Summary: We will not investigate this complaint about financial assessment for adult social care charges, and the Council’s decision about a deprivation of asset. This is because it is unlikely we would find fault in the Council’s decision-making process or reach a different outcome.

The complaint

1. Ms B says the Council failed to gather evidence when reaching its decision that her relative, Mr C, deprived himself of capital. Ms B has been frustrated by delays and having to chase the Council. The stress is affecting both Ms B and Mr C’s health.

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The Ombudsman’s role and powers

2. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused significant enough injustice to the person who complained to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. 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

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.
6. I considered the Ombudsman’s Deprivation of Capital guidance and the care and support statutory guidance issued by the Department of Health & Social Care.

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My assessment

7. The law allows councils to charge for adult social care it arranges. Charges are means tested based on a person’s financial resources. There is law and guidance which a council must follow when completing a financial assessment to decide what, if anything, someone should pay.
8. Deprivation of capital is when someone knowingly reduces the value of an asset they hold for financial benefit. The statutory guidance says a council can treat someone as still having the capital if it finds that person has deprived themselves of it to decrease the amount, they may be liable to pay towards the cost of meeting their needs for care and support.
9. The Ombudsman expects councils to consider the following when deciding if there has been a deprivation of assets:

• Could the person have had a reasonable expectation of needing care?
• Did the person have a reasonable expectation of the need to contribute towards the costs of that care?
• Was avoiding care costs a significant motivation in the timing of disposing of the asset?

10. The Council must explain its reasons in writing and give the person an opportunity to challenge the decision. Ms B says the Council failed to respond to her appeal request in October, the Council says it wrote to Mr C in December with the outcome of the appeal. The fact Ms B did not receive this outcome is not evidence the Council did not send it.
11. It is not our role to say whether the decision the Council made is correct, our focus is on the decision-making process. The Council has followed the correct process to reach its decision, so it is unlikely the Ombudsman would find evidence of fault. The Ombudsman cannot question the outcome, even though Ms B strongly disagrees with it. The Council says if Ms B can evidence the money Mr C gave her and her sibling was repayment of a loan then it can reconsider its position.
12. Any delay by the Council is unlikely to have caused a significant enough injustice to justify an investigation.

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Final decision

13. We will not investigate Ms B’s complaint because it is unlikely we would find evidence of fault or reach a different outcome.

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Investigator's decision on behalf of the Ombudsman