Summary: Mr X and his legal representative Mr Z complained the Council wrongly decided Mr X’s mother, Mrs Y, deprived herself of assets for the purpose of reducing her care fees. The Council considered the circumstances of Mrs X’s case in line with the Care and Support Statutory Guidance without fault.

The complaint

1. Mr X and his representative Mr Z complained the Council wrongly decided Mr X’s mother, Mrs Y, deprived herself of assets for the purpose of reducing her care fees. They said this has caused the family distress and may mean the loss of the family home which they believe Mr X should not have to sell.

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The Ombudsman’s role and powers

2. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
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 considered evidence provided by Mr X, Mr Z and the Council as well as relevant law, policy and guidance.
6. Mr X, Mr Z and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant Law and guidance

Paying for care

7. 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.
8. When a council arranges a person’s care 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. If a person has capital over £23,250, they must pay full price for their care.
9. When a person’s house is their main or only home its value is not included in the person’s financial assessment. However, if the person moves into a residential placement, their house is normally included in their financial assessment because it is no longer their main or only home.

Deprivation of assets

10. When undertaking or reviewing a financial assessment a council may identify circumstances that suggest that a person may have deliberately deprived themselves of assets. Deprivation of assets means a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care.
11. The Care and Support Statutory Guidance says “there may be many reasons for a person depriving themselves of an asset. A council should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
• 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? [the First Test]
• did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?” [the Second Test]
12. If a council decides a person has deprived themselves of a capital asset to avoid care charges, it treats the asset as if it still belongs to the person receiving care. This is called ‘notional capital’.

Attendance allowance

13. Attendance allowance in a non-means tested benefit for people over state pension age who have a physical or mental disability severe enough to need help with personal care or supervision. It is intended to help people remain independent in their homes for longer.

What happened

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. In March 2019 Mrs Y was diagnosed with heart failure.
16. Mrs Y transferred the ownership of her home into a Trust in February 2021.
17. Mrs Y became a permanent resident of a care home in 2023. She was classed as a self-funder due to owning assets over the funding threshold, excluding property, at the time she went into residential care.

The first Council decision

18. The Council sent a financial assessment decision to Mrs Y in February 2024.
19. The letter included consideration of the factors set out in the Care and Support Statutory Guidance. In relation to the First Test, the Council considered that:
• Mrs Y was diagnosed with heart failure in March 2019 and was therefore not fit and healthy at the time of the Trust being created.
20. Considering the Second Test, the Council took into account that:
• At the time the Trust was created, Mrs Y and her son Mr X were aware of the need to contribute/ pay towards the cost of care as Mrs Y’s late husband had received a package of care arranged by Adult Social Care.
21. The Council acknowledged Mrs Y’s reason was to allow Mr X to inherit the family home without having to apply for probate, however decided the significant motivation for Mrs Y placing the property in Trust was deliberate to avoid paying for care fees in the future.

The second Council decision

22. Mrs Y, represented by Mr X and Mr Z appealed the decision in June 2024, saying that:
• Mrs Y’s motivation in creating the Trust was to ensure that Mr X could inherit the family home and avoid difficulties in administration, experienced after Mrs Y’s husband’s death.
• Mrs Y’s heart failure was being treated and managed by her doctor and local hospital for 14 months when the Trust was created with no worsening of the condition over that period.
23. The Council’s Decision-Making Panel considered Mrs Y’s case in July 2024 and wrote to Mrs Y with its decision.
24. The Panel decided, in relation to the First Test, that:

Mrs Y had been diagnosed with heart failure in March 2019 and contrary to the statement regarding its management, Mrs Y had been receiving attendance allowance since October 2020. It said to be awarded attendance allowance Mrs Y would have needed to submit evidence alongside details of the health condition or disability she required extra help for.

25. It said care and support could be provided informally by a friend or family member before more formal care became apparent. It concluded therefore, Mrs Y did have a reasonable expectation of needing care and support at the time the Trust was set up.
26. The factors considered by the Panel in relation to the Second Test were substantively the same as those set out in the original financial assessment decision.
27. The Panel noted Mrs Y’s stated motivation for creating the Trust but decided that alongside the information regarding attendance allowance and the timing the Trust was established, the significant motivator for Mrs Y creating the Trust was to avoid paying for care and support. It upheld the decision for Mrs Y to pay for her care. It advised of its third stage of appeal process.
28. Mr X and Mr Z disagreed with the Council’s decision relating to Mrs Y complaint and asked the Ombudsman to investigate.

Findings

29. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
30. In this case, the Council reached its conclusion by considering the circumstances of the case in line with the Care and Support Statutory Guidance. It considered the timing and motivation behind the creation of the Trust, whether Mrs Y had a reasonable expectation of needing ongoing care and support, and whether she would have expected to contribute towards the cost of that care. It also reviewed the decision when asked to do so by Mr X and Mr Z. This was evidence of good administration and therefore there is no evidence of fault.

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Decision

31. I find no fault by the Council.

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Investigator's decision on behalf of the Ombudsman