Summary: Mr X, complained on behalf of the late Mr Y about the Council’s decision to include a gift to Mr Y’s relative as notional capital when determining Mr Y’s care contributions. Mr X also complained about the assessment process, including delays, inadequate communication and threatening recovery action for Mr Y’s care fees. We have ended this investigation because a court has already made a judgment on the deprivation of assets issue and there is nothing worthwhile we can achieve by pursuing the other matters further.

The complaint

1. Mr X, complained on behalf of the late Mr Y about the Council’s decision to include a gift to Mr Y’s relative as notional capital when determining Mr Y’s care contributions. Mr X also complained about the assessment process, including delays, inadequate communication and threatening recovery action for Mr Y’s care fees. Mr X said the matter caused the family significant distress and depleted Mr Y’s estate.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:
• further investigation would not lead to a different outcome; or
• there is no worthwhile outcome achievable by our investigation (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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)

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How I considered this complaint

5. As part of the investigation I have considered the following:
• documents provided by Mr X and spoke to him on the telephone;
• documents and information provided by the Council; and
• relevant law and guidance.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

7. The Care and Support Statutory Guidance says:
• there are some cases where a person may have tried to deliberately avoid paying for care and support costs through depriving themselves of assets. In such cases, the local authority may either charge the person as if they still possessed the asset or, if the asset has been transferred to someone else, seek to recover the lost income from charges from that person. (8.28)
• where a person has accrued a debt, the local authority may use its powers under the Care Act to recover that debt (8.29).
• ultimately, the local authority may institute County Court proceedings to recover the debt. However, they should only use this power after other reasonable alternatives for recovering the debt have been exhausted. (8.30)

What happened

8. Several years ago Mr Y gifted his relative some money. A month later Mr Y became ill and after being discharged from hospital lived in a care home. The following year Mr X contacted the Council and raised concerns about Mr Y’s finances and his ability to pay for his care fees. Mr X completed a financial assessment form and sent it back to the Council. Mr X said the Council delayed asking for relevant financial information and the Council’s four-month delay caused the family distress. The Council sent Mr X the outcome of the financial assessment which was that Mr Y should self-fund his care and said the monetary gift was a deprivation of assets.
9. Mr X complained to the Council and said Mr Y’s financial assessment was incorrect and the gift to Mr Y’s relative was not a deliberate act to lead to the deprivation of assets. He also said the Council’s decision letter did not include how it had reached its decision.
10. The Council responded to Mr X and apologised for the delay in reviewing Mr Y’s financial assessment and for the financial assessment decision letter not including relevant legislation and further information which informed its decision. It explained how and why it had reached its decision. The Council also said Mr Y was still liable for the full cost of his care home placement. Mr X responded and said the stage 1 response was full of inaccuracies. The Council sent Mr X a stage 2 response, it apologised for the stage 1 inaccuracies. It said an invoice would be issued to recover the outstanding care home fees. Mr X was unhappy and said the Council took threatening recovery action for the care home fees.
11. Mr Y passed away and his outstanding care home fees were not paid. The Council decided to take court action to recover the debt. The court judged Mr Y owed the care home fees. Mr X told me he was not made fully aware of the court action because he did not receive all the court papers which were incorrectly put in Mr Y’s name and he could not attend court to argue his case.

Analysis

12. The guidance states a council may start county court proceedings to recover debt. The Council decided to take court action which was a decision it was entitled to make and it could do that even though Mr X had complained to us. As explained in paragraph 2 above we cannot consider any matter which has already been considered by a court. The court has decided Mr Y’s estate owed the money to the Council. If Mr X is unhappy with the court process or the court’s judgment he can apply to the court to have the decision set aside.
13. Mr X also raised concerns about delay, about the inadequate response to the financial assessment and that the Council threatened recovery action. The Council accepted the financial assessment decision letter should have included the legislation and further information to explain its decision and has already apologised for this and for the delay with the financial assessment. The Council’s apology was appropriate action to remedy the injustice caused and I could not achieve anything further. The Council was entitled to ask for Mr Y’s care home debt to be paid and the recovery action is too closely linked to the court case for me to investigate that point further.
14. For the reasons set out above I have ended my investigation.

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Final decision

15. I have ended this investigation. I cannot consider events that have been decided in court and for the other matters there is nothing worthwhile I can achieve by investigating further for the reasons set out above.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman