Summary: Mr X complained the Council failed to follow the correct procedures when it decided Mrs Y had deliberately deprived herself of assets. There was no fault in the way the Council reached its decision.

The complaint

1. Mr X complained the Council failed to follow the correct procedures when it completed Mrs Y’s financial assessment and decided she had deprived herself of assets when she put her home in trust. He said this has caused him and the family significant distress and means the Council is wrongly charging Mrs Y for the full cost of her residential care.

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The Ombudsman’s role and powers

2. 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)
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)

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How I considered this complaint

4. I have considered the information provided by Mr X and have discussed eth complaint with him on the telephone. I have considered the Council’s response to our enquiries and the relevant law and guidance.
5. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant Law and guidance

6. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
7. When the council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care. If a person has capital over £23,250, they must pay full price for their care.
8. When undertaking or reviewing a financial assessment a council may identify circumstances that suggest that a person may have deliberately deprived themselves of assets in order to reduce the level of the contribution towards the cost of their care. In such circumstances, the council should have regard to the Care and Support Statutory Guidance.

Deprivation of assets

9. Deprivation of assets means where a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care. This means that they must have known that they needed care and support and have reduced their assets in order to reduce the contribution they are asked to make towards the cost of that care and support.
10. The Care and Support Statutory Guidance says “there may be many reasons for a person depriving themselves of an asset. A council 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?”

Enduring power of attorney

11. An enduring power of attorney is a legal document which allows someone to choose another person or persons to make decisions for them about their property and affairs when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the person’s behalf. Any decision has to be in the person’s best interests.

The Council’s appeals process

12. Disputes regarding deprivation of assets are considered through the Council’s appeals process. Appeals are considered by its decision-making panel made up of at least three team managers chaired by a social work manager. The panel receives the support of a solicitor from the Council’s legal services department as required. A final internal appeal is considered by the Council’s revisit and review panel made up of three service managers including two from social work teams and a solicitor from legal services.

What happened

13. In 2007, Mrs Y appointed Mr X as her attorney under an enduring power of attorney to help her manage her property and affairs. In 2012 Mrs Y transferred her home into a discretionary trust. Mrs Y was in her mid-eighties. She therefore wished to largely pass the responsibility of her home to someone else. The trust named Mrs Y, Mr X and his wife Mrs X as trustees.
14. In the summer of 2023 Mrs Y moved into a care home. The Council sent a request for financial information to Mrs Y which Mr X responded to. The Council requested further information, and it completed the financial assessment in November 2023. It decided that as Mrs Y was one of the trustees of the discretionary trust and capital in the trust could be used for her benefit, she had capital over £23,250 and was not entitled to support with her care fees.
15. In December 2023 Mr X told the Council he was going to appeal its decision. The Council received Mr X’s appeal in late January 2024. The Council suspended Mrs Y’s invoices and continued to pay her care fees whilst the appeal was ongoing.
16. Mr X’s appeal set out that Council should not have included the discretionary trust in the financial assessment and that the trustees could not be compelled to sell the trust for Mrs Y’s benefit. It asked the Council to provide an up-to-date financial assessment and if it considered the Trust should be included to provide its full reasons.
17. The Council’s decision-making panel considered the appeal in early February 2024. It decided it needed to seek legal advice. It considered the appeal again in March 2024 but decided it needed further information from Mrs Y and her representatives and wrote to Mr X requesting this. It received this information in early April and met again to discuss the appeal in April 2024.
18. The decision-making panel concluded the original decision was incorrect as capital held in a discretionary trust should not be considered in a financial assessment. It then considered whether Mrs Y had created the trust to deliberately deprive herself of assets to avoid paying care costs. It set out the relevant law and guidance and its consideration in relation to this and decided that she had.
19. Mr X appealed the decision. The Council’s revisit and review panel considered the appeal in May 2024. It upheld the decision-making panel’s decision and decided on balance of probabilities there was a deprivation of assets.

Findings

20. The Council has acknowledged there was some delay in it reaching a decision on Mrs Y’s initial financial assessment due to its consideration of the trust documents and a short further delay whilst it sought legal advice. Given the circumstances I do not consider this delay sufficient as to be fault.
21. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
22. The decision-making panel accepted the initial decision as incorrect as discretionary trusts should be disregarded from a financial assessment. It then went on to consider whether Mrs Y had deliberately deprived herself of assets and decided she had. The Council’s revisit and review panel considered further information provided by Mr X and it upheld the decision-making panel’s decision.
23. The evidence shows the Council considered all the circumstances of the case in line with the Care and Support Statutory Guidance and followed its appeals’ process. It considered the timing and motivation behind the creation of the trust. It was for the Council to decide what weight to give the evidence Mr X provided and we cannot substitute our view for that of the Council. There is no evidence of fault in the way the Council reached its decision.

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Final decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman