Decision : Not upheld
Decision date : 17 Mar 2021
The Ombudsman's final decision:
Summary: We have not found fault with the way the Council carried out a financial assessment to decide Mr B’s eligibility for funding.
- Mr B is an elderly man who lacks the mental capacity to make decisions about his financial affairs or property. His wife, Mrs B, and their daughter represent him in the complaint.
- Mrs B says the Council has not assessed Mr B’s finances properly and disagrees with the Council’s decision that a deprivation of assets took place.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have discussed the complaint with Mrs B. I have considered the evidence that she and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the draft decision.
What I found
Assessment of needs and care plan
- The Care Act 2014 and the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s powers to charge for care and support.
- If a council is planning to charge a person for the care and support it is providing, it must carry out a financial assessment of the person’s capital and income to decide how much they should contribute.
- The funding rules are complex, but for the purpose of this complaint, it is sufficient to say that the upper capital limit for Council funding is £23,250. Therefore, if a person has eligible capital over £23,250, then they will have to pay for their own care.
- There are lot of different regulations to decide what capital is eligible and what capital is disregarded. I have summarised the relevant sections.
- 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.
- Notional capital includes capital:
- the person has deprived themselves of in order to reduce the amount of charge they have to pay for their care.
Deprivation of assets
- Deprivation of assets means where a person has intentionally deprived or decreased their overall assets to reduce the amount they are charged for their care. This means that they must have known that 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.
- The Guidance says there may be many reasons for a person depriving themselves of an asset. A local authority should consider the following before deciding whether a deprivation of assets 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?
- Mr B is an elderly man who has vascular dementia, heart failure and has had strokes. Until recently, Mr B lived at home with Mrs B. He received a package of care which started around 10 years ago.
- Mr B was known to the Council since 2013, but did not receive Council funding for the care package as he had capital over the £23,250 threshold.
- In March 2018 Mr B needed assistance from the Council via its reablement service. Mrs B told the Council that Mr B’s savings were not near the capital threshold for eligibility for council funding and that they had sufficient funds to pay Mr B’s ongoing care.
- In November 2018, Mr and Mrs B bought a second property for £89,950. The property was paid from their joint savings but they put the property in Mrs B’s sole name.
- In March 2020, Mr B moved to a care home as it was no longer possible for him to live at home. Mrs B approached the Council for a financial assessment of Mr B.
- The Council carried out the financial assessment in April 2020. Mrs B provided the information to the Council. Mrs B said Mr B had a weekly income of £360, mostly from his pensions. Mr B had capital of £22,442 in his bank accounts.
- The Council assessed Mr B and concluded that, as his capital was under £23,220, he was eligible for Council funding. The Council wrote to Mr B in April 2020 and said he would have to contribute £247 a week to the cost of his care home fees.
- The Council was aware that Mrs B continued to live in the matrimonial home and the Council discounted 50% of Mr B’s pension so that this could be given to Mrs B. The Council offered Mrs B a financial assessment to maximise her benefit income.
- During this process, the Council discovered, from Mrs B’s daughter, that Mrs B owned a second property. The Council did a Land Registry check which confirmed the ownership of the property. The Council was informed that the property was funded by Mr and Mrs B’s joint savings.
- The Council told Mrs B that, even though the property was put in Mrs B’s sole name, it would consider half of the property (£44,975) as notional capital belonging to Mr B. Mrs B’s daughter asked whether that was true if the £44,975 was a gift to Mrs B, but the Council said it would still regard this as a deprivation of assets.
- The Council informed Mrs B in May 2020 that it would consider Mr B to be over the capital threshold and he would need to self-fund his fees at the care home.
- Mrs B disagreed with the decision and later made a complaint. She said they had paid for Mr B’s care for years and had paid into the system. She said they bought the property to fund Mr B’s care and the entire rental income had been used for this. Mrs B said she had not received any income from the property. If Mr B died before her, she would be entitled to keep the property and receive the rent as income as her own pension entitlement was low.
- The Council explained how it made the decision that there had been a deprivation of assets. The Council sent me the documents which it used as part of the assessment. The Council said:
- Mr and Mrs B were aware of the capital limits for Council funding as Mrs B told the Council in March 2018 that their savings were still over the capital limit to be eligible for funding.
- Mr and Mrs B knew at the date of disposal that Mr B would need care in the foreseeable future.
- When the Council carried out the financial assessment, Mrs B did not tell the Council that they had bought a property in November 2018 or that Mr B gave a large sum of money to Mrs B. Mrs B also did not inform the Council of the rental income.
- The assessor said that, on the balance of probabilities, the disposal was made with the intention of reducing or avoiding care costs, this being a significant motive in the disposal. The assessment noted that the intention should be a significant but not the only motive for the disposal.
- Mrs B says that, at the time Mr B made the gift to Mrs B, he still had the mental capacity to make decisions about his finances and property.
- It is not for the Ombudsman to decide whether there has been a deprivation of assets or not and I cannot carry out a financial assessment. I have considered whether the Council properly considered the relevant law, guidance and policies when it carried out its financial assessment.
- The Council considered the fact that Mr and Mrs B were aware that Mr B needed care and support and that his needs for care and support were increasing. Mr and Mrs B were also aware that Mr B’s savings would be taken into account to determine his eligibility for Council funding. They knew that, as long as Mr B’s savings were over £23,250, he would not be eligible for Council funding. Knowing these things, Mr B then made a gift of £44,975 to Mrs B and Mrs B used this money to buy a property in her own name.
- The Council also took into account the fact that Mrs B did not disclose Mr B’s gift of the £44,975 to the Council, when the Council carried out the financial assessment. Nor did she disclose the purchase of the second property or the rental income of the second property.
- I have not found evidence of fault in the way the Council carried out the financial assessment. The Council considered the relevant facts and the correct law, guidance and policies and decided that, on the balance of probabilities, there had been a deprivation of assets. It concluded that the intention to avoid or reduce care costs was a significant motive (not necessarily the only motive) for the disposal.
- The Ombudsman cannot question the merit of the decision if there is no fault in the way the decision was made.
- I have not found fault in the way the Council carried out a financial assessment.
Investigator's decision on behalf of the Ombudsman