Summary: Mr P complained that the Council failed to properly consider information provided for his mother’s financial assessment. We do not find the Council at fault. It considered all the relevant information it received and made a decision on the evidence.

The complaint

1. Mr P complained that the Council has failed to consider pertinent information that shows his late father, Mr X, had gifted his share of the proceeds of sale of the family home to his grand-daughter, Ms Z and that, therefore, Mr X’s share of those proceeds should not be considered as capital when considering the contribution that Mrs X should pay towards her social care.
2. Mr P says the Council’s view of Mrs X’s financial affairs has caused an injustice because the Council considers Mrs X has more funds available to pay for her care than she has. Mr P is concerned that Mrs X will not be able to meet her care costs.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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)

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How I considered this complaint

5. I spoke with the complainant.
6. I researched the relevant law and guidance
7. Mr P and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law

Charging for permanent residential care

8. The Care Act 2014 provides a legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
9. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person can afford to pay towards the cost of their residential care.
10. When carrying out a financial assessment of a service user, councils must consider all income and capital that that person has when calculating how much they can afford to pay. The value of any property they hold is considered as capital for the purpose of this assessment.
11. However, where one member of a married couple goes into residential care and the other spouse continues living in the family home, the value of the property is not considered as capital. If they die, it can then be considered as capital.
12. People who have savings above a certain level, known as ‘the upper capital limit’ are expected to pay the full cost of their residential care home fees. If, after paying for care, their capital is reduced to less than the upper capital limit, they will have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
13. In some cases, those receiving social care will pass assets to younger relatives before they receive social care in order to prevent these assets being spent on care. This is called ‘deprivation of assets’. Councils will seek to recover fees up to the value of the assets that have been passed in this way.

What happened

14. Below is an account of the material facts in this complaint. It is not a full chronology and is not meant to set out everything that happened.
15. In the mid-eighties, Mr and Mrs X created a trust (“the trust”) to hold the value of their property, (“the property”). There were a number of beneficiaries to the trust but it is relevant to this complaint that the trust set out that if either Mr or Mrs X died, their shares would pass to the other.
16. Mr and Mrs X have a son, Mr P and a granddaughter, Ms Z.
17. Some years after the trust was signed, Mrs X went into a residential home. Mr X continued to live in the property so Mrs X’s share in the property was not taken into account in any financial assessment undertaken to decide what if any her contribution should be to paying for her care. When Mr X died, after a period, the Council should have taken into account Mrs X’s share in its financial assessment. It delayed in doing so, which was an error but did not cause the family an injustice, so I will not be commenting further on that issue here.
18. However, when the Council came to consider Mrs X’s financial assessment, including the value of the property, it decided that the late Mr X’s share should also have passed to Mrs X upon sale of the property, as was stated in the trust agreement.
19. Mr P disagreed with this decision. He says that a 2007 letter from Mr X shows that Mr X, in fact, gave his share of the property to Ms Z. The Council has taken legal advice on that document which says that the correct legal formalities were not followed and therefore, the gift was not effective.
20. At or around the time the Council reached this decision, Mr P provided the Council with ‘acceptance of wishes’ documents from other members of the family, who said they agreed that Ms Z should have Mr X’s share of the property’s value.
21. The Council says it did not obtain legal advice on these statements. It says it did not need to because it had already received legal advice that showed the transfer of the alleged gift was invalid. It does not consider the family’s views to have a bearing on the validity of the transfer.
22. Mr P also says it is relevant, that the Office of the Public Guardian (the “OPG”), had accepted Mr P’s view as to how the shares were divided. Mr P believes the OPG supports his position.
23. The Council says the OPG did not reach a view on whether Mr X’s gift to Ms Z was valid or not. It says that, if the OPG confirms Mr P’s claims about its position, it will obtain further legal advice, including obtaining advice on the ‘acceptance of wishes’ documents.
24. Mr P did not accept the Council’s decision and complained to the Ombudsman.

Analysis

25. The Council does not say that Mrs X or her family have deliberately sought to deprive her of assets to reduce the amount she must pay for her care.
26. However, the Council says Mr X did not, in fact, properly leave his share of the property to Ms Z. It therefore considers that Mr X’s share passed to Mrs X as was anticipated in the original trust document.
27. Mr P says the Council has not properly taken into account the available evidence: the 2007 letter (which the family say transferred the share to Ms Z), the evidence provided after the transfer and sale (in the form of acceptance of wishes statements and the OPG’s intention to end its involvement in the case).
28. It is not for the Ombudsman to substitute our judgment for that of council officers when a council has considered the facts and reached a considered decision. It is also noteworthy that the Council checked its approach by taking legal advice. I accept the Council’s position that it does not need to take further legal advice on the ‘acceptance of wishes’ letters. These were written after the event.
29. I can see why Mr P believes that the OPG supported his view that the gift to Ms Z was valid. However, the OPG did not, in fact, make a determination on the validity of the gift. I am satisfied that the Council has kept an open mind on that issue, setting out that, if the OPG says otherwise, it will seek legal advice.
30. For these reasons, I do not find the Council at fault.
31. Mr P also says the Council was responsible for unacceptable delay in reaching its decision on his claims. However, in my view, the delay was for the most part understandable as the Council took steps, including obtaining legal advice, to fully consider the case before making a decision. Therefore, again, I do not find it at fault.

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Final decision

32. I have not found the Council at fault and have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman