Summary: We found no fault on Mr F’s complaint on behalf of his mother about the Council’s decision a payment to him in April 2021 following the sale of his mother’s property, amounted to a deprivation of assets. He said its actions caused distress. There was delay in responding to some of his correspondence, but the Council’s apology remedied the injustice caused.

The complaint

1. Mr F complains on behalf of his mother, Ms G, who went into a care home, about the Council:
1. wrongly deciding a gift of money she gave him was a deprivation of assets;
2. failing to properly investigate whether it was a deprivation of assets;
3. increasing the deprivation of assets amount by £4,000 with no explanation;
4. failing to provide an independent review of his complaint; and
5. delaying dealing with the concerns he raised.
2. As a result, this has caused him a great deal of distress, frustration, and anxiety.

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The Ombudsman’s role and powers

3. 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)
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

6. I considered all the information Mr F provided, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr F and the Council. I considered their responses.

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What I found

Deprivation of assets

7. 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 a council arranges a care home placement, it must follow these rules when completing a financial assessment to decide how much a person must pay towards the costs of their residential care.
8. The rules state people who have over the upper capital limit (£23,250) should pay for the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
9. 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 called ‘notional capital’.
10. The CSSG says councils should not automatically assume deprivation. It says there may be valid reasons someone no longer has an asset. Councils should ensure they fully explore this first.
11. Annex E of the CSSG says, ‘There may be many reasons for a person depriving themselves of an asset. A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
1. 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?
2. did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?’
12. It goes on to give an example of when it would be unreasonable to decide a person had disposed of an asset to reduce the level of charges for their care and support needs. The example was of a fit and healthy person who could not have foreseen the need for care and support.

Council Deprivation of Assets Guidance

13. The Council may consider a person has deprived themselves of capital or property to avoid or reduce their contributions. It is the responsibility of the person to prove they no longer have a resource. Failure to do so will result in the Council treating the person as still possessing the capital or property.
14. The Council has a legal duty to protect and prevent misuse of taxpayer funds. Some people try to reduce or avoid paying care costs by deliberately giving away savings, income, or assets. This is known as ‘deprivation of assets’. If it has reason to believe someone is trying to avoid or reduce their care costs in this way, it may use the true value of the asset/income in their financial assessment as if they still owned it and calculate their contribution accordingly.

What happened

15. Mr F explained his mother, Ms G, was diagnosed with Alzheimer’s disease in 2018 but only displayed minor symptoms. At the time she lived in property 1.
16. In August that year she signed a ‘Financial Assessment & Benefits Team’ form, a copy of which I have seen. The declaration she signed acknowledged the information would be used to decide her level of assessed contribution for all chargeable care services. It also stated should she sell, or give away, any of her assets for less than they are worth, the true value of the assets may be used when calculating future contributions. It explained she may have to pay the assessed contribution even though she no longer had them.
17. By July 2020, Mr F bought property 2 (£190,000) for her which was an assisted living flat. Shortly afterwards, she had a stay in hospital where a mental capacity assessment was done. This found she did not have capacity to make decisions about her discharge or care. It did not consider her capacity to make financial decisions.
18. The Care Act Core Record made in September noted Mr F had bought property 2 but registered it in her name. His intention was recorded as reclaiming the purchase price when property 1 was sold. Property 1 had been for sale for the previous seven months. It also noted Mr F said his mother was not coping at home alone and, as power of attorney, he had decided to move her to more supported accommodation. It recorded him saying she was diagnosed with Alzheimer’s two years earlier, which Mr F described as being in early stages. He noted she had forgotten sequencing for having a shower, for example.
19. The record also noted Ms G was, ‘currently being funded by Covid-19 at some point this will end and she will be self funding of her care’. The funding it referred to was from the NHS.
20. Mr F was advised to contact the Council when Ms G reached its capital threshold. At this point, he needed to ask for an eligibility assessment. It recorded she received 24/7 support from her retirement accommodation (property 2). A later note added stated Ms G was now self-funding and would pay privately for her care. NHS funding would end.
21. In April 2021, property 1 sold (£323,900). After deducting the purchase price of property 2, Mr F transferred the net sale proceeds (£133,000) to himself. He claimed the net sale proceeds (the transfer) was a gift from Ms G. The reason he gave for Ms G making this gift was because:

• his sister had died about 17 years earlier without making a Will. His sister’s entire estate passed to Ms G at the time under the law of intestacy. At the time, Ms G wanted him to have half of his sister’s estate as she thought this was what the sister would have wanted;
• he persuaded Ms G to buy property 1 with her inheritance on the understanding she would give him the share she wanted him to have when she bought a smaller property. He was, therefore, carrying out her wishes in April 2021 when he made the transfer; and
• of his mother’s debts he had paid over the years.

22. Mr F provided no evidence to support these claims.
23. By February 2022, Ms G’s health deteriorated, and she moved into a care home. Mr F put property 2 up for sale. Even with a reduced price, it has still to sell.
24. In August, the Council contacted Mr F after he completed a questionnaire and advised him the transfer was a deprivation of capital unless he could provide evidence showing it was a gift. It told him it would treat Ms G as a self-funder, and he could appeal the decision.
25. In September, the Council wrote to Ms G and said it completed its financial assessment. She was now required to meet the full cost of any social care if provided or arranged by the Council. This was because her savings were more than £23,250.
26. There then followed correspondence between the Council and Mr F who raised queries and concerns about its decision.
27. The following year, in August 2023, the Council confirmed the transfer was a deprivation of capital. At this point, Mr F asked for a review of the decision by the Council’s Financial Panel. Three months later, the Panel rejected his challenge and upheld the Council’s decision.
28. I now consider Mr F’s individual complaints:

Complaint a): wrongly deciding gift was a deprivation of assets

29. Mr F argued the Council wrongly applied the test under Annex E when reaching its decision about the deprivation of asset. He argued:

• at the time of the transfer, his mother was not aware she would need round the clock residential care. I note what Annex E asks is whether, at the time, Ms G had a ‘reasonable expectation of their need for care’.
• before the transfer, she was told if she ever needed care, she would need to contribute to its cost. Again, I note Annex E asks whether, at the time, Ms G had a ‘reasonable expectation of needing to contribute towards its cost.
• the transfer was not done with the intention of avoiding the need to contribute to the cost of that care. Her intention was to fulfil the arrangement they had reached following her inheritance.

30. The Council’s position is:

• The decision about the transfer being a gift in April 2021 was made by Mr F, not Ms G, using the lasting power of attorney. It did not consider Ms G had mental capacity to make such a decision at this time. This was because it considered she may have lacked capacity to take decisions about her care and support. It was reasonable to conclude, therefore, she may also have lacked capacity to manage her finances when the transfer was made.
• The Financial Panel went on to say at the time of the transfer, both Mr F and Ms G had a reasonable expectation she would need care and support. The Panel also noted at the time they both also knew care under the Care Act 2014 was chargeable. This meant there was a reasonable expectation of a need to contribute towards the cost of care.
• There was no evidence provided in support of the claim Ms G would gift money to Mr F. There was nothing to show they had any discussion about it, reached an agreement involving his sister’s estate, or he had paid her bills as claimed.
• Nor was there evidence of his sister intending to gift any money to Mr F. His sister died intestate 17 years earlier which meant her estate went to Ms G.
• Ms G signed a declaration in 2018. This meant she knew if she gave away assets, care would be chargeable. Mr F was also advised at the time that when NHS funding ended, she would become self-funding. This meant he, therefore, had a reasonable expectation of the need to contribute towards the cost of her care.
• Ms G received social care in 2020. Mr F was involved with discussions about her property and the fact the sale of it would make her self-funding.
• She also had a property she was not living in at this time and it was clear she would become self-funding until the capital was close to £23,250.

31. Ms G has been a self-funder since February 2022.

My Findings

32. The Ombudsman is not an appeal body. The Ombudsman’s role is to consider the process followed by the Council, whether it followed guidance, policies, and procedures, and whether there was fault in the way it reached its decision. If the Council considered the information properly, and followed all relevant guidance and policies, for example, the Ombudsman cannot find fault just because a complainant disagrees with the decision.
33. On balance, I found no fault on this complaint. I am satisfied the Council properly considered whether the transfer was a deprivation of assets. In reaching this conclusion, I took the following into account:
1. I am satisfied from the evidence, the Council correctly considered whether: there was a ‘significant motivation’ in the timing of the transfer; there was a reasonable expectation of Ms G needing care and support; she had a reasonable expectation of needing to contribute to the cost her eligible care. The Council set out its reasoning in its correspondence with Mr F.
2. I reach this conclusion having considered the following evidence the Council took into account about the transfer when reaching its decision:

• Ms G had a couple of hospital stays since the purchase of property 2. This showed she had health problems and the potential need for possible future care.
• The Core Record made following her hospital stay recorded Mr F would reclaim the purchase price for property 2 when property 1 was sold. There was no mention of Ms G making a gift to him of the net sale proceeds. There was no mention of Mr F saying they had discussions in the past about this or any agreement about what would happen to it.
• The Core Record noted Mr F said she was not coping at home on her own, which was why he moved her to supported accommodation. Again, this indicated current and continuing care needs.
• He also said while she was in the early stages of Alzheimer’s, she had forgotten the sequencing for having a shower, for example. This also indicated she had continuing care needs.
• The Core Record noted while she was being funded through the NHS at that point in time, this would end, and she would become self-funding. Mr F was asked to contact the Council when her capital threshold was low enough for her to be considered for eligibility for financial help with her care need charges. This shows he was aware funding she received through the NHS would not last. When it ended, she would become a self-funder which meant paying for care herself using her own assets.
• It also noted she was receiving 24/7 support from the retirement accommodation. This also indicated she had continuing care needs.
• It was likely, although not definite, Ms G had no capacity to agree to this transfer as a gift.
3. Mr F provided the Council with no evidence in support of any of his claims about why the transfer was made to him. There was no evidence of Ms G and Mr F holding any discussions about her intentions before the transfer. There was no evidence of her reaching any decision about sharing part of the inheritance she received. Nor was there any evidence of Mr F having paid her debts over the years.
4. There was no evidence given to the Council of Ms G knowing of the gift and, if she had capacity, approving it. The Council was satisfied the transfer decision was made by Mr F.

Complaint b): failing to properly investigate if was a deprivation of assets

34. Mr F complained about the Council not properly investigating whether this was a case of deprivation of assets.
35. The Council explained it sent him a form to complete about the transfer which was considered. It also asked for evidence to support the claims he made about Ms G’s intention and agreement with the transfer.

My findings

36. I found no fault on this complaint. I am satisfied it considered this issue properly and gave Mr F the opportunity to provide evidence in support of his claim. All the evidence was considered by the Council.

Complaint c): increasing amount with no explanation

37. Mr F complained about the Council increasing the amount of the notional capital by about £4,000 having initially told him the deprivation amount was £129,000 and then £133,000 without any explanation.
38. I have seen reference in November 2022 in a Council email about the difference between the net sale proceeds of ‘around £129,000’. The email explained Ms G may, ‘have had other expenses associated with the move between properties’.
39. The facts as stated in the Financial Panel request form referred to the net sale proceeds as £133,000 (less any connected fees) as the deprivation amount.

My findings

40. I am not satisfied the November 2022 statement by the Council amounted to fault because it did not reflect the final correct figure of £133,000. This is because the email said it was ‘around £129,000’ and so it was clear this was not a final, calculated figure. The Council went on to later correct this amount.

Complaint d): no independent review of his complaint

41. Mr F complained there was no independent review of his complaint about the Council’s deprivation of asset decision.
42. The Council pointed out it has the Financial Panel to deal with concerns about charging. This is made up of senior leaders from different areas in adult social care and corporate services. This is its appeals process.

My findings

43. I found no fault on this complaint. This is because the Council followed its three stage Review and Appeal Process for Adult Social Care Financial Services. Mr F had been through stage 1 (informal review), stage 2 (formal review) and then stage three (appeal process). Stage 3 involved consideration by the Financial Panel. If a complainant is still unhappy at the end of that process, the procedure signposted him on to us. The Council signposted him to us and we have now considered his complaint.

Complaint e): delaying dealing with the concerns he raised.

44. Mr F complained about the Council’s delay responding to concerns he raised in response to its decision.
45. The Council apologised on 23 January 2023 for not answering his previous email promptly. This was because the officer was ill, and nobody picked it up while she was away from work. He had sent his email on 15 November 2022.
46. In its letter of 14 January 2024, the Council apologised for the delay in responding to his letter sent on 4 December 2023. It explained the delay was because it needed to gather information from different teams to prepare its response.

My findings

47. I found some fault on this complaint. This is because the evidence showed there were some delays in responding to his correspondence about his concerns with its decision. I am satisfied any injustice caused by this fault was remedied by the apologies the Council gave him at the time.

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Final decision

48. I found the following on Mr F’s complaint against the Council:

• Complaint a): no fault;
• Complaint b): no fault;
• Complaint c): no fault;
• Complaint d): no fault; and
• Complaint e): fault but no outstanding injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman