Summary: Mr W complained the Council wrongly decided his mother, Mrs Y, deprived herself of assets to reduce her care fees. The Council was not at fault.

The complaint

1. Mr W complained the Council wrongly decided his mother, Mrs Y, deprived herself of assets for the purpose of reducing her care fees. Mr W said this meant Mrs Y is paying for her care when she should not.

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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:
• all the information Mr W’s representative, Mr X, provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance.
5. Mr X, Mr W 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

Relevant Law and guidance

Paying for care

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 a council arranges a person’s care 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 a person’s house is their main or only home its value is not included in the person’s financial assessment. However, if the person moves into a residential placement, their house is normally included in their financial assessment because it is no longer their main or only home.

Deprivation of assets

9. When undertaking or reviewing a financial assessment a council may identify circumstances that suggest that a person may have deliberately deprived themselves of assets. Deprivation of assets means a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care.
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?”
11. If a council decides a person has deprived themselves of a capital asset to avoid care charges, it treats the asset as if it still belongs to the person receiving care. This is called ‘notional capital’.

What happened

12. This section sets out the key events in this case and is not intended to be a detailed chronology.
13. In 2021, Mrs Y signed a contract with a company owned by Mr W, to provide services in relation to development of land which Mrs Y has a 25% share in. The contract noted the company had agreed Mrs Y could pay for its service at a later date, when she had sufficient funds, from the sale of the land itself or her home.
14. Mrs Y moved from her home into supported living in October 2022, where she received a care package arranged by the Council.
15. Mrs Y sold her home in June 2023, for around £250,000. In July 2023, over £220,000 was transferred from Mrs Y’s bank account to Mr W’s company.
16. The Council became aware of the payments and sought more information from Mr W. Following a response from Mr W, the Council issued a new financial assessment decision in October 2023. It said Mrs Y had to pay for the full cost for her care back to October 2022, because when she moved out of her house and into supported living her house was no longer her main or only home and she had now sold that home.
17. Following its decision, the Council spoke to Mrs Y and her daughter about the payments to Mr W’s company.
18. Mr W asked for a review of the assessment decision in November 2023. The Council completed the review in December 2023. It noted:
• Mrs Y had been receiving some form of care since 2018 and the conditions which had necessitated that care were of the type that would require ongoing support. The Council concluded Mrs Y had a reasonable expectation of needing ongoing care and support in January 2021 when she signed the contract and in June 2023 when she sold her house.
• There was no requirement for Mrs Y to have paid Mr W’s company for services relating to the land she held a share in, and that none of the other owners of the land had contributed to the fees.
• Mr W said his company had provided services relating to the land with the aim of future development, but the land was currently worth around £15,000. It noted half the land was under an option agreement with a developer, but purchase was not guaranteed.
19. The Council decided Mrs Y had deprived herself of the money intentionally for the purpose of avoiding paying for care. It said it would treat the sum as notional capital and that Mrs Y had to pay for her care in full.

Findings

20. 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.
21. The Council’s October 2023 financial assessment decision stated Mrs Y needed to pay full cost for her care back to October 2022, because as of that date her house was no longer her main or only home and so it would be included in the financial assessment. However, that was the case only up to June 2023, when Mrs Y sold her home. Given the Council sought more information from Mrs Y and her daughter after issuing its October decision, it appears the Council had not yet decided whether to treat the transfers to Mr W’s company as deprivation of assets. The October 2023 financial assessment decision should have been clearer on this, but I do not consider it amounts to fault.
22. After Mr W asked for a review of the Council’s decision, it issued a review outcome in December 2023. That review shows the Council considered all the circumstances of the case in line with the Care and Support Statutory Guidance. It considered the timing and motivation behind the contract with Mr W’s company and transfers of the house sale proceeds, whether Mrs Y had a reasonable expectation of needing ongoing care and support and whether she would have expected to contribute towards the cost. It was for the Council to decide what weight to give the evidence it saw, 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 so I cannot question it.

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Final decision

23. I have completed my investigation. I have not found evidence of fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman