Summary: Mr C complained the Council was wrong to conclude that the decision in 2010 to put his mother’s property into a Trust, had been a deprivation of assets for the purpose of avoiding care and support charges. We found fault with the way the Council considered this matter and asked it to review its decision. The Council reviewed the case and decided to change its decision. As a result, it will no longer include the value of the property in Mrs M’s financial assessment.

The complaint

1. The complainant, whom I shall call Mr C, has compained to us on behalf of himself and his mother, whom I shall call Mrs M. Mr C complained that:
• The Council was wrong to conclude that the transfer of his mother’s property in 2010 had been deprivation of assets for the purpose of avoiding care and support charges.
2. As a result, the Council has included the value of his mother’s house in her financial assessment, which meant she will have to pay for the full cost of her care home placement.

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The Ombudsman’s role and powers

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)
5. 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

6. I considered the information I received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received before I made my final decision.

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What I found

Relevant legislation and guidance

7. The Statutory Care Act Guidance says in Annex B that
• (28) In some circumstances a person may be treated as possessing a capital asset even where they do not actually possess it. This is called notional capital.
• (29) Notional capital includes capital where (c) the person has deprived themselves of the capital to reduce the amount of charge they have to pay for their care.
8. Annex E says that:
• (4) People should be treated with dignity and respect and be able to spend the money they have saved as they wish – it is their money after all. However, it is also important that people pay the contribution to their care costs that they are responsible for. This is important to the overall affordability of the care and support system. A council should therefore ensure that people are not rewarded for trying to avoid paying their assessed contribution.
• (5) But deprivation should not be automatically assumed, there may be valid reasons why someone no longer has an asset and a council should ensure it fully explore this first.
• (6) Deprivation of assets means where a person has intentionally deprived or decreased their overall assets to reduce the amount they are charged towards their care. This means they must have known they needed care and support and have reduced their assets to reduce the contribution they are asked to make towards the cost of that care and support.
• (11) 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:
1. (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?
2. (b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?
• (12) For example, it would be unreasonable to decide that a person had disposed of an asset 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.
• (17) In some cases a council may wish to conduct its own investigations into whether deprivation of assets has occurred rather than relying solely on the declaration of the person.

What happened

9. Mrs M’s husband passed away in 2007. Mr C says that:
• His father said, before he passed away, that he wanted the family to have the house as he was concerned about his wife’s ability to manage her financial affairs and being vulnerable to financial abuse or fraud.
• His mother has received support at home from a care agency, since his father passed away. She had limited support with day-to-day tasks and got help with her shopping and preparing basic meals.
• When his mother’s physical and mental health worsened, they also made sure she took her medication.
• The family tried several times to get her into sheltered housing, but she did not want to go.
• The family waited with transferring the house for three years, because after his father passed away, the family was grieving. As such, transferring the property was the last thing on their mind at that time.
10. The Council carried out an assessment of Mrs M’s needs in April 2007. It said the assessment took place because Mr C felt his mother was struggling with carrying out domestic tasks and meal preparation after his father died two weeks ago. It said that Mrs M:
• Said she damaged her right knee around a year ago. As a result, she said she had very limited mobility of this leg, and difficulty climbing steps and stairs. Her family felt the loss of mobility was more 'in her mind' rather than any physical condition.
• Had no motivation to cook anything for herself or do domestic tasks.
• Appeared to be a very anxious person who her family described as ‘always being a bit odd'. The family also reported she had a OCD in the past (washing her hands constantly).
11. The Council subsequently commissioned a home care package of 2.5 hours a week of support with domestic tasks such as housework, laundry, ironing and shopping. Her needs did not increase over the coming months. Mr C told me the family mainly wanted a care package to provide some company and check she was OK, as she was alone during the day. She paid for this herself.
12. Mrs M broke her ankle in October 2007, which resulted in the Council carrying out a review of her care needs in hospital. While recovering in a care home, Mrs M was described as being highly anxious, agitated and quite demanding. She was very anxious about her leg healing and required constant reassurance of staff. The GP was called, but he didn't feel she needed a referral for a mental health assessment.
13. At a further care review in November 2007, the home manager and OT both said they felt Mrs M was physically fit to return home. However, they did have concerns about her mental wellbeing. The OT said: “It is felt that physically Mrs M can be safely maintained at home. However, due to difficulties with her emotional anxiety this may impact on her ability to maintain living independently in the community”. It was agreed to increase the care package to four visits a day. Ms C’s social worker would also source sheltered accommodation for rehousing in the long term and inform the family of options.
14. A care view from June 2010, five months before Mrs M transferred the property:
• Did not notice a deterioration in her condition or increase in her needs.
• Said that Mrs M needed assistance with daily living tasks to support her mental wellbeing to prevent increased anxiety and deterioration in her mental health.
• She struggled to manage the majority of her daily activities. She continued to need assistance with meal preparation, domestic hygiene, laundry/ironing, shopping, some personal care (showering).
15. Mrs M’s property was transferred to Mr C and his two siblings in November 2010. The family obtained legal advice in 2010 in relation to the property transfer. Mr C said the family had not heard of the possibility to manage Mrs M’s assets by becoming an Appointee (Appointed by the DWP to manage a person’s benefits) or Deputy (appointed by the Court of Protection to be responsible of the person’s financial affairs).
16. Mr C says that:
• The care review in June 2010 said there was no deterioration in her condition or increase in her needs.
• His mother continued to live at home for a further 9 years, after the transfer of the home.
• She did not move into a care home in 2019 due to her mental health, but due to the fact she had recently started to fall over regularly.
17. The Council told me that:
• Based on the issues as described in the June 2010 needs assessment, it would be difficult for either professionals or family to make a determination if any of those issues mentioned would likely deteriorate at a future date to such an extent that a residential placement would be indicated.
• Mrs M found it a struggle to manage most of her daily activities and therefore there was a reasonable expectation that she would require residential care at some point in the future.
18. I found that the two points above contradict each other, as the Council already acknowledged that, based on the 2010 needs assessment, it would not have been possible to determine that any of Mrs M’s conditions would likely deteriorate to such an extent as requiring a residential placement.
19. Mrs M went into a care home for rehabilitation in February 2018 after she went into hospital with a chest infection. She then moved into a care home permanently in May 2018. A care review from May 2018:
• Said Mrs M was receiving four visits a day by then. However, her hours had still not increased overall, and were 12 hours a week.
• Suggested that Mrs M’s mobility had deteriorated since 2010 and she needed support with all transfers and mobility to ensure safety due to risk of falls.
• Mrs M was regularly using the call bell at night and put herself at risk of falling by trying to transfer and mobilise without support during the day and night.
• It was concluded she would need 24-hour care and supervision to ensure her safety. The Council requested a 24-hour Emotionally and Mentally Ill placement (EMI) residential care as it would be unsafe for Mrs M to return home, due to her poor mobility and demanding nature. She was now requiring support from carers with all care needs over a 24-hour period.
20. The care review in May 2019 stated that: “while Mrs M manages most daily living tasks independently, she continues to require support for her mental wellbeing to prevent increased anxiety and a deterioration in her mental health”.
21. Mrs M’s property was sold in February 2020 for £52k, which was divided equally amongst the siblings.
22. The Financial assessment concluded in April 2020 that, after a twelve-weeks property disregard from 12 November 2019 until 2 February 2020, Mrs M would be a full cost payer.
23. The Council has told Mr C that it had to consider the timing of the disposal of the asset and whether, at the point of transfer, the person could have had a reasonable expectation of the need for care and support in future. As such:
• Its records show there were concerns expressed as early as 2007 about Mrs M’s ability to live independently, and the possibility she may need residential or supported accommodation.
• Mrs M was diagnosed with a personality disorder & mental health condition. The Council has since acknowledged there is no evidence she had been diagnosed with a personality disorder or mental health condition, as of 2010.
• When Mrs M transferred the property in 2010, she was already receiving daily homecare support from a care agency and had received a financial assessment for this. As such, she and her family were aware about issues around charging for care.
• If the Trust was set up because Mrs M’s family was worried about her ability to manage her finances, the family could have supported her with day-to-day finances without the need to transfer the property into their names. It could have become an appointee or deputy. Instead, it waited more than three years to transfer the property.
• Whilst the avoidance of care charges may not have been the only reason for the transfer of the above property, given the nature of Mrs M’s deteriorating health, it was evident that her mental and physical health was likely to deteriorate to such a degree that she would require residential care in the future.
24. As such, the Council concluded that, at the time the capital was transferred, Mrs M would have had a reasonable expectation of the need for residential care and support at some point in the future.

Analysis

25. In this case, the capital concerned was Mrs M’s property. As such, for Deprivation of assets to have occurred in this case, the Council needed to determine if, at the point the capital was disposed of, the person could have had a reasonable expectation of the need for care and support that could only have been provided by moving out of the property, and therefore reduced their assets to reduce the contribution they would be asked to make towards the cost of that support.
26. As part of this, there has been a disagreement between Mrs M’s family and the Council about what her condition was at the point the property was transferred into a Trust. As such, it would have been good practice to try and request further information and clarifications from Mrs M’s GP. However, the Council did not do or consider this, which is fault.
27. Mrs M received a support package between 2007 and November 2010. The records indicate this was mainly due to Mrs M’s anxiety and her reduced mobility following a fall. The Council initially told Mr C that, at the time the capital was transferred, Mrs M would have had a reasonable expectation of the need for residential care and support at some point in the future. However, the Council has since acknowledged that: Based on the issues as described in the June 2010 needs assessment, it would be difficult for either professionals or family to make a determination “if any of the issues mentioned would likely deteriorate at a future date to such an extent that a residential placement would be indicated”.
28. As such, this indicates that it is the Council’s view now, based on her condition(s) in November 2010, that: Mrs M nor her family could have had a reasonable expectation in November 2010 of the need for care and support in the future, that could only have been provided by moving out of the property.
29. Following my draft decision statement, the Council reviewed its case and changed its view. It decided that deprivation of assets did not occur and, as such, it would no longer include the value of the property in Mrs M’s financial assessment.

Recommended action

30. I recommended that, within four weeks of my decision, the Council should review its decision to determine if, in light of the information, deprivation of assets occurred, in line with what has been set out in the Care Act and its Statutory Guidance. The Council has done this.

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Final decision

31. For reasons explained above, I upheld Mrs C’s complaint.
32. I am satisfied with the actions the Council has carried out to remedy this and have therefore decided to complete my investigation and close the case

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Investigator's decision on behalf of the Ombudsman