Summary: Mrs B complained on behalf of her father, Mr C that the Council had made unreasonable requests for information in respect of Mr C’s financial assessment for care services. The Council’s current position means that Mr C has to pay for the full cost of his care. We found some of the requests for information were unreasonable and were not available to Mr C. The Council has agreed to carry out a reassessment. We accept that its recent request for information is reasonable.

The complaint

1. Mrs B complains on behalf of her father, Mr C, that Chester West and Chester Council (the Council) made unreasonable requests for information in respect of Mr C’s financial assessment for care services. This means the Council has not completed the financial assessment and Mr C is having to pay the whole cost of his care.

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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 spoken to Mrs B, considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Care and support statutory guidance 2014

Annexe B: Treatment of capital

Who owns the capital?

5. A capital asset is normally defined as belonging to the person in whose name it is held, the legal owner. However in some cases this may be disputed and/or beneficial ownership argued. Beneficial ownership is where someone enjoys the benefits of ownership…even though the title of the asset is held by someone else In most cases the person will be both the legal and beneficial owner.
6. Where ownership is disputed, a local authority should seek written evidence to prove where the ownership lies. If a person states they are holding capital for someone else, the local authority should obtain evidence of the arrangement, the origin of the capital and intentions for its future use and return to its rightful owner.

The Council’s Charging policy

Deprivation of Assets

7. The Council may feel that a service user has deprived themselves of a capital asset in order to reduce their charges. If this is the case the Council may treat the service user as still possessing the asset.
8. The Council will consider questions of deprivation of capital when:
• The service user ceases to possess capital which would otherwise have been taken into account for the purpose of assessing their contribution towards their care services.
• The service user / carer purposely deprives themselves of capital which would otherwise have been available to them, i.e. ownership of a property is transferred to another person or the beneficiary of an insurance policy is changed so that the monies are not available to the service user.
• It is for the service user or their representative to prove that they no longer possess the capital asset. Failure to do so will result in the Council treating the resident as though the service user still possesses the actual capital.

Non-Disclosure of Financial Details

9. Service users have the right to choose not to disclose their financial details. If this right is exercised, they will be required to pay the maximum charge applicable at the time that the service was delivered.

What happened

10. Mr C lives at home with his wife Mrs C. He has Alzheimer’s disease and some other health conditions. Mrs B has power of attorney for Mr C.
11. On 30 July 2018 the Council has a record that Mrs B contacted the Council to enquire about accessing day care services for Mr C. The note says that Mr C was now not safe to be left on his own and Mrs C, who has her own health problems was struggling to care for him. She was also due to have an operation and was worried about care while she was in hospital and then recovering. The Council said Mr C could be assessed for day-care to prevent carer breakdown. It noted Mr C did not have finances over the threshold.
12. Mrs B contacted the Council again on 22 August 2018 to chase the referral. She said Mr C had refused respite care and would need three visits a day while Mrs C was in hospital. On 9 October 2018 Mrs B rang to say Mrs C was in hospital and they needed help with caring for Mr C.
13. The Council arranged care for Mr C from 4 November 2018, the first six weeks were reablement care and non-chargeable. On 10 December 2018 the Council rang Mrs B to carry out a financial assessment. The Council’s record of the call said that Mr C had a joint account with Mrs C with approximately £10,500 in it and a joint bond with £85,000. The assessor said that Mr C would be self-funding (as he had capital over the threshold of £23,250). Mrs B says she did not definitely say the bond was in joint names but that it might be, and she would ask her mother.
14. In early January 2019 the Council confirmed the outcome of the financial assessment based on joint ownership of the bond.
15. Mrs B contacted the Council to say the information she provided was incorrect and that the bond was in Mrs C’s sole name. The Council requested evidence of the bond and bank accounts. At the end of January 2019 she provided evidence that the bond was purchased by Mrs C on 15 September 2018.
16. The Council noted that the bond was purchased two months after Mrs B had first made enquiries about possible care for Mr C and so the Council required confirmation as to whether the capital used to purchase the bond came from an account in joint names or Mrs C’s sole name along with evidence of the transfer of funds.
17. Mrs B explained that Mrs C purchased the bond following the maturing of a three- year bond in Mrs C’s sole name. The bond matured on 2 September 2018 and she purchased a new one on 15 September 2018 with the proceeds of the maturing bond. She provided a letter from the bond provider confirming the maturing bond, but the value was redacted.
18. Mrs B said Mrs C had instructed her not to provide any further information about her finances as it was not relevant to Mr C and the request was unreasonable. Mrs B also disputed that she contacted the Council in July 2018 regarding Mr C’s care needs.
19. The Council took legal advice. Its legal department confirmed that it was reasonable to require further information where a document had been adapted to prevent disclosure of the full content and where the bond purchase was after the initial enquiry about care. It said that if the bond had been purchased with money Mr C to which had access, that would be deprivation of capital. It also said the financial assessment could not be completed while information was withheld.
20. The Council wrote to Mrs B explaining the situation and requesting proof of the value of the bond. Mrs B replied disputing the records of contact in July and August 2018 and confirmed she would not be providing any further information.
21. The Council wrote again to Mrs B saying that the only information it required was the value of the matured bond. It did not consider its request was unreasonable as it had a duty to protect public funds. As previous requests had been refused the Council had decided that Mr C would have to pay the full cost of his care.
22. The Council held a meeting with Mrs B on 1 May 2019 and repeated its position. It requested bank statements from the joint bank account back to July 2018. Mrs B said she would ask Mrs C if she would provide the information. Mrs B explained that due to Mrs C’s medical condition it was very difficult asking her for financial information and it caused Mrs C considerable distress which leads to stroke-like symptoms. She had received medical advice that she should avoid getting stressed and upset as that could be very dangerous. The Council said if they refused to provide the information, Mrs B would have to challenge the situation via the complaints process.
23. Mrs B did ask Mrs C for information, but this resulted in the need for emergency medical care and Mrs B was reprimanded for putting Mrs C at serious risk. Mrs B continued to dispute the Council’s position and the Council repeated its view through the complaints process and to Mrs B’s MP. It said if Mrs B provided the requested information it would review the assessment but until then any further financial assessment would produce the same outcome.
24. Mrs B complained to the Ombudsman in October 2019. Mrs B explained that it was very difficult asking her mother to disclose financial information for the reasons explained above. She also said her mother had originally invested an inheritance from her father which she reinvested each time it matured. There was never any money from any other source.
25. In April 2020 the Council carried out a fresh assessment of Mr C’s finances. Mrs B provided the same information she had done the year before and the Council assessor concluded the bond was in Mrs C’s name only and Mr C was eligible for some financial assistance. However, when the assessor referred the case for authorisation, the Council refused it.

Analysis

26. I understand the Council has a duty to protect public money, but this duty has to be balanced against the need to ensure the request for information is reasonable and in accordance with the law and guidance.
27. The statutory guidance says that a capital asset is normally defined as belonging to the person in whose name it is held, the legal owner. In this case written evidence has been provided that the bond is owned by Mrs C and its value is £85,000. Mrs B has also provided an explanation to support her view that the money is owned entirely by Mrs C.
28. The guidance goes on to say that if ownership of an asset is disputed the Council can seek written evidence to prove where ownership lies. It is arguable in this case that there is no dispute as the bond belongs to Mrs C. The Council argues that it is possible that Mr C contributed some money to the bond and so it requires further evidence to disprove this possibility. It is not clear what evidence the Council has which gives rise to the possibility that Mr C ever had an asset, of which he then deprived himself. It seems somewhat speculative.
29. I have then gone on to consider whether it is reasonable to request proof of something a person does not have, particularly as the evidence requested is not Mr C’s to provide because it belongs to Mrs C. I am not sure the Council has properly considered the details Mrs B provided regarding Mrs C’s health and the difficulty in obtaining information from her. The Council’s charging policy says a service user or representative has the right to choose not to disclose financial details, but then they will be charged the maximum for their care. Mrs C is neither a service-user nor their representative, so again it is arguable whether Mr C or Mrs B have refused to provide information.
30. The Council has left Mr C in an unsatisfactory limbo, requiring care he cannot afford to pay for himself but unable to provide information requested by the Council to prove a speculative scenario has not occurred. I considered this was fault, causing Mr C and Mrs B injustice.
31. I also consider the Council exacerbated the injustice by carrying out a second financial assessment and concluding this positively only to retract that view without an adequate explanation.

Original recommended action

32. I asked the Council to reconsider Mr C’s financial assessment, fully taking into account the information provided by Mrs B including the details about Mrs C’s health and her explanation regarding the origin of the money for the bond, to ensure its decision fully aligns with the requirements of the statutory guidance and its own charging policy.

Subsequent events

33. The Council, in its response, referred to a document from April 2017 submitted in respect of a council tax reduction application, and said this indicated Mr C had further capital. I considered this information should have been included as part of the original assessment if it was material and not raised at a much later date to justify the Council’s subsequent actions. I also considered the information provided on the document regarding the larger amount of capital did not make sense and was likely to be an error.
34. The Council insisted it needed proof of the capital referred to on the form. Mrs B obtained this from the bank. It showed that Mr C had cashed in investments amounting to around £14500 at the end of July 2018.
35. The Council now says it accepts that Mr C has no capital beyond the £14,500 plus half of the joint bank account. This meant that in December 2018 he could have had a maximum of £19800. So, it wants evidence to show where that money went and to satisfy itself that it was not used to contribute towards Mrs C’s investment bond
36. Mrs B says she cannot provide any further information: Mrs C refuses to provide any information in her name; Mr C’s health has deteriorated significantly and he is receiving end of life care. Mrs B has explained that the £14,500 went straight into the joint bank account (the only other account Mr C had) and the money has been spent on maintaining the house and paying for Mr C’s care. She has provided a list of items on which Mr and Mrs C have spent money since July 2018 amounting to over £22,000 which roughly accounts for the remaining balance in the joint account.

Further analysis

37. I considered the Council was at fault for not producing the council tax document from April 2017, until June 2020 and for not clarifying the content at a much earlier point, ideally as part of the first financial assessment in December 2018. It has caused further delay to an already urgent situation.
38. I asked the Council to accept the further information and explanation provided by Mrs B was sufficient for the Council to review the financial assessment and accept that Mr C’s only capital at December 2018 was half of the value of the joint account.
39. The Council says it will carry out a financial assessment based on Mr C’s maximum capital at 31 July 2018 (£19,800). It says it cannot reduce this any further without evidence in the form of bank statements to show the expenditure between then and 10 December 2018. I accept this is a reasonable request.

Agreed action

40. The Council has agreed (within one month of the final decision) to reconsider Mr C’s financial assessment, taking into account £19,800 as Mr C’s capital, which will incur tariff income in the calculation.
41. If Mrs B provides further bank statements between 31 July and 10 December 2018 along with explanations for any high value transactions it will adjust the capital figure accordingly
42. The Council has agreed to backdate the decision to the date of the first financial assessment in December 2018.

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Final decision

43. I consider this is a proportionate way of putting right the injustice caused to Mr C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman