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East Sussex County Council (17 010 772)

Category : Adult care services > Charging

Decision : Not upheld

Decision date : 29 Mar 2018

The Ombudsman's final decision:

Summary: Mr X says the Council is at fault in how it has calculated his contribution towards his mother’s care costs. The Ombudsman has found no evidence of fault in how the Council has considered this matter. For this reason he has ended his investigation of this complaint.

The complaint

  1. Mr X, who complains on behalf of his mother Mrs Y, says the Council is wrongly including the proceeds from the sale of her home when calculating the contribution towards her care costs.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’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

  1. As part of my investigation I considered Mr X’s complaint. I made enquiries of the Council and I considered its response and documents its provided. I set out my initial thoughts on the complaint in a draft decision statement and I considered Mr X’s comments in response.

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What I found

  1. A council may consider a resident has deliberately deprived themselves of an asset in order to reduce the charges they are asked to pay. The council should consider whether deprivation has occurred, what its purpose was, and the timing of that deprivation. Having considered the facts’ the council may decide to treat the resident as still owning that asset. This is sometimes referred to as ‘notional capital’.

Key events

  1. Prior to March 2007 Mrs Y lived in Property A which she purchased in 2005 for £110,000. Mr X says he lent Mrs Y £40,000 to purchase the property. The property was registered in Mrs Y’s name only.
  2. In May 2007 Mrs Y brought Property B for £118,000. The title deeds show the property was registered in Mrs Y’s name only.
  3. Mrs Y lived with Mr X and his partner at their home from 2010. I understand from care notes that she occupied rooms on the top floor of the property.
  4. In September 2011 Property B was sold with proceeds of around £78,500. Mr X told the Council during a financial assessment in 2012 that the proceeds had been transferred to him as repayment for the money he lent Mrs Y. The same financial assessment found that Mrs Y had just over £800 in her three bank accounts.
  5. In 2013 Mr X carried out works to replace a conservatory at his home. He says the works were to remedy damage caused by Mrs Y and to provide her with a downstairs toilet. The works cost around £20,000.
  6. Mrs Y moved into a care home in late 2013, shortly after the above works were completed.
  7. The Council carried out a financial assessment for Mrs Y in 2014 to see if she was eligible for financial assistance towards the cost of her care. Mr X told the Council about the above financial matters. He also explained that Mrs Y owed around £4600 on credit cards and paid £103.34 per month in loan repayments. He said only £15,000 remained from the sale of Property B.
  8. However the Council questioned where the remaining proceeds of Property B had gone. It asked Mr X to provide evidence he had lent Mrs Y £40,000 and for the debts he said she owed.
  9. Mr X said he no longer had any documentation regarding either matter. The Council therefore concluded that Mrs Y should still have assets to pay for her care. For this reason it would not fund her care until these assets had depleted which was anticipated to be in summer 2022.
  10. In May 2016 Mr X made another request for financial assistance for Mrs Y. This assessment concluded that Mrs Y would remain self-funding until 2021.
  11. In 2017 Mr X told the Council that neither he nor Mrs Y had the funds to continue paying her care home fees and that the care home had given her notice.
  12. The Council explained that it considered there was notional capital of £78,500 from the sale of Property B. It set out that it was aware that Mrs Y had spent £2121.40 on credit card payments and that Mr X had made payments of £21,102.31 towards her care. For this reason it reduced the amount of notional capital to £50,279.79. The Council said it would further reduce this by £23,250 as this was the maximum amount a person can have before they need to contribute to their care costs. Mr X would be invoiced weekly for the remaining £27,029.(as he had received the proceeds from the sale of Mrs Y’s home) for Mrs Y’s care.
  13. Mr X remains unhappy with the Council’s determination of this matter. He says he cannot afford the payments the Council is asking for and he is feeling very depressed and stressed as a result.


  1. It is not for the Ombudsman to substitute his judgement for that of the Council’s officers. Instead he examines the process leading to the Council’s decisions for evidence of fault.
  2. Mr X says the Council was wrong to take into account the proceeds from the sale of Mrs Y’s home when calculating her contribution towards her care. I do not agree. Mr X has not provided any evidence to substantiate that he lent Mrs Y £40,000 to help purchase Property A and that this was repaid to him after she sold Property B. The Council needs evidence of the loan before it can discount it when determining the contribution Mrs Y should make towards her care. I cannot find it at fault for including the proceeds of the sale of her property when calculating Mrs Y’s contribution in the absence of any evidence from Mr X.
  3. Furthermore both Property A and B were registered in Mrs Y’s name alone. This suggests that Mr X did not have an interest in either property and so supports the Council’s view on this matter.
  4. I understand that Mr X says that some of the proceeds from the sale of Mrs Y’s home went towards works for the conservatory which were necessary as a result of damage caused by his mother. However Mr X had not provided any evidence supporting this argument to the Council. Moreover, as set out by the Council Mrs Y did not have funds in her bank accounts at this time to pay for the works and moved out shortly after their completion. On this basis I cannot conclude the Council was wrong not to deduct the cost of these works from the amount of notional capital. The Council must make decisions based on the evidence before it. The evidence it has supports its decision.
  5. I note the Council has reduced the amount of notional capital by £23,233.71 in respect of debts owed by Mrs Y and the costs incurred by Mr X in funding Mrs Y’s care prior to her move to her current home. The Council should have taken these costs into account. I am also aware the Council has removed £23,230 in respect of the upper capital limit set by the government. I am satisfied the Council has deducted the money it should have from the amount of notional capital arising from the sale of Mrs Y’s home.
  6. The Council says it will invoice Mr X for the remaining amount of the proceeds of the sale of Property B. Mr X says this wrong. I have already explained that the Council can only make a decision based on the evidence it has. Mr X has not provided any evidence relating to the loan. As part of the financial assessment carried out in 2012 Mr X told the Council he had received the proceeds from the sale of Mrs Y’s home. Where the Council cannot account for how a person receiving care has disposed of their assets, it can seek to reclaim the amount of capital unaccounted for. As Mr X has not been able to substantiate how the remaining £27, 029.79 was disposed of, I do not consider the Council’s decision to reclaim this from Mr X to be fault.
  7. Lastly I note that Mr X says the Council has not taken into account the cost of Mrs Y living with him when calculating the notional capital. Mr X has not provided any evidence to the Council that there was a tenancy agreement between him and Mrs Y during this period or invoices for costs associated with other aspects of her care during this time. As set out earlier I cannot expect the Council to make deductions for costs for which there is no evidence.

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Final decision

  1. I have ended my investigation of this complaint as I have found no evidence of fault by the Council.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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