Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s decision that he, acting on behalf of his brother Mr Y, set up a trust which deprived Mr Y of assets which should be used for him to self-fund his care. There is not enough evidence of fault by the Council in how it made its decision to warrant an Ombudsman investigation.

The complaint

1. Mr Y has mental and physical conditions for which he receives a package of Council care provision. Mr X, his brother, acts on behalf of Mr Y in respect of financial matters. Mr Y inherited over £50,000 in late 2019.
2. Mr X complains the Council has wrongly decided that Mr X’s setting up of a trust to hold Mr Y’s inheritance amounted to a deprivation of Mr Y’s assets.
3. Mr X says the Council’s incorrect decision means Mr Y is paying the full cost of his care. Mr X wants the Council to overturn its deprivation of assets decision.

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The Ombudsman’s role and powers

4. 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)
5. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• considered relevant parts of the Care Act 2014;
• considered the ‘Care and support statutory guidance’, issued by national government, advising local authorities on how to apply the Care Act 2014;
• issued a draft decision, inviting Mr X to reply, and considered his response.

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What I found

7. In reaching its deprivation of assets decision, the Council took into account that:

• Mr Y has been in supported housing since 2012, with a Council-funded care package;
• Mr Y became self-funding, so started to pay for his care, after receiving his inheritance in 2019, and before the creation of the trust;
• Mr X then questioned whether Mr Y should continue to pay for his care, after the trust had been set up and Mr Y’s inheritance had been moved into it.

8. The Council’s review panel determined that a ‘deprivation of assets has occurred … [Mr Y] was already in receipt of care and support at the time of the trust being set up and both he (and [Mr X], as his financial representative) were aware of the need to pay towards his care, as he had been funding his care since receiving the inheritance’. The Council was satisfied, in line with the requirements of the Care Act 2014 and the accompanying guidance, that:

• the avoidance of care and support charges was a significant motivation for the decision to move Mr Y’s inheritance into the trust; and
• at the time of Mr Y’s inheritance being moved into the trust, Mr X had a reasonable expectation that Mr Y had a need for care and support, and that they needed Mr Y’s finances to contribute to the costs of his eligible care.

9. Officers gathered evidence and decided the matter, based on the terms of the Care Act and the associated guidance. There is not enough evidence of fault by the Council in the way it reached its deprivation of assets decision to warrant an Ombudsman investigation.
10. Mr X says the decision to set up the trust was not to deprive Mr Y of assets but to allow assistance from those around him. Officers considered Mr X’s explanations for the setting up of the trust, but were not persuaded to alter their deprivation decision. I recognise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because there is not enough evidence of fault by the Council in how it made its deprivation of assets decision to warrant an Ombudsman investigation.

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Investigator's decision on behalf of the Ombudsman