access regular respite in a care home until May 2023 when she moved into long term residential care. On 1 June the Council assessed Mrs D as eligible for residential care. The care assessment included the date Mrs D was diagnosed with dementia. The Council asked Ms C to complete a financial assessment. The Council later asked for further information about Mrs D’s spending, and in October asked for invoices to evidence adaptation costs. Ms C responded saying she did not keep any receipts.
18. On 31 October the Council wrote to Ms C saying it was treating spending on adaptations as notional capital as Ms C had not provided enough evidence to support the costs. It also included large monetary gifts as notional capital because it said the gifts were not in line with Mrs D’s previous spending.
19. On 2 November the Council opened a safeguarding enquiry. It had concerns Mrs D did not have capacity to make decisions about the money paid and the risk there was financial abuse. It told Ms C about the safeguarding and its intention to tell the Office of Public Guardianship who regulate powers of attorney. On 14 November the NHS verbally confirmed the date of Mrs D’s dementia diagnosis as October 2020 and provided written confirmation on 28 November. On 30 November the Council closed the safeguarding as “outcome unsubstantiated” as it could not now say Mrs D could not make, or was coerced into making spending decisions as she did.
20. In response to my enquiries the Council says it is unlikely it would have opened a safeguarding enquiry had it been aware of the date of Mrs D’s dementia diagnosis. It also says it made the decision there was a deprivation of capital on the following basis:-
1. Mrs D started to receive Attendance Allowance from March 2019, so had a need for care;
2. Mrs D had respite from 2020 so there was an expectation that care would be needed on a long term basis; and that Mrs D would need to pay for the care;
3. inconsistent spending on gifts.
21. Between December 2023 and January 2024 the Council has continued to correspond with Ms C as part of the complaint process. It accepted and amended the financial assessment to include some spending and will review the assessment if Ms C provides evidence either in receipts or an independent assessment of costs for the extension.

Was there fault causing injustice?

22. The Ombudsman’s role is to review councils’ adherence to procedure in making decisions. Where a council has followed the correct process, considered all relevant information, and given clear and sound reasons for its decision, we generally cannot criticise it. We do not make decisions on councils’ behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint because a person disagrees with a council’s decision.

Deprivation of assets decision

23. The Council has a duty to protect the public purse and to follow the guidance set out in the law. In this case the Council has considered the time-line, explanations provided, and Mrs D’s spending, in reaching the decision there was an intentional deprivation of assets. It has considered both motivation and the expectation that Mrs D would need care.
24. While I understand Ms C cannot provide receipts for events that happened four years ago, I cannot criticise the Council for asking for additional information to verify the amounts spent. The Council has also offered to consider an independent valuation of the extension which Ms C has yet to provide. I therefore do not find fault in how the Council has reached a decision on notional capital related to adaptation/extension work.
25. However the Council’s reasoning for not allowing larger gifts to family members in 2020 is confusing. It is unclear how Mrs D could make larger monetary gifts before selling her house if she did not have liquid assets. In response to a draft decision the Council says it has properly considered the monetary gifts. It has provided me with a rationale applying the relevant guidance reaching the same decision. While this is welcome the Council failed to provide Ms C with the same rationale and to properly communicate its decision making. I consider this is fault. Ms C has the injustice of not fully being aware of how the Council has reached its decision and because of this a lost opportunity to properly challenge the decision.

Safeguarding investigation

26. The Council is entitled to start safeguarding when the threshold for financial abuse is met, regardless of whether a person has capacity to make financial decisions. In this case the Council accepts it would not have opened a safeguarding enquiry had it known about the date of Mrs D’s dementia diagnosis. This appears to have been an oversight rather than a fault in the process the Council followed. However this caused Ms C anxiety and distress as did the threat to contact the OPG, which is usual in cases such as this.
27. I also consider the Council could have made the decision to close the safeguarding earlier when it was verbally told about the date of Mrs D’s diagnosis. This prolonged Ms C’s anxiety.

Delays in completing a financial assessment and complaint handling

28. The Council took six months to complete a financial assessment and make a decision on the deprivation. Most of the delay was caused by the need to get extra information and advice about how to continue. While I understand the six month period was lengthy and would have caused Ms C anxiety the Council acted promptly in its requests for relevant information.
29. Ms C says the Council acted negligently and deliberately by not believing her. While I appreciate Ms C may have felt that way, there is no evidence to suggest the Council was acting with malice.
30. I have reviewed the complaint handling and consider the Council did respond to Ms C’s complaints in a timely manner. While the Council did not respond to Ms C as she would have liked it to, I consider it did respond to the points raised. I therefore find no fault in the complaint handling aspect of the complaint.

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Agreed action

31. I consider was fault in the Council’s actions which caused Ms C injustice. I consider the agreed actions below are suitable to remedy the personal injustice caused and to improve future practice.
32. Within one month of the final decision the Council has agreed to:-
1. apologise to Ms C for unnecessarily starting safeguarding procedures;
2. pay Ms C £150 a symbolic payment for the anxiety and distress caused by these faults;
3. provide Ms C a reasoned decision based on the relevant law and guidance about the monetary gifts made by Mrs D and why the Council considers these gifts as a deprivation of capital. It should allow Ms C a further opportunity to challenge the decision making and provide any evidence she feels is necessary.
33. Within three months of the final decision the Council has agreed to:-
1. review what happened in the safeguarding process to see whether any changes are needed to ensure as far as possible the same fault does not reoccur;
2. remind staff, and if necessary, provide staff training on the need to give proper reasoned when making decisions on a deprivation of capital.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have found fault causing injustice and consider the actions above are suitable to remedy the personal injustice caused by the Council’s failures and to improve future practice. I have completed my investigation and closed the complaint on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman