Summary: We will not investigate this complaint about financial assessment for adult social care charges, and the Council’s decision about a deprivation of asset. This is because it is unlikely we would find fault in the Council’s decision-making process or reach a different outcome.

The complaint

1. Ms D says the Council has wrongly considered her relative, Mr E’s, transfer of money when completing the financial assessment of how much Mr E should contribute towards his adult social care costs. The Council has decided the transfer of the money was deprivation of capital. So has included the money in the financial assessment meaning Mr E was responsible to fund the full cost of his residential care.

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The Ombudsman’s role and powers

2. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

3. Mr E has died. We have accepted Ms D suitable to bring the complaint.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. Although the issues complained about happened more than 12 months ago, and Ms D knew about them at the time, we have decided there are good reasons why Ms D did not bring the complaint sooner so have exercised discretion to consider the complaint.
6. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

7. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

8. I considered information provided by the complainant and the Council. I considered the Ombudsman’s Assessment Code. I considered the Ombudsman’s Deprivation of Capital guidance.

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My assessment

9. The law allows councils to charge for adult social care it arranges. Charges are means tested based on a person’s financial resources. There is law and guidance which a council must follow when completing a financial assessment to decide what, if anything, someone should pay.
10. Deprivation of capital is when someone knowingly reduces their savings or assets for a financial benefit. The law says a council can treat someone as still having the capital if it finds that person has deprived themselves of it for the purpose of decreasing the amount they may be liable to pay towards the cost of meeting their needs for care and support.
11. Mr E transferred money to Ms D. The Council has decided this was deprivation of capital with a significant factor for the transfer being to reduce what Mr E would pay towards his care. Ms D has put forward arguments and evidence as to why the Council is wrong. The Council has considered these arguments and evidence through its procedure of decision and then review by senior officers. The Council wrote to Ms D at each stage, explaining the reasons for its decision. The Council’s decision letters show it has considered the relevant questions the Ombudsman would expect:

• Could the person have had a reasonable expectation of needing care?
• Did the person have a reasonable expectation of the need to contribute towards the costs of that care?
• Was avoiding care costs a significant motivation in the timing of disposing of the asset?

12. It is not our role to say whether the decision the Council made is correct, our focus is on the decision-making process. The Council has followed the correct process to reach its decision, so it is unlikely the Ombudsman would find evidence of fault. The Ombudsman cannot question the outcome, even though Ms D strongly disagrees with it.

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Final decision

13. We will not investigate Ms D’s complaint because it is unlikely we would find evidence of fault or reach a different outcome.

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Investigator's decision on behalf of the Ombudsman