Summary: the Ombudsman’s decision is that there is no evidence of fault by the Council regarding its consideration that Mrs A had deprived herself of assets that could pay for her care in a care home.

The complaint

1. Mrs A’s son, Mr A and her legal representative Mrs D, complain the Council has unfairly decided that deprivation of Mrs A’s assets has occurred. Therefore, her son, Mr A, is liable for her care home fees. Mr A says the Council has not properly considered the information and he cannot afford to pay the fees.

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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 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)
3. 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

4. I have discussed the complaint with the complainant’s representative Mrs D, and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. I have also considered Mr A’s comments on my draft decision.

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What I found

Legislation, Guidance and Policy

5. 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” (CASS). The Council must follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
6. 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. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
7. The statutory guidance (CASS) states in Annex E that people should be able to spend the money they have saved as they wish. However, it is also important people pay their fair contribution towards their care and support costs. Local authorities should ensure people are not rewarded for trying to avoid paying their assessed contribution.
8. If a local authority considers a person has intentionally deprived themselves of assets to avoid paying care fees, it may treat those assets as if the person still owns them (notional capital) in its financial assessment.
9. Local authorities should not assume someone has intentionally deprived themselves of assets to reduce their contribution to care fees. The guidance says there may be other valid reasons. In deciding whether the purpose of the deprivation was to avoid care fees, local authorities should consider:
• 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?
• Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

What happened

10. Mrs A had given Lasting Power of Attorney (LPA) to Mr A in 2014. 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.
11. Mrs A had lived in a supported retirement flat which she owned, until 2014. She then sold her flat and moved to live with her son in France. Mr A and his wife decided that Mrs A could live at their property in France if they adapted part of their property to provide a 1 bedroom annexe for her and a studio flat for a carer. This would enable a carer to provide care for Mrs A.
12. Mr A says that he took out a bridging loan to pay for the building work before Mrs A’s flat was sold. Her property in England was sold in 2015 for £405,000. Mrs A lived in the annexe in France from December 2014. Mr A says Mrs A paid for her live in carers, as she required 24 hour care.
13. By February 2017 Mr A says his mother’s needs had increased significantly and her funds had reduced due to the cost of the building work and paying for carers. She could not afford to continue living in France. Mr A says he tried to find out what financial assistance would be available from the Council if she moved into a care home in its area. He says the Council told him it could not say until she actually moved into a home.
14. Mr A also called Surrey County Council to ask how it could assist Mrs A. It noted it advised that it could not offer an assessment of her needs until she lived in Surrey. It also asked if Mrs A understood about moving to a care home. The Council noted Mr A replied that he had made it clear to his mother that there may be a time when she would have to return to the UK if she deteriorated.
15. Mrs A moved into a care home in West Sussex County Council’s area in February 2017. This was initially on a respite basis paid for by Mrs A. The Council noted Mr A contacted it and asked about a funding assessment by the Council. It noted he said she had previously lived in Surrey and had a Council property. He also said Mrs A had capital below the limit of £23,250. Mr A says that he did not say at any point Mrs A had a Council property and the Council incorrectly noted this.
16. Mr A completed a financial assessment form on his mother’s behalf and sent it to the Council. The Council checked Mrs A’s ownership of her former property and also contacted Surrey County Council about Mr A’s contact with it.
17. In August 2017 the Council wrote to Mr A and said that it had referred the matter to its discretionary property disregard panel in July. It said the Council had not received sufficient information or evidence to account for what happened to the proceeds of his mother’s property in Surrey. Therefore, it said it had decided that Mrs A had sufficient funds to pay for her own care without recourse to Council funding. The Council explained that it could not fund a care home placement where it appeared a person had assets over £23250.
18. Mr A says the Council’s letter did not have details about how to appeal. However, he sent an appeal against the decision by email. He said that he and his mother did not have the assets to pay for her care.
19. In September 2017 the Council responded in a letter headed “potential deprivation of assets”. It said that it did not consider its earlier letter was clear. It considered Mr A, who had LPA, had full responsibility for the matter. It explained it must utilise public funds in an equitable and transparent manner. It said it carried out a financial assessment to decide if an individual was entitled to public funding according to the Government’s guidance and national thresholds. The Council noted Mrs A sold her property for £405,000 and that Mr A stated he spent £209,000 renovating his property. He also spent £5000 per month for live in care. In the Council’s view this left £69,000. The Council also noted Mrs A also had pensions to pay for day to day living expenses.
20. The Council said it would review the matter. It asked Mr A where the remaining proceeds from the sale of Mrs A’s home had gone. It also asked how he had planned to meet the cost of his mother’s care home in the UK and what he had advised the care home at the start about how he would pay the fees. The Council said based on the information he had supplied Mrs A was already suffering from dementia when she sold her property and then a significant amount of money was paid for the adaptation of Mr A’s property in France. The Council said that information from Surrey County Council indicated he had always intended that Mrs A would return to the UK when her needs increased. The Council’s view was that Mr A disposed of Mrs A’s considerable assets when she already required care and support and when it was reasonable to predict that she may need a 24 hour care home placement in the UK.
21. The Council said it had a duty to consider whether a deprivation of assets had occurred. It explained the regulations and guidance referred to criteria that local authorities were required consider when deciding if deprivation of assets applied. These are:
• Whether avoiding the care and support charge was a significant motivation
• 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?
• Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?
22. The Council said that subjectively it was reasonable to form the view deprivation of assets had occurred. It further stated that it planned to treat Mrs A as if she still possessed the funds she had given away. Therefore, Mrs A was liable to pay the full cost of her care. The Council noted Mr A said he did not have the money to pay the care home fees and the home was threatening to serve notice. The Council said in view of this it may need to step in and fund her placement to prevent harm to Mrs A. It said that if it did this it would “raise full cost invoices and will actively pursue debt recovery action.” The Council advised Mr A that it was considering contacting the Office of the Public Guardian to raise concerns regarding Mr A’s management of his mother’s finances. The Council said Mr A could submit a complaint if he disagreed with the Council’s decision.
23. Mr A appealed and also complained about the Council’s decision. He said he was shocked because he had thought the Council was going to assist him with a deferred payment agreement. He thought the Council had misrepresented and misinterpreted information. He said he had his mother’s best interests in mind, but things had turned out badly. He had used her assets so that she could have the highest quality of life at a time when she could most enjoy it. It was not always intended that Mrs A would return to the UK. He felt that Surrey County Council had misinterpreted him. The Council had said it was reviewing the matter, but it appeared to have already made a decision. He asked why it said it was looking at the evidence subjectively, so it appeared its decision was based on opinion not fact. He did not recognise the Council’s calculations that £69,000 remained. He had believed he could fund the home for a short period but had suffered unexpected financial demands.
24. In October 2017 the Council noted the care home had given notice to Mrs A because the fees had not been paid. The Council said it would carry out a Mental Capacity Assessment and a Best Interests Assessment of Mrs A. It said this may result in it transferring Mrs A to another home as the current home said it would not accept the Council’s rates. The Council confirmed that it would agree on a without prejudice basis to fund Mrs A’s placement for the foreseeable future. It said its view remained that Mr A’s actions potentially constituted deprivation of assets because he had not justified the expenditure he described. It said Mr A had not sent receipts or invoices to substantiate the money he had spent. The Council said Mr A remained responsible for the care home fees he had contracted to pay. The Council also emailed Mr A on 21 November 2017 and stated that the Council had not accepted responsibility, but agreed funding without prejudice to prevent Mrs A’s eviction from the care home. This was while the Council concluded its financial assessment and related matters.
25. The Council had requested further information from Mr A In October 2017. There followed an extended period of time during which Mr A provided information and evidence in November 2017 and the Council requested further information. The Council says it then spent time considering the evidence and sought its own legal advice. Mr A chased the Council’s response in March 2018. He said the care home had sent him an invoice for over £8000 for care contributions before October 2017.
26. In May 2018 the Council wrote to Mr A and confirmed its final decision. It apologised for the delay and explained that the considerable information and evidence he supplied had required discussion with senior management, legal and finance teams. The Council’s decision was that it was right to assume Mr A had disposed of Mrs A’s assets at a point in time when she already required care and support, and when it was reasonable to predict that she would, at some point in the near future, require admission to a care home in the UK.
27. The Council detailed the information it had considered and the guidance and policy it had taken into account. The Council explained the Care and Support Statutory Guidance (CASS) states that when considering deprivation of capital local authorities must consider motivation, timing and whether the person had a reasonable expectation of the need to contribute towards care and support costs. It further explained that case law sets out two tests a local authority must consider regarding purpose:
• the objective test - was it reasonably foreseeable that the person would need care/support/residential care at some point future?
• the subjective test – what were the intentions of the person disposing of the assets?
28. The Council explained caselaw says that a council must have enough evidence from which it can reasonably infer that a deliberate deprivation of assets took place. The decision is then made subjectively based on that evidence. In Mrs A’s case the Council had established that she was already suffering with dementia, which is a deteriorating condition when she sold her property. It was therefore reasonable for Mr A to predict that she would require ongoing care and support to meet her deteriorating needs. The Council said Surrey County Council had provided information that Mr A always intended Mrs A would return to the UK once her needs increased.
29. The Council said it considered that the money spent on the property was disproportionate and excessive in relation to Mrs A’s apparent need for accommodation. The Council said Mr A chose to spend the majority of her money on his property in France, despite her deteriorating condition. The Council calculated that the net proceeds of the property were £348,000 and that a reasonable cost to adapt the property was £50,000. It also considered one year of care costs was £43,000. This meant that capital of £254,000 should remain. The Council said that Mr A had not provided evidence where this capital had gone.
30. The Council explained that CASS guidelines say that where a Council has decided deprivation has occurred, it should as a first step to charge the person as if the deprivation has not occurred. However, it understood Mrs A did not have sufficient other assets. In accordance with CASS the Council said where a person had transferred assets to a third party, the third party was liable to pay the difference between what it would have charged and did charge the person receiving care. Therefore, it said that it would issue invoices to Mr A for the balance of the full cost from October 2017.
31. Mr A complained to the Ombudsman that the Council had not taken account of the information he sent it and was wrong to say the reasonable costs to “adapt” a property were £50,000. He said he had showed he did a great deal more than adapt the property because he had built a new annexe which had cost £209,000 and had provided evidence of this. He said the Council’s calculation regarding care costs in France was not accurate because instead of £120 per day the Council estimated were reasonable care costs, he had spent £177 per day and provided evidence of this. He also said that the Council had calculated 1 year of care costs when Mrs A had lived in France for over two years. Mr A did not accept the Council’s decision that he had always intended Mrs A would return to the UK once her needs increased. He said he hoped his mother would spend her last few years living with family and cared for in purpose built accommodation. However, he said he had miscalculated the cost of care in France and had received poor financial advice about the potential costs. He also complained that the Council did not make it clear to him that it would seek payment from him for the care costs if the financial assessment was that he should pay for his mother’s care.
32. Sadly, Mrs A passed away in late 2019.

Analysis

33. I have considered whether there was fault by the Council in the way the decision was reached.
34. The Council gathered evidence and information from Mr A and other sources. In my view the Council considered relevant factors and legislation, guidance and its own policy when making a decision. The Council took account of Mr A’s LPA role as “attorney”, as he was required to act in his mother’s best interests. The Council considered the background, Mrs A’s health at the time of her move and the likelihood of her needing to pay for care in the future. The Council considered how Mrs A’s capital was spent and the reasons Mr A gave for this. I have not seen evidence of fault in the Council’s decision making. As I have not found fault in the way the decision was reached, I cannot question the merits of the decision.
35. There was some delay in the Council reaching a final decision. But it does not appear that this was avoidable as it was necessary to request further information and evidence from Mr A. Mr A supplied considerable evidence and the Council needed to consider the matter fully. I have not found fault here.
36. I consider the Council made it clear that it was paying Mrs A’s care costs on a without prejudice basis while it considered the financial assessment and deprivation of assets issues. This meant that Mr A would be liable for the costs if the Council’s decision was that deprivation had occurred.
37. In its response to my enquiries the Council noted Mr A questioned its calculations in its letter of May 2018, particularly the estimated reasonable costs. However, it considered that in any case, Mr A had told the Council that he had invested £209,000 of his mother’s savings on the two-bedroom annexe to his property. The Council considers this was excessive. The Council says this investment has not been sold or rented out to supply income for Mrs A towards her care home fees. It also says even if the Council had accepted the full amount Mr A says they paid, he has not fully accounted for all the capital from the sale of Mrs A’s property.
38. Mr A responded to my draft decision that the Council was wrong to interpret his comment to Surrey County Council that he made it clear to his mother that she “may need to return” as “he always intended that she would return”. In his view this was misinterpretation and therefore the Council consideration of intention was faulty. I have considered this and while the Council changed the emphasis, I have not found fault by the Council in its consideration that it was Mr A’s apparent plan or intention that Mrs A would return to the UK if her needs increased.

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Final decision

39. I have not found evidence of fault by the Council. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman