Summary: There is no evidence of fault in the way the Council assessed Mrs X’s finances when she requested help with her care.

The complaint

1. Mrs A (as I shall call the complainant) complains the Council assessed her mother’s finances incorrectly despite evidence that both her parents had contributed to the savings account.

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The Ombudsman’s role and powers

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)

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How I considered this complaint

4. I considered the information provided by Mrs A and by the Council. Both Mrs A and the Council had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. Councils have discretion to choose whether or not to charge for non-residential services. Where a council decides to charge it must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations and have regard to the Care and Support Statutory Guidance. 
6. Where the council has decided to charge, it must carry out a financial assessment of what a person can afford to pay. It has no power to assess couples according to their joint resources: each person must be treated individually.
7. The Care and Support Statutory Guidance says, “Where a person has joint beneficial ownership of capital, except where there is evidence that the person owns an unequal share, the total value should be divided equally between the joint owners and the person should be treated as owning an equal share. Once the person is in sole possession of their actual share, they can be treated as owning that actual amount”.
8. When undertaking or reviewing a financial assessment a local authority may identify circumstances that suggest that a person may have deliberately deprived themselves of assets in order to reduce the level of the contribution towards the cost of their care.
9. 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. The guidance says, “As a first step, a local authority should seek to charge the person as if the deprivation had not occurred. This means assuming they still own the asset and treating it as notional capital or notional income”.
10. A person can deprive themselves of capital in many ways, but common approaches may be (among others) a lump-sum payment to someone else, for example as a gift.
11. The Council produces an information booklet on non-residential care charges. It says, “If the council considers that you, or someone acting on your behalf, have given away some assets, for example money or your house, in order to pay less towards your care charges, you will be treated as still owning the asset and you will be required to pay a higher fee. This is known as ‘notional capital’.
12. The booklet also says, “You will be assessed in your own right and we will not take account of the income of your carer, parent or partner”.

What happened

13. On 26 February 2021 Mrs X’s family asked the Council for help with her care. Mrs X has dementia. Mrs A had been helping Mr X with her mother’s care but was returning to work. Mr X was not able to provide all care to Mrs X.
14. The Council arranged a package of care and undertook an assessment of Mrs X’s finances.
15. A finance officer wrote to Mr X in June and asked for more information about their finances. He asked for bank statements for one of their bank accounts (account A). He asked for clarification about some pension payments. He also asked for details of two payments each of £3000 made from account A on 26 February 21. He asked for details of a further payment of £6000 from account A on 18 March.
16. Mrs A replied with details of the payments. She said two sums of £3000 had been gifted to Mr and Mrs X’s grandchildren. Another sum of £5790 had been gifted to Mr and Mrs X’s daughter to purchase a car.
17. On 12 July the finance officer wrote to Mr X with the outcome of the financial assessment. He said the sum of £11,790 had been included as ‘notional’ capital’ in the financial assessment. He also said that account A had been attributed in full to Mrs X alone, “on the basis that the only funds paid into the account derive from Mrs (X’s) State Retirement Pension.”

The appeal

18. Mrs A appealed against the outcome of the financial assessment. She said account A was used as her parents’ savings account. Their other account (account B), in which her father’s pension was the only income, was used as their current account out of which all joint household bills and living costs were paid. She said the bank was able to provide evidence from 2015 when account A was set up which showed that her father had made a payment into account A then, so the Council was incorrect to say it was only Mrs X’s money. She said the savings account (account A) was clearly their savings for their retirement. She said the way the Council had acted was not how its policy booklet said it would act.
19. The Council considered the appeal and replied on 18 August. It said although the bank statement provided showed the ‘historic movement’ of capital from account B to account A in 2015, the statement did not prove that the account balance from June 2015 to June 2021 had accumulated from both Mrs and Mr X’s income and capital.
20. The Council said the account balance over the five-year period, with only Mrs X’s income, would be over £19,000; that it had been £20,116.19 in June 2020 and had since then reduced by £12000 as a result of the two large payments. It said on the basis of Mrs X’s weekly pension payments it was reasonable to conclude the amount in account A had accrued solely from her income. It cited the Care and Support Statutory Guidance paragraph: “Where a person has joint beneficial ownership of capital, except where there is evidence that the person owns an unequal share, the total value should be divided equally between the joint owners and the person should be treated as owning an equal share. Once the person is in sole possession of their actual share, they can be treated as owning that actual amount.”.
21. Mrs A complained to the Ombudsman. She said she could not make the Council understand that her parents had always managed their money this way.
22. Mrs X went into residential care in October 2021.
23. In respect of the decision to regard £11,790 as notional capital, the Council says “due to the timing of the capital depletion; the first one being on the same day that the Adult Social Care Team had been contacted to provide care and support to (Mrs X), the impact the capital depletion had on the amount (Mrs X) would have to contribute towards her care charges and the fact that the spending activity was not in keeping with (Mrs X)’s other spending habits, it was decided that the ‘gifted’ amounts of £5,790 and £3,000 would be treated as notional income.”

Analysis

24. There is no evidence of fault in the way the Council undertook the assessment of Mrs X’s finances.
25. Once the Council considered the evidence available to it about the timing of gifts from Mrs X’s account, it was entitled to reach a decision that it could regard those sums as notional capital.
26. The calculations the Council undertook of moneys paid into account A since 2016 led it to conclude it could regard that money as set out in the Care and Support Statutory Guidance, that Mrs X owned that actual amount.

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Final decision

27. I have completed this investigation. It is not the role of the Ombudsman to question the merits of a decision which the Council has taken properly, however much someone may dislike or disagree with it.

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Investigator's decision on behalf of the Ombudsman