Summary: The Council was not at fault in the way it reached a decision to charge full cost fees for the late Mrs X’s stay in residential care.

The complaint

1. Mr A and his sister Mrs B (as I shall call the complainants) complain that the Council sent them an invoice for their late mother’s care home fees on the basis that the proceeds of a park home she sold were classed as notional capital.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these.
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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How I considered this complaint

5. I considered the written information provided by the Council and Mr A. Both parties had an opportunity to consider and comment on an earlier draft of this statement before I reached a final decision.
6. I cannot include in this statement all the information I have seen which has led to my decision but I am satisfied that its inclusion would not have altered the outcome.

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What I found

Relevant background information and guidance

7. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

There are two types of LPA:

◾Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.

◾Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

To be effective, an attorney must register a LPA with the Office of the Public Guardian when it is made.

8. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
9. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees.
10. The Care and Support Statutory Guidance says, “When undertaking or reviewing a financial assessment a local authority 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…..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.”
11. The guidance continues: “It is up to the person to prove to the local authority that they no longer have the asset. If they are not able to, the local authority must assess them as if they still had the asset. A person can deprive themselves of capital in many ways, but common approaches may be:

(c) the title deeds of a property have been transferred to someone else”.

12. The guidance explains, “A local authority should … consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:

(a) 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?

(b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

For example, it would be unreasonable to decide that a person had disposed of an asset in order to reduce the level of charges for their care and support needs if at the time the disposal took place they were fit and healthy and could not have foreseen the need for care and support.”

What happened

13. Mrs X lived in a mobile, or ‘park’, home which Mr A and Mrs B say they purchased for her using money they had inherited from relatives. Mr A says the park homes could only be purchased by the over-50s, so he and his sister loaned the money to his mother for the purchase. He says he did not draw up a contract with his mother for the loan (and says he cannot think anyone would do so who was loaning money to a parent).
14. In 2015 Mrs X’s health deteriorated and she moved into a residential care home, on a temporary basis at first.
15. In October 2015 Mrs X gifted the park home to Mr A. Mr A registered his Power of Attorney for Mrs X in December 2015. He also put the home up for sale in December. Mrs X became a permanent resident at the care home in January 2016. The sale of the park home was completed in April 2016.

The first financial assessment

16. The Council’s records show that attempts were made to carry out a financial assessment for Mrs X in October but the appointment was cancelled by Mr A who was abroad. He did not rebook the appointment. In May 2016 Mrs B said she would act as Mrs X’s representative and the Council made an appointment for an assessment in June 2016.
17. Notes of the assessment visit say, “su lived alone in her own home - home now sold for (after expenses) £60k banked following sale at the end of feb or early march for £75k - home in mobile home park -assessment held with son and daughter - son has poa for finance daughter for care - rep thinks perm starts on 12th jan - nothing on a4w - please check -visit abandoned - no details of property sale available - son says money gifted to him following sale - requested details of sale, legal documents etc - daughter to ring in to rebook - discussed with manager and safeguarding forms to be completed and joint visit with social worker to be convened due to rep`s poa status and gifted monies”.
18. At a further meeting in September Mr A produced documents showing the amount banked for the sale of the park home would have been (after the park owner’s commission) £73,000. Mr A explained that the park home had been gifted to him so no moneys had been deposited in his mother’s bank account. The Council’s records show the assessing officer explained the ‘notional capital’ rules to him. The Council then wrote to Mrs B in October 2016 to explain that the social worker was investigating the circumstances of the gift and Mrs X would be charged full cost for her placement until that outcome was known.
19. The outcome of the safeguarding investigation was inconclusive. The social work team leader wrote to the finance office in August 2017 indicating that a fresh financial assessment would be required. On 13 October 2017 the Council completed a further financial assessment which did not take into account the proceeds of the sale of the park home. Mrs X was assessed as making a contribution to the cost of her care and the Council funded the rest of her fees.
20. Mrs X died in March 2018. The Council sent Mr A a refund of £252 in respect of an overpayment of Mrs X’s fees.

The revised financial assessment

21. In June 2018 the Council’s finance officer wrote to Mr A with some queries about the estate. She said, “We are writing to you regarding information that has been brought to our attention concerning the social care funding arrangements for your late mother,(Mrs X). This may result in a debt to ECC, please do not dispose of the estate until this matter has been resolved”. Mr A responded that he was about to undergo surgery and would respond subsequently.
22. The Council telephoned Mr A then wrote again in July. It said it was “still awaiting documentation to enable me to fully investigate the allegation raised”. It asked for the date of the registration of the Power of Attorney and for

“The date that (Mrs X) purchased the park home

A copy of the deed of gift in relation to above mentioned property

A copy of the Lasting Power of Attorney if registered;

Advise us of (Mrs X’s) previous addresses for the last 7 years (if different from park home).”

23. Mr A responded to the Council with the requested details.
24. In August 2018 the Council’s finance officer wrote again to Mr A. She said there had been a review of the documentation of the charges for Mrs X’s care and the net proceeds from the sale of the park home were being treated as belonging to Mrs X (as notional capital). She went on, “Therefore (Mrs X) would have been considered as being able to pay in full for her residential care until such a time that her capital reached a threshold of £23,250.

We have therefore revised her account and advise you that the amount owing to ECC for the residential care for (Mrs X) is £28,747.36.” In view of the size of the sum the Council offered a payment plan.

25. Mr A wrote to the Council saying that he and Mrs B “strongly disputed” the sum. He said they had been transparent from the start about the sale of the park home and had been told by an officer it was exempt from financial assessment. He requested a further review of his mother’s file.
26. The Council replied to Mr A’s complaint in October 2018. It detailed the assessments which had been conducted and said all assessments had been carried out in a professional manner. In response to a further complaint it said the complaints process had been exhausted.
27. Mr A complained to the Ombudsman. He said they had been clear about the sale of the park home from the start and had been told it was exempt from assessment. He asked why the Council had now decided to take the proceeds of the sale into account when in 2017 they had decided not to do so. He said the monies from the estate had now been distributed to Mrs X’s grandchildren and he was unable to pay the large invoice. He said he had personally suffered additional stress as he was recuperating from major surgery when the Council sent the invoice.

Analysis

28. The Council has provided additional information which we cannot share with Mr A but which I am satisfied shows the Council followed the correct procedures in the way in which it reached its decision that Mrs X should have paid the full cost of her care. That was a decision the Council was entitled to take and it is not the role of the Ombudsman to question its merits.
29. The Council advised Mr A shortly after Mrs X’s death not to dispose of the estate.

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Final decision

30. There is no fault on the part of the Council.

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Investigator's decision on behalf of the Ombudsman