Summary: There is no evidence the Council was at fault in the way it reached the decision about deprivation of assets, or that it harassed Mrs X as is alleged.

The complaint

1. Mr A (as I shall call him) complains on behalf of Mrs X that the Council has incorrectly decided she had deliberately deprived herself of assets in order to avoid care home charges. He also complains that the Council has harassed Mrs X, insisting on a social worker visiting her against her wishes, pressing her for payment of the accrued care home charges, and failing to recognise him as her representative.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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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What I have and have not investigated

4. I have investigated the complaint as set out above. I have not investigated Mr A’s complaint about the refusal to award NHS Continuing Healthcare funding.
5. NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.
6. Mr A argues that the Council is responsible here as there is a Section 75 partnership agreement between the council and the local NHS body and cites the legislation:

“75 Arrangements between NHS bodies and local authorities

(1) The Secretary of State may by regulations make provision for or in connection with enabling prescribed NHS bodies (on the one hand) and prescribed local authorities (on the other) to enter into prescribed arrangements in relation to the exercise of—

(a) prescribed functions of the NHS bodies, and

(b) prescribed health-related functions of the local authorities,

if the arrangements are likely to lead to an improvement in the way in which those functions are exercised.”

However, appeals against decisions about Continuing Healthcare funding are solely a matter for the NHS independent review panels. This aspect of the complaint is therefore not in the jurisdiction of the Local Government and Social care Ombudsman.

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How I considered this complaint

7. I considered the information provided by Mr A and by the Council. Both parties now had 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

8. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their 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 must pay towards the cost of their residential care.
10. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees.
11. The Care and Statutory Support Guidance says, “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.”
12. Deprivation of assets means where a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care. 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. One way in which someone may deprive themselves of assets would be to put assets into a trust which cannot be revoked.
13. A local authority should consider the following before deciding whether deprivation for the purpose of avoiding care and support charges 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?

What happened

14. Mrs X started to receive care services at home, arranged by the Council, in 2013.
15. In 2019 she arranged for Mr A to create a Deed of Trust in respect of her property.
16. In February 2022 Mrs X went to live in a residential care home. The NHS funded the first weeks of her care but in March 2022, her stay became permanent, and the Council took over responsibility for the funding arrangements.
17. The Council carried out a financial assessment. It notified Mrs X of her likely contribution towards the cost of her care but also indicated it would require sight of the Trust documents to ascertain if the value of her property should also be taken into account.

The deprivation of assets decision

18. It was not until May 2023 that the Council was able to obtain a copy of the trust document and the reasons for the timing and set up of the trust from Mr A, who was acting for Mrs X. In the interim, the Council had made an initial decision to include the property value and had deemed Mrs X would be a full cost payer from June 2022.
19. In May 2023 a social worker visited Mrs X in the care home to ensure Mrs X was aware of the situation. Mrs X did not know her care home bill had not been paid and was described as ‘embarrassed’ by the social worker in her notes. Mrs X said she would talk to Mr A and take advice from him. The next day Mrs X contacted the social worker and said Mr A was “not pleased” about the visit and suggested it was harassment.
20. While it was awaiting the return of requested documents from Mr A, the Council had also sought independent legal advice about its position. The legal advice agreed with the Council’s opinion that the making of the Trust was a deliberate deprivation of assets in order to avoid the cost of care charges, as Mrs X had been receiving care since 2013.
21. Mr A told the Council the Trust was irrelevant as Mrs X should receive NHS CHC funding which would pay for all her care. In May 2023 a checklist was completed to establish whether Mrs X might be eligible for CHC funding. The checklist was rejected by the local NHS body as there was no evidence that Mrs X had a primary health care need and would be eligible.
22. The Council wrote to Mrs X in July 2023 explaining that the reasons Mr A had supplied for placing the property into a Trust did not hold up to scrutiny. It said she had “a known care need at that time and an expectation to pay for care costs”. The Council went on to say however that because a significant debt had accrued for her charges since May 2022, the Council had paid the care home charges in the interim to avoid the threat of eviction and would recover the debt itself.
23. The Council also advised Mrs X to seek independent legal advice from a qualified legal professional in addition to her representative Mr A.
24. Mr A appealed against the decision on Mrs X’s behalf. The Council wrote to Mrs X in November, after it had considered the appeal, with its decision not to uphold it. It said the reasons she had given for placing her property in a Trust did not hold up to legal scrutiny. It reiterated that at the time the Trust was made, she knew she required care and support and had a reasonable expectation she would have to contribute towards the cost of her care.

The complaint

25. Mr A formally complained to the Council on Mrs X’s behalf. He said the Council had failed to deal with her chosen representative (himself), had visited her when she did not require it, had harassed her for payment of the debt it said she owed, had refused to accept she had a primary health care need and finally had alleged she had deliberately deprived herself of assets in order to avoid care home charges.
26. The Council replied to the complaint. It said as Mrs X asked it to correspond with Mr A it had done so but viewed this in terms of an advocacy role, as he was not known to be advising her under the terms of a legal regulator.
27. The Council said it had been important to establish whether Mrs X knew her placement was at risk due to the non-payment of her fees. It said since the confirmation from Mrs X that she wished Mr A to continue to advise her about her finances the Council had not discussed this with her. The Council set out a chronology of the notifications sent to Mrs X about the payments owed.
28. In respect of Mrs X’s health care needs the Council explained that two checklists had been completed and the CCG had rejected these as there was no evidence of a primary health care need which would make Mrs X eligible for CHC funding.
29. Finally, the Council explained again the process by which the financial assessment had been undertaken and the reasons for the decision to include the value of Mrs X’s property in the assessment.
30. Mr A complained to the Ombudsman. He also complained that the Council and the local NHS were in a section 75 partnership agreement which he said resulted in a conflict of interests for patients.
31. Mrs X’s debt in terms of care home fees currently amounts to over £90,000.

Analysis

32. The Council carried out the financial assessment in accordance with the regulations. It considered the inclusion of Mrs X’s property value, and the reasons put forward for the creation of the Trust, in line with the statutory guidance set out above (paragraphs 11-13). It obtained independent legal advice. There is no evidence of fault in the Council’s actions.
33. The Council has respected Mrs X’s wishes for it to correspond with Mr A.
34. There is no evidence of harassment. On the contrary, the Council has acted to safeguard Mrs X’s placement in the care home. It is not fault for the Council to pursue recovery of a debt to the public purse, however.
35. Mr A’s assertion that the section 75 agreement is relevant to this complaint has no basis.

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Final decision

36. I have completed this investigation. There was no fault by the Council in the way it carried out the financial assessment or made its decision after considering the information provided.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman