Summary: Mr X complained about the way the Council handled his mother, Mrs Y’s care and finances. The Council failed to review Mrs Y’s care plan and package when concerns were raised for her wellbeing and failed to ensure care improved after it identified failings in the care provider. The Council also failed to follow the guidance when it decided Mrs Y had intentionally deprived herself of £15000 to avoid paying care fees. The Council agreed to apologise to Mr X for the distress caused and re-make its decision on the deprivation of assets in line with the guidance.

The complaint

1. Mr X complained about the way the Council handled his mother’s care and finances. Mr X complained:
• the Council failed to recognise his mother, Mrs Y, was being neglected by a care provider it commissioned;
• mistakenly decided Mrs Y had purposedly deprived herself of assets to avoid paying future care fees; and
• failed to respond to his complaint about confusing invoices and refunds on Mrs Y’s account.
2. Mr X stated his mother became unwell due to the neglect, and he was caused distress and had to seek legal representation.

Back to top

The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. If we are satisfied with an organisation’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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

Back to top

How I considered this complaint

8. I considered the documents provided by Mr X and I discussed the complaint with him on the telephone.
9. I spoke to Ms L on the telephone about her involvement with Mrs Y.
10. I considered the documents the Council provided in response to my enquiries.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant legislation

12. The Care Act 2014 sets out councils’ responsibilities in providing care and support for adults.
13. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean they cannot protect themself. A council must decide if action is needed to protect the person from abuse. (The Care Act 2014, section 42)

Care and support

14. Councils must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved. (The Care Act 2014, section 9 and 10)
15. During the COVID-19 pandemic, Government advised councils they could comply with the Care Act and statutory guidance as much as possible. They could decide to carry out online rather than face to face assessments
16. Councils have a legal responsibility to provide a care and support. The care and support plan should set out what the person’s needs are and how they will be met.
17. Councils should keep care and support plans under review. Councils should review plans at least every 12 months and should consider a light touch review six to eight weeks after agreeing and signing off the plan. They should carry out reviews as quickly as is reasonably practicable proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one. (The Care Act 2014, Section 27)

Charging

18. Councils can charge for care and support services they provide or arrange. (Care Act 2014, section 14)
19. The law states that people who have over the upper capital limit (£23,250) are expected to pay the full cost of their care. They are known as self-funders. Once their capital has reduced to less than the upper capital limit, they must only pay an assessed contribution.

Deprivation of assets

20. A deprivation of assets is where someone intentionally decreases their assets to avoid paying towards their care services. This may include giving away money. If a council decides the deprivation was deliberate it can assess people for care charges as if they still possessed the assets or money.
21. A council should not assume someone has intentionally deprived themselves of assets to reduce their contribution to care fees. The guidance says there may be other valid reasons. A council must consider all the relevant facts and explanations and decide if:
• a significant factor, or the only reason for the person giving away the asset was to avoid care fees; and
• the person could reasonably foresee they would need care and support and would need to contribute to the cost of that care.
22. If the council decides the person needing care gave money to someone else, in order to deprive themselves of it, the council can charge the other person for fees up to the same amount. The Council should tell the person what it considered and how it made its decision.

Capacity

23. 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.
24. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

What happened

Background information

25. Mrs Y lived at home on her own. Her niece, Ms L visited her regularly. Mrs Y had one adult son, Mr X who lived abroad and visited twice a year.
26. Mr X contacted the Council in February 2020. He was concerned about Mrs Y. She was not eating, washing, taking medication and was confused and forgetful.
27. Mrs Y sent her son a cheque for £15000 in March 2020.
28. On the same day the Council assessed Mrs Y’s care and support needs with Ms L, it did not speak to Mrs Y. The assessment was over the phone due to the COVID-19 lockdown.
29. The assessment said Mrs Y had first stage dementia and needed support with medication, meals, drinks and personal care. Her needs could be met by two 30-minute calls a day from care workers.
30. It recorded Mrs Y would be a self-funder as her savings were above the capital limit. Mrs Y did not have an appointee or deputy to deal with her finances.
31. The Council instructed a care provider, and they began visiting Mrs Y four working days later.

Care and support

32. Ms L contacted the Council after two weeks. She said care workers were not supporting Mrs Y with personal care or making her meals. The Social Worker phoned the care provider. There is no record of the content of that call.
33. The care provider raised a safeguarding concern with the Council. Mrs Y reported giving money to an unknown person in her home. The Council decided Mrs Y had not suffered any harm and it would not take any further action.
34. The Council reviewed Mrs Y’s care package in June 2020 with Ms L over the phone. The case note says Ms L felt Mrs Y had deteriorated since the carers started and the care provider shared the concerns. The review document said Ms L was happy with the care and the care provider did not have any concerns. The Council decided the care was meeting Mrs Y’s needs.
35. Ms L told the Council at the end of July 2020 Mrs Y’s health was deteriorating and confusion increasing. She said care workers were not washing or feeding Mrs Y.
36. The Council visited Mrs Y in August 2020. The social worker recorded Mrs Y had lost a stone in weight in six weeks. They called the care provider. There is no record of what was discussed.
37. Three days later the care provider raised a safeguarding concern. It said Mrs Y was not eating or accepting personal care. The Council decided it needed to do a capacity assessment with Mrs Y about her care and support needs, and to review her care package. The following week the Council increased Mrs Y’s care to include a third visit per day.
38. Ms L contacted the Council in November 2020. She said a care worker had been using Mrs Y’s bank card.
39. The care provider contacted the Council in January and said it wanted to cancel the third call to Mrs Y as she preferred to get up later in the day.
40. In January 2021 the CQC raised a safeguarding concern with the Council about several aspects of Mrs Y’s care during its inspection of the care provider.
41. The Council completed a safeguarding enquiry. It found the care provider had not completed all the daily visits in Mrs Y’s care plan in December 2020, was not following Mrs Y’s care plan and was not keeping accurate records.
42. The Council sent the care provider a protection plan for it to complete to address the concerns it found. It included improvements to how Care Workers accessed the house, and offered food and drink and personal care to Mrs Y.
43. The social worker became aware the care provider had not completed parts of the protection plan in February 2021. Ms L reported the care workers were not completing a 30-minute visit each time.
44. During March the social worker was in regular contact with Ms L and the care provider about concerns for Mrs Y locking and unlocking her front door. The Council changed the lock and added an action to the protection plan for care workers to lock the front door properly.
45. The council recorded the care provider was still missing, and was late for, visits to Mrs Y in April 2021.
46. Mr X visited Mrs Y in April 2021. He cancelled the care provider’s services. The Council arranged a different care provider for Mrs Y.
47. Mrs Y died in September 2021.

Financial matters

48. Ms L signed a financial declaration for Mrs Y on 22 April 2020. It said Mrs Y was a self-funder.
49. In August 2020 the Council found Mrs Y’s finances were below the upper capital threshold and she needed a financial assessment.
50. The Council visited Mrs Y in September 2020 to complete a financial assessment. It found Mrs Y needed a capacity assessment about managing her finances.
51. The Council wrote to Mr X and asked him to explain why Mrs Y sent him £15000. Mr X replied and said Mrs Y found out he had been injured in March 2020 and could not work. He used money for rent, food and bills.
52. The Council decided Mrs Y did not have the capacity to decide to give the money away at a panel meeting in October 2020. Therefore, it added the £15000 to her assessed capital. It said it was possible Mr X had taken the money and the impact was Mrs Y’s finances went below the capital threshold.
53. The Council wrote to Mrs Y in November 2020. It said because she had signed the declaration to pay for the full cost, she understood the charging policy and the upper capital threshold of £23,250. And therefore, she had purposely deprived herself of the money to avoid paying her care fees.
54. The Council assessed Mrs Y’s capacity to manage her financial affairs in March 2021. It recorded that since Mrs Y’s cognitive decline in 2015 she could not manage her financial affairs and relied on others to do so. It decided that Mrs Y did not have capacity to make decisions about her finances.
55. The Council sent Mr X a letter in October 2021 stating Mrs Y owed £8191.65 on her care account. Mr X asked the Council to review the invoice for care fees as he was unclear on the fees and refunds. Mr X repeated this request in November as he had received multiple invoices and refunds.

Complaint

56. Mr X’s solicitor contacted the Council in June and July 2021 about its decision on the deprivation of assets. They asked the Council to review its decision. The Council said it had properly considered the deprivation of assets and did not review its decision.
57. Mr X’s solicitor complained to the Council in August 2021. They said it failed to recognise the care provider was not providing adequate care which resulted in Mrs Y self-neglecting and losing a significant amount of weight. They also complained about the way the Council decided Mrs Y had deprived herself of assets. They said:
• historically Mrs Y had given several thousands of pounds a year in gifts and so the amount was not unusual; and
• Mrs Y had been suffering cognitive decline since 2015 and asked how the Council decided she had the intent to deprive herself of the assets to avoid the care fees.
58. The Council investigated Mr X’s complaints. In February 2022 the Council told Mr X’s solicitor it did not uphold the complaints, it said it:
• addressed the concerns around the service from the care provider in line with the legislation; and
• made an evidence-based decision on the financial assessment.

Further information

59. Ms L stated she had concerns about the care from the care provider from April 2020 until the contract ended. She said they did not support Mrs Y to eat or wash, or wash her clothes and money often went missing. She stated she did not agree Mrs Y’s needs were being met at the review in June 2020. Ms L said Mrs Y did not think she needed care and would often decline support.
60. The Council said it had removed the care provider from its list of providers in January 2020 due to concerns around safety including punctuality of care calls. After the care provider improved its service, the Council reinstated it as a provider in March 2020.

My findings

Care and support

61. The Council assessed Mrs Y’s care and support needs with Ms L and without speaking to Mrs Y. It developed a care and support plan to meet those needs. Given the increased flexibilities open to councils during the early stages of the pandemic there was no fault in that action.
62. Within the first month Ms L and the care provider raised separate concerns for Mrs Y. The Council’s records do not show what action it took. The Council reviewed the care plan two months later. The review document and case notes contradict each other about whether the care plan met Mrs Y’s needs or not. The poor record keeping is fault and leaves uncertainty about whether the Council took action to meet Mrs Y’s needs.
63. Ms L and the care provider raised further concerns for Mrs Y within weeks of the review. The Council decided it needed to do a capacity assessment and review Mrs Y’s care package. There is no evidence it completed either. That was fault and not in line with the guidance. This was relevant as the Council only recently reinstated the care provider after concerns about its service. The Council missed opportunities to identify if Mrs Y’s needs were being met.
64. The Council increased and decreased Mrs Y’s care visits without reassessing her needs to ensure the care met her needs. That was fault and not in line with the guidance.
65. When the Council found Mrs Y’s care was poor it developed a protection plan to improve it. It did not review the plan to ensure the care provider had completed it. The Council added an action in March 2021, but there is no evidence it reviewed the other points. In April 2021 it found the care provider was still missing care visits. The lack of review was fault and meant Mrs Y was not provided with the care in her care plan from December 2020 until April 2021.
66. The care plan included supporting Mrs Y’s nutritional needs. The care was not provided in line with the plan. Therefore, on the balance of probabilities the faults identified above contributed to Mrs Y’s significant weight loss. The faults also caused uncertainty to Mr X about the care Mrs Y would have been provided had the Council acted without fault.

Financial matters

67. That Mrs Y gave money to her son is not in dispute. The only dispute is over the Council’s decision that she did so deliberately to avoid care costs.
68. It is the Council’s responsibility to decide whether Mrs Y deliberately deprived herself of capital to avoid care costs. The Ombudsman is not an appeal body. It is not for me to make a decision on deprivation of assets. My role is to decide if the Council followed the guidance and considered relevant information in coming to its decision.
69. The guidance says gifts to family can be treated as deprivation of capital. However, any deprivation must be shown to have been with the intention of reducing the amount they pay for care. In deciding this the Council should have considered two points:
• was a significant factor, or the only reason Mrs Y gave away the money to avoid care fees; and
• could Mrs Y reasonably foresee she would need care and support and would need to contribute to the cost of that care.
70. The Council decided Mrs Y did not have capacity to give away the money. It also said because Ms L signed the declaration this meant Mrs Y understood the charging policy. These statements contradict each other. The Council said Mrs Y both had capacity to give away the money and did not. The Council did not complete a capacity assessment for financial decisions until a year after Mrs Y made the gift. Capacity assessments are time and decision specific. It said the impact of the gift was to reduce Mrs Y’s capital below the threshold, however it did not establish the reason for the gift.
71. Ms L did not have responsibility for, or authority over Mrs Y’s finances. When she signed the declaration of self-funding, Mrs Y’s finances were already below the capital limit. The Council did not discuss finances with Mrs Y until six months after she sent the cheque. Mrs Y regularly refused care and support and did not think she needed care. To correctly make a decision about deprivation of assets the Council should have considered if, at the time she made the gift, Mrs Y knew she needed care and support and would need to contribute to the cost. There is no evidence the Council considered that matter.
72. There is no evidence the Council properly considered the timing of the gift or the history of Mrs Y’s gift giving when it made its decision. The Council implied Mr X took the money however there was no evidence to base that assumption on. The Council did not follow the guidance in making its decision on the deprivation of assets and that was fault. It caused Mr X uncertainty and distress and meant that he sought legal advice about the matter.
73. Mr X asked the Council for information about the invoices and credits on Mrs Y’s account. The Council did not respond to Mr X on this matter. That was fault and caused Mr X confusion about what charges were made and removed on Mrs Y’s account.

Back to top

Agreed action

74. Mrs Y has now died. Where a person has died, and we have found fault which may have led to injustice, we will not normally seek a remedy in the same way we might for someone who was still living. Therefore, I have only considered the effect of the fault I have identified on Mr X.
75. Within one month the Council agreed to:
• apologise to Mr X for the uncertainty and distress caused by the faults identified above;
• pay Mr X a symbolic amount of £300 to recognise the same;
• re-make its decision about the deprivation of assets in line with the guidance and consider all the relevant factors;
• once it has made that decision it should write to Mr X explaining all the factors it considered and its decision. It should also provide an up-to-date summary of Mrs Y’s account with an explanation of any charges and credits; and
• if the Council decides Mrs Y did not intentionally deprive herself of assets to avoid paying care fees it should reimburse Mr X’s legal fees accrued in corresponding with the Council about that matter. Mr X should provide the Council with invoices identifying the relevant costs.
76. The Council will also:
• remind relevant staff of the important of reviewing care plans in line with the guidance and completing capacity assessments in a timely manner; and
• share the learning from this decision with staff members who consider deprivation of assets.

Back to top

Final decision

77. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman