Summary: Mrs X complained the Council wrongly decided her mother, Mrs Y, deliberately deprived herself of assets to avoid future care costs. There was no fault in the way the Council reached its decision.

The complaint

1. Mrs X complains on behalf of her mother, Mrs Y, about the Council’s decision there was a deliberate deprivation of assets to avoid paying Mrs Y’s care costs.
2. Mrs X says the Council’s decision means Mrs Y has to pay the full costs of her care which is not affordable.

Back to top

The Ombudsman’s role and powers

3. 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)
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)

Back to top

How I considered this complaint

5. I have considered the information provided by Mrs X and discussed the complaint with her on the phone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
6. I gave Mrs X and the Council the opportunity to comment on a draft of this decision and I considered any comments I received in reaching the final decision.

Back to top

What I found

Relevant law and guidance

Assessment of needs

7. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. Where the council identifies “eligible” care needs it will prepare a care and support plan that sets out how those needs will be met. The council can meet the person’s eligible needs by arranging for a care provider to provide care.

Reablement services

8. Reablement support services are for people after they have left hospital or when they are at risk of having to go into hospital. They are time limited and aim to help a person to preserve or regain the ability to live independently. Regulations say local authorities must not charge for the first six weeks of reablement services. They may make a charge where services are provided beyond the first six weeks, but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)

Mental capacity assessment

9. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. An assessment of someone’s capacity is specific to the decision to be made at a particular time. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests.

Charging for care costs

10. The council may charge for the cost of care it provides. Where the person has capital above the upper capital limit of £23,250 the person will need to pay the costs of their care in full. Otherwise, the council will carry out a financial assessment to determine how much they should contribute to the cost of their care.
11. The council must provide the person or their family with sufficient information about the likely costs of their care to ensure they can make an informed decision about their care and how it will be paid for.

Deprivation of assets

12. The care and support statutory guidance says people with care needs are free to spend their income and assets as they see fit but it is also important that they pay their fair contribution towards their care costs.
13. Where the council decides, after making appropriate enquiries, the person has deliberately tried to avoid paying for their care by depriving themselves of capital or income, it may charge the person as though they still have the capital or income.
14. When deciding whether a person has deliberately deprived themselves of assets the council must take into account the guidance in Annex E, which says councils should consider:
1. Whether avoiding care costs was a significant motivation at the time the person disposed of the asset, including whether the person had a reasonable expectation of the need for care and support at that time; and
2. Whether the person had a reasonable expectation of needing to contribute to the cost of their eligible care needs.
15. Annex E says it would be unreasonable to decide that a person had disposed of assets to avoid paying care costs if they were “fit and healthy and could not have foreseen the need for care and support” at the time they disposed of the asset.

What happened

16. Mrs Y has three daughters. In April 2017 Mrs Y was diagnosed with vascular dementia. In late 2018 Mrs Y moved in with her daughter, Mrs Z, who lives in a remote location. Mrs Y sold her own house and in May 2019 Mrs Y gifted some money to each of her three daughters from the proceeds of the house sale.
17. In July 2019 Mrs Z contacted the Council to request an assessment of Mrs Y’s care needs. The Council noted Mrs Z was struggling to provide the level of care Mrs Y required. The notes record Mrs Z queried whether Mrs Y would be able to move to a care home. Shortly after, Mrs Y was admitted to hospital. A Council officer visited the hospital to see Mrs Y and discussed her needs with the Occupational Therapist. They decided Mrs Y required four visits a day, morning, lunch time, tea time and a bed time call and Mrs Y agreed to receive reablement support. The officer telephoned Mrs Z who advised she would continue to provide Mrs Y’s meals and would support her with medication prompting so the lunch time and tea time calls were unnecessary.
18. A Council officer met with Mrs X and the ward sister in the hospital in early August 2019. They reported Mrs Y had passed a stair assessment and was fit for discharge. They had arranged reablement care for two visits a day which would start the next day. Following her discharge home, a Council officer visited Mrs Y to discuss her reablement goals. Mrs Z raised concerns about the timing of the bed time call which was too early for Mrs Y. The Council agreed to look to provide a later call.
19. The Council carried out a reablement review around two weeks later. Mrs Z reported she was struggling to support Mrs Y at home and referred to a discussion with her sister about Mrs Y moving into residential care. The Council agreed to assess Mrs Y’s needs and to complete a financial assessment. In late August 2019, a Council officer spoke to Mrs X who provided information about Mrs Y’s income. The notes record Mrs X said Mrs Y had sold her home, used some of the money to furnish her rooms at Mrs Z’s and had gifted the rest to her family.
20. In late August 2019 the family contacted the Council again to report the bed time call was too early and carers were arriving too late for the morning call. The Council explained that as the calls were reablement it could not provide a specific visit time and that it had to take account of the travel time involved in covering the call. The notes record the family were concerned about bad weather and how they would support Mrs Y if staff were unable to get there due to the remote location.
21. The Council sought information from the family regarding the proceeds of the sale of Mrs Y’s house and carried out a financial assessment visit. The Council considered the information, sought internal legal advice and decided the money Mrs Y gave to her daughters should be treated as notional capital. It was therefore included in Mrs Y’s financial assessment.
22. The Council telephoned Mrs Z in September 2019 to advise that it had decided to include the gifted funds in Mrs Y’s financial assessment as notional capital so Mrs Y was required to pay for the full cost of her care. It followed this up in writing. It also moved the bed time call to a later time slot.
23. A social worker visited Mrs Y in September 2019 to complete a needs assessment. Mrs Y was continuing to receive Council-funded support from the reablement team. The social worker noted the location was extremely isolated. They assessed Mrs Y’s needs could be met at home but only with ongoing oversight and support from Mrs Z. They noted Mrs Z said she felt under considerable strain. The social worker completed the needs assessment which noted Mrs Y was not orientated to time or place. “Short term memory issues were evident during assessment she did not recall the fact that she takes any medication and was not aware that she had moved into her daughter’s house to live”.
24. The social worker carried out a mental capacity assessment to assess whether Mrs Y had the capacity to decide whether to remain living with Mrs Z or to move to a residential setting. The social worker concluded Mrs Y did not have the capacity to make this decision. They held a best interests’ meeting and consulted reablement staff as part of the process. The notes record ‘discussed four calls a day from a care agency, but all agreed that even if care could be sourced it was not adequate and would not give [Mrs Z] a rest through the night as [Mrs Y] would often be up looking for the toilet’. The notes of the meeting record ‘all agreed it was in her best interests to move to a residential placement’.
25. Mrs X submitted an appeal to the Council regarding its decision to include the gifted money as notional capital. She gave Mrs Z’s name and address as the contact for correspondence.
26. The Council wrote to Mrs Z in early October 2019 in response to the appeal. It set out that Mrs Z had contacted the Council in early July 2019 for an assessment of need, that Mrs Y had a diagnosis of dementia and that she had moved in with Mrs Z as she was not coping on her own. It considered that when Mrs Y made the gifts in May 2019 there was a reasonable expectation of the need for care and support. It therefore remained of the view Mrs Y should be charged as though she still retained the capital.
27. In early October 2019 Mrs Z told the Council the family had identified a suitable care home for Mrs Y. At the time it did not have a bed available. The Council looked to find an alternative placement within the personal budget rate and Mrs Y continued to receive two visits a day from the reablement team. The carers reported they were struggling to support Mrs Y.
28. Two weeks later a room became available at the care home. It agreed to assess Mrs Y’s needs. However, Mrs Y was unwell with a chest infection and was admitted to hospital.
29. Mrs Y’s daughter Mrs Q, called the Council in late October 2019 to advise that the care home was willing to accept Mrs Y on her discharge from hospital. The Council therefore ended the support package. Mrs Y moved into the care home and the Council wrote to Mrs Z telling her Mrs Y needed to pay the full cost of her care at the care home.
30. Mrs X complained to the Council. It investigated the complaint but remained of the view the financial gifts made by Mrs Y should be included in the financial assessment. Mrs X remained unhappy and complained to us.

Findings

31. There is no dispute that Mrs Y gifted the proceeds of the sale of her property to her daughters. The dispute centres over the Council’s decision that this was done to deliberately avoid care costs. The Ombudsman is not an appeal body. My role is to consider the process followed by the Council, whether it followed the guidance and whether there was fault in the way it reached its decision. If it considered the information properly, we cannot find fault just because a person disagrees with the decision.
32. The Council took account of all the relevant information including Mrs Y’s diagnosis, her health and support needs and the timing of the gifts. It assessed this against the test laid out in the statutory guidance, sought internal legal advice and explained its reasoning in its decision letter, appeal and complaint responses. There is no evidence of fault in the way the Council reached the decision the gifts were a deliberate deprivation of assets so I cannot question the decision made.
33. When Mrs Y was originally discharged from hospital the Council provided reablement support to meet her needs in line with her needs assessment and what was agreed with Mrs Z. Due to the rural location, the Council was unable to find a care provider to support Mrs Y. The reablement team continued to support Mrs Y until she was admitted to hospital and then a care home. The Council acted as we would expect by continuing to provide care and support to meet Mrs Y’s needs during this time.
34. Mrs X considers Mrs Y was given no option but to go into a care home as the Council could not provide home care due to the location of Mrs Z’s home. There were difficulties in finding care providers. However, the Council continued to use its reablement service to meet Mrs Y’s needs. Mrs Z first raised the possibility of Mrs Y moving to a care home in July 2019 and this was noted again in August 2019. Mrs Y’s condition declined, and the carers reported increased difficulty in supporting Mrs Y. The needs assessment also noted Mrs Y was not aware she was living with her daughter.
35. In deciding whether Mrs Y should move to a residential care setting, the Council followed the appropriate process and properly completed a mental capacity assessment and reached a best interests’ decision. The family then identified a care home. The Council kept the reablement package open until Mrs Y was discharged from hospital to the care home. The Council was not at fault.

Back to top

Final decision

36. I have completed my investigation as there is no evidence of fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman