Summary: Mr B complained the Council relied on incorrect and irrelevant factors when it decided to include his grandmother’s house in her financial assessment. We find no fault with the Council’s decision making.

The complaint

1. Mr B complained the Council relied on incorrect and irrelevant factors when it decided to include his grandmother’s (Mrs D) house in her financial assessment. Mr B says the Council’s decision has caused unnecessary stress to the family at a difficult time.
2. The family are represented by Mrs F in bringing the complaint to the Ombudsman.

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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. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
5. 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

6. I considered information from Mr B. I made written enquiries of the Council and considered information it sent in response.
7. Mr B, Mrs F 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

Charging

8. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. A council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
9. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay 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. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

Deprivation of assets

10. A council can look at whether a person has intentionally decreased their overall assets to reduce the amount they contribute towards the cost of care services. This is called deprivation of assets. The care and support statutory guidance (the guidance) says councils must 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.
• Whether the person had a reasonable expectation of needing to contribute to the cost of their eligible care needs.

11. Deprivation covers a broad range of ways a person might transfer a capital asset out of their possession. These include a lump-sum payment to someone else or the title deeds of a property being transferred to someone else.
12. If a council 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 the financial assessment.

What happened

13. Mrs D has care and support needs. In March 2020, Mr B started to visit Mrs D every week as he was concerned about her being isolated during the COVID-19 pandemic. He also did her shopping. Mrs D was not receiving formal care and support at this time. Mr B says he gradually started to become Mrs D’s carer, but he is not sure when his role switched from visiting her to becoming a caring one.
14. Mrs D put her house into a trust in January 2021.
15. The Office of the Public Guardian appointed Mr B as Mrs D’s Lasting Power of Attorney (LPA) for her property and financial affairs in February. This is a legal document that lets a person appoint one or more people to help make decisions on their behalf.
16. The Council received a telephone call in April from a member of staff who worked at a mental health and specialist care service. She was chasing a referral she made in March. She said Mrs D needed an urgent care package. She said Mr B was Mrs D’s main carer, but he could not cope any longer.
17. Mrs D received a domiciliary care package from the Council from May onwards. She completed a financial assessment form in June. She said on the form she still owned her house, and she had not transferred or sold all or part of her share in it. Mr B also signed the form to confirm this.
18. Mrs D went into long term residential care in November 2022. The Council asked Mr B for copies of the trust deed, which he provided. The Council’s charging department passed the information to the Council’s legal team. The charging team also stated Mrs D was selling her house.
19. The Council sent a letter to Mr B in January 2023. It said it had worked out Mrs D would need to pay a contribution towards her residential care fees. It said its legal team was reviewing the trust deed, and depending on the advice it received, it could result in it including Mrs D’s house in the financial assessment.
20. The Council asked Mr B for an explanation on why Mrs D put her house into a trust. Mr B said Mrs D and the family wanted professional guidance to help them dealing with her assets.
21. The Council continued to gather further information from Mr B. The Council’s legal team reviewed the information in August and decided Mrs D put her house in a trust in January 2021 to avoid paying care fees.
22. The Council sent a letter to Mr B in September with its decision. It said while Mrs D was not known to adult social care when she placed her house into a trust, it is clear Mr B was her carer. It said two months after the transfer of Mrs D’s house, it received a referral that Mr B could not cope any longer and the matter was becoming more urgent. The timings suggested Mrs D put her house in a trust when her health was beginning to deteriorate. As she owned her house, she or her family had a reasonable expectation she would need to pay towards her care. It also said it was not sure why the family needed professional guidance to deal with Mrs D’s assets. The house was her only asset, and the lifetime mortgage was going to absorb most of the proceeds of sale. It said it would include Mrs D’s house in an updated financial assessment.
23. Mr B contacted the Council and provided further information about his and Mrs D’s circumstances. The Council reviewed the information and confirmed its decision remained the same.

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Analysis

24. It is the Council’s responsibility to decide whether Mrs D deliberately deprived herself of capital to avoid care costs. The Ombudsman is not an appeal body. It is not for me to say whether the disposal was deliberate deprivation, or what Mrs D’s motivation was in putting her house into a trust. My role is to decide whether the Council followed the guidance and considered relevant information. If the Council has considered all the information properly, the Ombudsman cannot challenge its decision.
25. The guidance says councils can treat putting assets into a trust as deprivation of capital. However, any deprivation must be with the intention of reducing the amount someone is charged for their care. There is no direct evidence of Mrs D’s motive. Therefore, the Council is entitled to make a judgment about it by considering whether Mrs D had a reasonable expectation of needing care and support when she transferred her house, and whether she had a reasonable expectation she would need to contribute to her care costs. It decided she did as she owned a house, Mr B was caring for her, and it received a referral for urgent care two months after she transferred her house. It also decided Mr B’s explanation on why Mrs D put her house in a trust was not convincing. Those were decisions it was entitled to take, even though Mr B strongly disagrees with them. The Council has considered all the relevant information in line with the guidance. I do not find fault.

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Final decision

26. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman