• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs B complains on behalf of her mother about the Council’s decision that she had deprived herself of capital to avoid care costs. Mrs B also complains about a top-up fee she was charged. We find no fault by the Council in respect of these substantive matters. There was a delay in the complaints process, but the Council apologised, and no further remedy is needed. The Council has agreed to our recommendation in respect of a service improvement.

The complaint

1. The complainant, whom I shall call Mrs B, complains on behalf of her mother Mrs C that the Council wrongly decided she had deprived herself of capital to avoid care costs. In addition, Mrs B complains Mrs C was paying for an en-suite facility she was unable to use, and a top-up fee was charged for this despite no financial assessment having been done and no clear information having been provided about the top-ups. As a result of these matters both Mrs B and her mother have been caused distress and upset, impacting their health, as well as financial loss. Mrs B has also been put to time and trouble seeking to have these matters resolved.

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The Ombudsman’s role and powers

1. 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)
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)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

1. I considered all the information provided by Mrs B about the complaint. I made written enquiries of the Council and took account of the information and evidence it provided in response.
2. Although some of the matters relevant to this complaint took place more than 12 months before Mrs B brought it to the Ombudsman, I have exercised discretion to investigate. This is because the Council did not issue its final response to the complaint until July 2020 and did not refer her to the Ombudsman prior to that; in addition, Mrs B has had some health issues which may have impacted on her ability to complain to us sooner.
3. Mrs B and the Council had an opportunity to comment on a draft of this decision. I considered all comments received in response before making my final decision.

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What I found

Legal and administrative information

1. The Care Act 2014 introduced a single framework for assessment and support planning.

Charging – Financial assessments

1. The Care Act, supported by the Care and Support Statutory Guidance, sets out how councils should work out how much service users should pay for services. Councils must carry out an assessment for any adult with an appearance of need for care and support. Where the person has eligible needs, the council must prepare a personal budget. That is the amount of social care funding the council will provide to meet the person’s eligible care needs.
2. Councils can charge for care they arrange or provide. The Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the charging rules councils must follow when arranging a care home placement.
3. The regulations say people who have capital over the upper limit (£23,250) are expected to pay the full cost of residential care home fees. However, once their capital has reduced below the upper capital limit, they only have to pay an assessed contribution towards the cost of care home fees.

Deprivation of capital

1. Paragraph 8.27 of the Statutory Guidance says:
   “People with care and support needs are free to spend their income and assets as they see fit, including making gifts to friends and family. This is important for promoting their wellbeing and enabling them to live fulfilling and independent lives. However, it is also important that people pay their fair contribution towards their care and support costs”.
2. Annexe E to the Statutory Guidance says:
   “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. [But]…it is 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 local authority should therefore ensure that people are not rewarded for trying to avoid paying their assessed contribution…..Deprivation of assets means where a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care. This means that they must have known that they needed care and support and have reduced their assets in order to reduce the contribution they are asked to make towards the cost of that care and support.”
3. Annexe E also says:
   “There may be many reasons for a person depriving themselves of an asset. A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
   (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?
   (b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?”

The Council’s policy

1. The Council’s residential care charging policy correctly reflects the legislation and guidance set out above.
2. The policy sets out that it will investigate whether deprivation has occurred, asking for and obtaining evidence to support information given in the financial assessment. If it decides a person has deliberately deprived themselves of assets in order to avoid or reduce a charge for care and support, it will treat that person as still having the asset for the purposes of the financial assessment and charge them accordingly.

Top-up fees

1. A person needing care may choose a more expensive provision than can be met from the person’s assessed personal budget. If they do this, a third-party such as a family member must agree to pay the difference, known as a ‘top-up’ fee.

What happened in this case

Background
Mrs C has care at home

1. In 2016 Mrs C had an accident which resulted in a broken shoulder. She had some free reablement care at home in June and July and when the period of this free care was ending a chargeable service was offered. At this time Mrs C was given information factsheets, including one about paying for care and support which refers to capital limits, and a copy of the Council’s care directory which included information about top-up fees.
2. The Council’s records from this time include a note that Mrs C had had a free trial of a lifeline alarm but that she believed she had capital over the relevant limit and planned to cancel it after the free trial period, when it would become chargeable. However, she did subsequently subscribe to the paid alarm service.
3. At the beginning of August, a care and support assessment as completed at which financial matters were discussed, and the following day a financial assessment was completed. Mrs B was present at the visit. Mrs C advised she had over the capital threshold of £23,250 as she had an investment of £28,000 intended for her grandson’s education and around £2,000 in a bank account. She signed a form for the Council which included the declaration: “I declare that I am willing and able to pay the full cost of my service and that the information I have given on this form is correct and complete.” Mrs B says this information was not correct, and that the £28,000 included the £2,000 in the bank account: I have not seen evidence of the total capital held but in any event it is not disputed the total exceeded the £23,250 threshold.
4. The Council visited again a month later to complete a review of the service. It noted: “[Mrs C] feels the care is working well but is considering cancelling the calls as she was paying the full cost for the service. She said she would discuss the matter with Mrs B. A week later she telephoned the Council to advise she wished to cancel the care package. This was arranged, and appropriate advice was given about what to do if she found she required support in the future.
5. In March 2017, the Council received a referral from the health service as Mrs C had suffered a prolapsed bowel and was awaiting surgery, so while she had been managing since ending her previous care package her needs had changed and she felt she needed support again. The Council spoke to her on the telephone and noted that she said that she had previously been assessed as a full-cost payer, but her circumstances had changed, and she no longer had savings over the capital threshold.
6. The Council visited to complete a care and support assessment, and again financial matters were discussed. Mrs C said her capital was now below the relevant threshold and the records note that she signed a copy of the Council’s ‘Charges for non-residential care and support services’ which refers to contributions to care costs.
7. A package of care calls was agreed to commence on 7 April. But on 6 April Mrs B contacted the Council to ask if residential respite care could be arranged until Mrs C had her planned operation. The following day she called again and advised she had been in touch with a residential care home (Home X) which had agreed to assess Mrs C to see if they could meet her needs, provided this was supported by the Council. The Council agreed to the home carrying out an assessment and said it would seek agreement for residential respite care.

Mrs C moves into residential care

1. On 10 April 2017, the Council was notified that Mrs C had moved into Home X. That had been arranged by the family and had taken place before the Council had the opportunity to agree to the placement or discuss any financial implications. While in the home she suffered a fall and broke her hip: she was admitted to hospital. Mrs B asked if her mother could be discharged back to Home X: this was agreed, and she returned there on discharge.
2. In June, Mrs B asked the Council about a move to an alternative home, where the weekly cost of placement would be £800. The Council said it would only pay £447.09 a week and that a third party would be required to make up the difference. Mrs B said she would speak to her mother about it.
3. On 15 June, the Council called Home X to confirm Mrs C’s extended stay at the home had been agreed. At this point the home confirmed Mrs C had been moved to a more expensive room, with an en-suite bathroom. It said the weekly cost for this room was £600 and that Mrs B had agreed to pay a top up fee of £152.91 a week.
4. A financial assessment visit was completed in August. Mrs B had been given information about arrangement which could be made for a deferred payment agreement (DPA) if Mrs X’s stay at Home X were to be made permanent, which would mean Mrs C would not need to repay the Council for costs of her care until her home was sold. In addition to discussing the DPA process, the Council’s records noted Mrs C owned her home jointly with Mrs B, and had just under £10,000 in savings. No mention was made at this point of the £28,000 investment which had been declared in 2016.
5. On 18 September Mrs B advised the Council that Mrs C would be returning to live in her own home as the top-up being paid was no longer affordable. The Council again assessed Mrs C’s care needs and agreed a package of care should Mrs C return to her own home. A financial assessment for non-residential care was also completed, and Mrs B advised that her mother’s home was in a trust for which her mother was not a beneficiary and so her share of the property value should not be included in the financial assessment.
6. Mrs C returned to live in her own home at the end of December 2017, with care calls from a private carer arranged to meet her needs. The Council agreed a personal budget.

The Council considers deprivation of capital

1. In November 2017, the Council raised a query about what had happened to the £28,000 investment declared in 2016, and began to consider whether there had been a deprivation of capital. Mrs B told the Council that the money had been de-invested in August or September 2016 and that £10,000 had been given to her for general living costs she had incurred because of ill-health, and £6,000 used for school fees for Mrs C’s grandson.
2. Land Registry information confirmed that Mrs C’s home had been transferred into a trust in Mrs C’s name with effect from 9 December 2016, with Mrs B and Mrs C as the named trustees. Information from the Office of the Public Guardian in 2018 confirmed Mrs B held power of attorney for Mrs C’s financial and property affairs, and that had been registered before the property transfer in 2016.
3. The Council decided in June 2018 that it should take a notional £16,000 into account in its financial assessment. This was discussed with Mrs B at a visit in July 2018. The record of the visit noted that it was the Council’s decision that the £16,000 gifted to Mrs B and her son while Mrs C had services and had signed a full cost declaration (referred to at paragraph 22 above) would continue to be used in the assessment of Mrs C’s contribution towards her care costs.
4. The Council considered the case at a multi-disciplinary panel meeting in 2018 when it concluded there had been a deprivation of assets. Two review meetings followed in 2018 and 2019, confirming the same decision. In its decision-making, the Council considered relevant issues.
5. On the question of whether there was a reasonable expectation that care would be required, it was noted that in 2016 after entitlement to the free reablement service ended Mrs C had care she had been required to pay for due to having capital threshold. Since Mrs C had received care before, the Council took the view that it would be reasonable to assume there would be an expectation that she may require care in the future. And as Mrs C had contributed to the cost of care, and had been given information about this and had signed confirming awareness of obligations in this regard, it was also the case that she would have a reasonable expectation of needing to contribute to the cost of her eligible care needs in future.
6. The Council also noted that records showed that shortly after care had become chargeable in 2016, Mrs C decided to cancel the care package, the cost of which she was having to pay in full.
7. In March 2019, the Council wrote to Mrs B about its decision following the most recent review meeting at which deprivation had been considered, confirming the deprivation decision had not been amended. It set out the basis for this, referring to relevant evidence from its records, saying it was clear that Mrs C had been advised about paying for care and that she had then chosen to reduce her capital before seeking assistance from the Council again. It said its decision was that Mrs C had given away capital with the intention of reducing her charge for care and so it would continue to assume a tariff income from that notional capital in the assessment of her contribution to care costs.
8. While Mrs C was receiving care at home (that is, not residential care) the issue of the value of her home was not relevant to financial assessment of her contribution towards care costs. However, it would become relevant if she moved into residential care in the future. In August 2020, the Council wrote to Mrs B to confirm that at a further multidisciplinary meeting in July it had considered information she had provided about the property and the setting up of the Trust. It considered that the setting up of the Trust prior to the request for funding towards a package of care had been done with the intention of reducing the assessed contribution towards the cost of care: it was deemed to be a deprivation of assets. The Council said that should Mrs C require residential care it would include the value of her former home in the assessment as though it were still in her possession.

The question of top-ups

1. As noted at paragraph 29 above, Mrs B arranged with Home X for her mother to move to a more expensive room, on the ground floor and with an en-suite bathroom. Mrs B says that she arranged this shortly before going on holiday, thinking this room would be better for her mother. She did not check that the en-suite facilities would be suitable for her mother’s needs however, and subsequently found she was unable to fully access them. Mrs B did not think it was appropriate that she should have to pay the top-up fee for that room in these circumstances.
2. Responding to Mrs B on this point, the Council said that it had been Mrs B’s decision to enquire with the home about an alternative room, she had been told by the home about the additional costs which this would incur, and that this would not be paid for by the Council. She had accepted the room and responsibility to pay for it, signing a top-up agreement on 28 June 2017 backdated to 14 June 2017.

Mrs B’s complaint to the Council

1. In June 2019 Mrs B complained to the Council about its decisions in respect of deprivation and the top-up charges and an investigation took place. That investigation concluded that the decision in respect of deprivation had been properly made in accordance with the Council’s residential care charging policy, and that the decision to move to a room which would incur a top-up charge had been made by Mrs B and she had agreed to pay that charge, so was responsible for it.
2. The investigator did find that wording used in the letter sent to Mrs B about the deprivation decision on 25 March 2019 had caused upset and distress which warranted an apology, and a recommendation was also made that the wording of this type of letter be reviewed.
3. The Council accepted the investigating officer’s findings and recommendations.

Analysis

1. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence. On the matter of the Council’s decision in respect of the deprivation of capital, my role therefore is to decide whether there was any fault by the Council in its assessment leading to its decision that Mrs C had deprived herself of an asset to avoid care and support charges. The key issue is not that Mrs C gave away funds to family members, because she was entitled to do what she wished with her capital. But, having done so, the Council was entitled to investigate whether avoiding care costs was a significant motive in the reasons for doing this.
2. The evidence shows the Council made enquiries, considered Mrs B’s explanations, and followed the relevant guidance and its own policy on the deprivation of assets. As a result, I am satisfied there is no evidence of fault in the way the Council reached its decision on this issue.
3. Regarding the matter of the top-up charges, I again find no fault by the Council. The evidence shows it was Mrs B’s decision to request the alternative room in the knowledge that it was more expensive, and she signed an agreement to pay the top-up charges. The arrangement was made between Mrs B and the care provider (Home X) and the Council were not involved in it.
4. There was some delay in the Council’s investigation of Mrs B’s complaint, and that was fault. The complaint was allocated for investigation on 27 June 2019 and the final response was not issued until 28 July 2020. The Council’s policy sets out that for complaints about adult social care a response will usually be issued within six weeks, but that this may be extended to up to six months. When it issued its response, the Council apologised for the delay and said that complaint responses had been put on hold due to the Covid-19 crisis. That did not account for the full extent of the delay, since that hold did not apply until March 2020, however the Council says Mrs B was kept informed throughout the complaints process.

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Agreed action

1. The Council has already apologised to Mrs B for the delay in the complaints process and I made no further recommendation in this regard.
2. With a view to service improvement however, I recommended that within three months of the date of the decision on this complaint, the Council reminds relevant staff of the timescales for investigation of adult social care complaints set out in its feedback policy.
3. The Council has agreed to my recommendation.

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Final decision

1. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman

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