Decision : Not upheld
Decision date : 31 Jan 2019
The Ombudsman's final decision:
Summary: Mrs B’s representative complains the Council has wrongly assessed her as being self-funding and charged care costs longer than it should have done. Mrs B’s representative complains the Council have wrongly applied the diminishing notional capital rules and have not considered her outstanding debts. The Ombudsman has not found fault.
- Mrs B’s representative complains the Council have wrongly assessed her as being self-funding and charged care costs longer than it should have done.
- Mrs B’s representative complains the Council have wrongly applied the diminishing notional capital rules and have not considered her outstanding debts.
The Ombudsman’s role and powers
- We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
- If we are satisfied with a council’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)
How I considered this complaint
- I considered:
- the complaint and information Mrs B’s representative provided;
- documents supplied by the Council;
- relevant legislation and guidelines;
- the Council’s policies and procedures;
- a complaint made to the Ombudsman in 2015. The complaint about whether the Council should have given Mrs B advice about selling her property was closed on the basis there was not enough evidence of fault; and
- the Council, Mrs B and her representative’s comments on a draft decision.
What I found
- The Council must recover the full cost of providing residential care to a person with enough capital (Charging and Assessment of Resources Regulations 2014, SI 2014/2672, reg 12(1)).
- The amount the Council charges for care and support provided under the Care Act 2014 is decided by a financial assessment.
- The Council calculates the amount someone should contribute towards their care using their income, savings and other capital (SI 2014/ 2672 Care and Support (Charging and Assessment of Resources).
- In England, people with over £23,250 of capital are responsible for the full cost of their residential care (SI 2014/ 2672 Care and Support (Charging and Assessment of Resources).
- Deprivation of assets is where someone deliberately reduces their assets to avoid paying care and support costs (SI 2014/ 2672 Care and Support (Charging and Assessment of Resources).
- If the Council finds someone has deliberately deprived themselves of assets, they will be treated as having capital to the value of the assets disposed of (Care Act 2014 (2014 c 23)). In other words, the person will be treated as having the income they deprived themselves of (SI 2014/ 2672 Care and Support (Charging and Assessment of Resources).
- Where the adult is treated as having notional capital, ‘diminishing notional capital rules’ apply (SI 2014/2672 Care and Support (Charging and Assessment of Resources) Regulations 2014). The Council reduces the notional capital by the difference between the amount paid by the individual and the amount that would have paid if the individual had the capital they deprived themselves of.
- This chronology includes key events in this case and does not cover everything that happened. It includes events from 2012 to provide context. The complaint relates to actions taken from August 2018 onwards.
- In February 2012, Mrs B started to use social care services.
- In March 2012, the Council carried out a financial assessment. The Council decided Mrs B had to contribute towards her non-residential care costs.
- In August 2013, Mrs B moved in with her son.
- In November 2013, Mrs B sold her home and gave the money from the sale of her house to relatives. The Council found Mrs B had deliberately deprived herself of capital. The Council applied the diminishing notional capital rule from this date.
- In January 2017, Mrs B moved to the nursing home where she currently lives. The Council assessed Mrs B as having more than £23,250 in notional assets. Mrs B had to pay the full cost of residential care.
- In August 2018, Mrs B’s representative wrote to the Council. The representative asked the Council to reduce Mrs B’s notional assets by:
- the amount owed in outstanding rent payments for the period she was living with her son; August 2013 to January 2017; and
- the amount it would have cost for her live in a nursing home if she had not been living with her son.
- Between November 2013 and January 2017, Mrs B was living with her son and receiving social care services. The Council carried out a financial assessment and decided Mrs B had to pay for her care because she had over £23,250 in notional assets. The Council correctly calculated Mrs B’s income and expenses and reduced her notional assets by the correct amount.
- In January 2017, Mrs B moved into a residential care home. The Council reassessed Mrs B’s income and expenses. Mrs B had over £23,250 in notional assets and was self-funding. The Council reduced Mrs B’s notional assets by the correct amount and in July 2018, Mrs B had over £23,250 in notional assets.
- Mrs B should pay for her care until her notional assets fall below £23,250.
- The Council does not have to take account of the costs that would have been incurred had Mrs B gone into residential care in August 2013 rather than living with her son. The Council is also not required to take account of the money owed by Mrs B to her son as this debt was raised retrospectively and there is no evidence of a tenancy agreement being in place whilst she was living there.
- I have completed my investigation and have not upheld Mrs B’s complaint. I found no fault with how the Council calculated Ms B’s notional assets.
Investigator's decision on behalf of the Ombudsman