Summary: We will not investigate Mr X’s complaint about the Council’s decision that his mother Mrs X’s monetary gifts to family members amounted to a deprivation of assets. There is not enough evidence of fault in the Council’s decision-making process to warrant us investigating.

The complaint

1. Mr X is Mrs X’s son. Mrs X’s husband died and she inherited his money under the terms of his will.
2. Mr X complains the Council refuses to accept Mrs X’s wish to give about £9,000 to each of her children, grandchildren and great grandchildren and is unfairly treating those monies as a deprivation of her assets. He says the matter is very frustrating as the Council’s decision means Mrs X’s wishes for her family are not being honoured.

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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 provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information from Mr X and the Council, relevant national government guidance and the Ombudsman’s Assessment Code.

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My assessment

6. Deprivation of assets is when a person has intentionally deprived or decreased their overall assets to reduce the amount of money available to fund their care. Councils can take account of the capital disposed of when completing its financial assessment to determine how much a person needs to contribute towards the cost of their care. They consider the timing and circumstances of when a financial gift is made, to decide whether it was a deprivation of assets.
7. Annex E of the Care and Support Statutory Guidance says councils must 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?
8. In its response, the Council noted the evidence it considered before reaching its view on whether Mrs X, at the time of making the monetary gifts to family members, would have had a reasonable expectation of the need for care and support. The Council confirmed Mrs X gave the money to family in 2020 at a time when she was receiving care and support in a care home. The Council was satisfied, following consideration of the evidence, that Mrs X had a reasonable expectation of her need for care and support when she made the gifts.
9. In his complaints to the Council, Mr X argued there had not been a deprivation of assets by Mrs X because she had already paid a lot of money for her care. He considered that on that basis she should be allowed to give some of her money to family members. A deprivation of assets decision is not dependent on how much money someone has already paid for their care. It is based on a financial assessment of the care recipient while they receive that care and whether they still have sufficient funds to pay for it. National government has not placed an upper limit cap on the amount of fees a person pays before state support begins. The Council was entitled under the legislation and guidance to take into account the money Mrs X had available to her to pay for her ongoing care needs. The gifts to family reduced that money at a time when Mrs X had a reasonable expectation of needing to meet the cost of her eligible care needs, so was determined to be an intentional deprivation of assets which would otherwise be available to pay for her care.
10. Mr X says money from his late father’s will had transferred to Mrs X’s will, to fulfil her wishes, including the gifts made to the family. But the Council explained the terms of Mrs X’s will are only activated on her death. There is no money held within it or ‘ring-fenced’ by it until that time. All the money Mrs X inherited through her late husband’s will is a financial asset she owns and is available to her, which can be taken into account when determining her ability to fund her care.
11. We are 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, even if someone disagrees with it.
12. The Council properly considered the matter and applied the correct test as set out in the relevant guidance before arriving at its deprivation of assets decision. We recognise Mr X and the wider family are frustrated by the Council’s decision and disagree with it. But there is not enough evidence of fault in the way the Council made its decision to warrant us investigating.

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Final decision

13. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the Council’s decision-making process to justify us investigating.

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Investigator's decision on behalf of the Ombudsman