Summary: We will not investigate Mr X’s complaint about the Council’s decision to include his mother Mrs X’s former home and the proceeds of its sale when calculating her care fee contributions. There is not enough evidence of fault in the Council’s decision-making process to warrant an investigation. Any Council delay in making its decision has not resulted in a significant personal injustice justifying investigation.

The complaint

1. Mr X’s parents Mr and Mrs Y owned a mobile home. They placed it into a Trust in 2019. Mrs Y has dementia and started receiving social care support in 2015. Mr Y died in 2021. The Council assessed Mrs Y’s finances for care fees to determine her contribution towards her care fees.
2. Mr X complains the Council:
1. has incorrectly determined the motivation to set up the Trust was for the avoidance of Mrs Y’s care fees;
2. delayed in deciding to include the value of the home in Mrs Y’s financial assessment.
3. Mr X says the matter has caused deep distress to him and his immediate family during a time of bereavement. Mr X says had the family known that proceeds from the home would be included in Mrs Y’s assessment of care fee contributions, they could have kept the property and moved his mother back, and they could have taken turns caring for her with some support. He says the family does not have the same option as the home has been sold.
4. Mr X wants the Council to:
• not include the home proceeds in Mrs Y’s care fees calculation;
• honour the Trust, and the wishes of his parents to leave the proceeds of their property to other family members.

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The Ombudsman’s role and powers

5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

6. 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)

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How I considered this complaint

7. I considered information from Mr X, and the Ombudsman’s Assessment Code.

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My assessment

8. We can only go behind a council’s decision if there has been fault in its decision‑making process which, but for that fault, would have resulted in a different decision. So my assessment has considered whether the Council has followed the appropriate process when reaching its decision.
9. To assess Mrs Y’s care fee contributions, the Council sought information about the Trust. They sought the full legal file relating to the time the Trust was set up by Mr Y in 2019, but that was not available. Officers considered the relevant evidence they held, including information and comment from Mr X, in line with the legislation. They reached their view that a significant motive for the creation of the Trust was to avoid the payment of fees otherwise payable for Mrs Y’s care. They set out their reasons in their appeal decision. There is not enough evidence of fault in the Council’s decision-making here to warrant an investigation. I realise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
10. Mr X says the Council should have assessed Mrs Y’s finances when his father died in February 2021 but delayed this. He says he gave the Council the information he had about the Trust at that time. If the Council had advised the family the mobile home’s value would have been counted towards Mrs Y’s assets for care fee purposes, Mr X says the family could have kept it and taken turns looking after her at home, with some support. He says the Council’s delay in doing the assessment prevented the family from caring for Mrs Y in her home, an option they no longer have because they sold the property in 2021.
11. Even if there was fault by the Council in delaying its financial assessment, it has not led to a significant personal injustice to Mrs Y or Mr X which warrants investigation. An assessment delay may have resulted in Mrs X’s family not having the opportunity to decide to care for her themselves in her home at that time. But if they still wished to care for Mrs X in a similar way, they could use the proceeds from the property’s sale to buy her another home. Any properly created Trust would involve a clause to hold the proceeds from the assets held within it to be available for the benefit of the asset’s owner during their lifetime. While the family would have to now use the 2021 sale proceeds to find a different property, the difference between the way Mr X says the family would have cared for Mrs Y in 2021 is not sufficiently different from how they could achieve this now for it to amount to a significant injustice warranting investigation.

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Final decision

12. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s decision-making process when determining Mrs X’s care fee contributions to warrant an investigation;
• any Council delay in making its decision has not caused significant personal injustice to Mrs X or her family to justify investigating.

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Investigator's decision on behalf of the Ombudsman