Summary: The Ombudsman does not find fault with the way the Council assessed Mr B for residential care charges. There was also no fault in the way the Council conducted its investigation in respect of deprivation of assets.

The complaint

1. Mr C complains on behalf of Mrs C and Mr B about the way the Council carried out a financial assessment for Mr B’s residential care charges. He also complains the Council:
• refused to accept the property Mr B lived in before going into a care home, belonged to Mr and Mrs C in trust since 2007;
• refused to accept the land registry transfer in 2018 was simply a formality confirming the previous transfer;
• discriminated against Mr B and Mr and Mrs C by refusing to accept the transfer in trust in 2007 was carried out in accordance with Romany traveller culture and tradition; and
• unfairly accused them of fraud and intent to deprive of assets.

Back to top

The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

Back to top

How I considered this complaint

5. I spoke to Mr and Mrs C and considered all the information they provided with the complaint. I made enquiries with the Council and considered its response with the below law and guidance.
6. Mr and Mrs C and the Council had the opportunity to comment on my draft decision and I carefully considered the responses I received.

Law and guidance

7. The rules for assessing and charging for residential care are contained in the Care and Support Statutory Guidance. Councils should follow the relevant guidance when undertaking a financial assessment to determine how much a person has to pay towards the costs of their residential care.
8. The guidance says deprivation of assets is where a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged for their care. It goes on to say there may be many reasons for a person depriving themselves of an asset. A Council should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
• 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?
9. Where the Council decides there has been deprivation it should seek to charge the person as if the deprivation has not occurred. This means assuming they still own the asset and treating it as notional capital.

Back to top

What I found

What happened

10. Mr B had a degenerative health condition. The Council provided direct payments to Mr B from 2016 to employ his own personal assistants to provide care at home. Mr B’s condition deteriorated, and he moved into residential care on 15 June 2018.
11. Mr B was being assessed for continuing health care (CHC) prior to his move into the care home. CHC is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. Mr B was not eligible for CHC funding.
12. The Council carried out a financial assessment to determine what care charges Mr B needed to pay. At the assessment Mr B’s daughter, Mrs C, said Mr B had gifted his property to her and her husband in 2007. No legal transfer took place at the time but Mr and Mrs C considered the property to be theirs. The title deeds of Mr B’s property were transferred to Mrs C on 15 June 2018.
13. The Council considered Mr B had transferred his property in June 2018 to Mrs C to avoid paying care home charges. The Council included Mr B’s property as notional capital in the financial assessment so considered Mr B was self-funding. This meant he had to pay the full cost of his care home place.
14. Mr and Mrs C said the Council had ignored the customs and traditions of Romany travellers in conducting financial matters. The Council sought advice from its gypsy and traveller team to establish if transferring property without a legal agreement was a Romany traveller custom. The Council could not establish this was a custom or tradition.
15. Mr and Mrs C appealed against the financial assessment. With their appeal they provided a handwritten statement dated September 2007 from Mr B stating he was giving his property to Mrs C, a statutory declaration dated 11 June 2018 and a deed of trust dated 15 September 2007. Mr and Mrs C had not provided a copy of the deed of trust before this time.
16. The Council’s fraud team investigated the statutory declaration of 11 June 2018 and deed of trust of September 2007. They noted the statutory declaration refers to an oral agreement to transfer the property which contradicted the claim the deed of trust was drawn up in September 2007. The Council also made other checks regarding the witnesses to the deed of trust which called into question its authenticity. The Council considered the deed of trust to be fabricated and did not uphold Mr and Mrs C’s appeal. The Council sought legal advice when reaching this decision.
17. The Council paid Mr B’s care home fees while Mr and Mrs C were disputing his liability for them.
18. Mr B sadly passed away in April 2019. The Council sought to recover the fees and Mr and Mrs C settled the debt in December 2019.
19. In response to my enquiries, the Council said it considered Mr B transferred his property to avoid care home fees because:
• Financial assessments undertaken since 2016 recorded that Mr B had told the Council he owned his property. Mrs C signed the financial assessments agreeing the information was true and accurate. At no point did Mr B, Mr or Mrs C mention he did not own the property during discussions with officers about disabled facilities grant and Mr B moving to a more suitable property.
• Mr and Mrs C were aware Mr B would be required to pay towards his care fees if he was not eligible for CHC funding. A local hospice reported Mrs C said she was making enquiries into nursing homes for Mr B. This was before Mr B was considered not to be eligible for CHC funding. The outcome of the CHC assessment was known on 6 June 2018. Mrs C first raised that Mr B did not own his property on this date.
• The change of legal ownership of the property took place on 15 June 2018 which was also the date Mr B moved into residential care.
• A statutory declaration provided at the financial assessment records Mr B passed the land registry title document to Mrs C as a matter of custom, trust and pride. He acknowledged the transfer of the property to be a verbal agreement and he did not see the need to register the transfer with the land registry.
20. The Council consider Mr B had an expectation he would need to contribute to care costs at the time he transferred the property because:
• The Council’s records show Mr B was notified of potential charges for care and support from. The Council would have expected to be notified Mr B did not own the property at this time. In 2017 the Council discussed the potential charges if Mr B sold his property and how this would affect any potential adaptations to future properties. In 2018 officers informed Mr B and Mr and Mrs C of the financial implications of a nursing home placement if Mr B was not eligible for CHC funding.

Analysis

21. There is no evidence of fault in how the Council reached its decision to include the property in Mr B’s financial assessment and consider him to be self-funding.
22. The Council has applied the tests set out in the statutory guidance and explained why it considered Mr B deliberately deprived himself of his property to avoid care home fees.
23. The key issue is whether the Council should have accepted the deed of trust as evidence Mr B transferred his property to Mrs C in 2007. I am satisfied the Council properly considered if Mr B transferred his property in 2007 and whether the deed of trust is authentic. In doing so, the Council investigated the deed of trust and sought legal advice. It also explained why it considers the deed of trust to be fabricated.
24. The evidence shows it considered Mrs C’s position that it was custom and practice to transfer a property by oral agreement. It found no evidence to support Mrs C’s position. The Council has also shown it considered Mr B’s circumstances, the points raised in Mr and Mrs C’s appeal and complaint.
25. Where there is no fault in the way the decision was reached I cannot question the decision the Council made.

Back to top

Final decision

26. I do not find fault with the way the Council assessed Mr B for care charges or conducted its investigation into deprivation of assets.

Back to top

Investigator's decision on behalf of the Ombudsman