The Ombudsman's final decision:
Summary: Mr X and his adult son complain that the Council has wrongly decided that Mr X gave away savings to avoid paying care fees. There was no fault in how the Council made its decision: it took all the relevant factors into account and followed the law, government guidance and its own policy.
- Mr X complains that the Council wrongly decided that he had given money to family members to avoid paying care charges. He says the Council should not take this money into account when assessing what contribution he should pay to his care fees. Mr X is represented by his adult son, Mr C.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I have considered the information submitted by Mr C and discussed the complaint with him. I have considered the Council’s response to my enquiries, its file documents and correspondence with Mr X and other family members. I have considered the law and the Council’s policy. Both parties have had an opportunity to comment on a draft of this statement, and I have taken the comments into account before reaching my final decision.
What I found
- Councils can make charges for care and support services they provide or arrange. Councils must assess a person’s finances to decide what contribution he or she should make to care charges. The Council can take a person’s capital and savings into account subject to certain conditions. If a person’s capital is over £23,250 he or she will be liable to meet the full cost of the care charges.
- The government has issued the Care and Support Statutory Guidance 2014 (the Guidance). This includes guidance about how councils should assess a person’s financial contribution. This says:
- People with care and support needs are free to spend their income and assets as they see fit, including making gifts to friends and family. This is important for promoting their wellbeing and enabling them to live fulfilling and independent lives. However, it is also important that people pay their fair contribution towards their care and support costs. (chapter 8.27)
- There are some cases where a person may have tried to deliberately avoid paying for care and support costs through depriving themselves of assets – either capital or income. In such cases, the local authority may either charge the person as if they still possessed the asset or, if the asset has been transferred to someone else, seek to recover the lost income from charges from that person. (chapter 8.28)
- The person must have known they needed care and support. Avoiding charges must have been a significant motivation in the timing of the disposal of the asset. The person must have also expected to have to make contributions to his or her care charges.
- It will not automatically assume deprivation of assets has happened where someone no longer has the asset as there may be valid reasons for this.
- It will ensure that reasons are fully explored before making a decision.
- It will consider whether avoiding care charges was a significant motivation in the timing of the asset disposal; whether the person had a reasonable expectation he would need care and that he would need to contribute to this.
- The person can appeal. If the person is unhappy with the outcome of the appeal they can take the matter to the Ombudsman.
- Mr X lived with his wife until she passed away in 2014. He received short term care in November 2010, September 2011, February 2012 and March 2013. This type of care is provided free of charge. The Council’s file notes say that during this time it noted that Mr and Mrs X’s capital was above the threshold of £23,250. The couple have an adult son and an adult daughter.
- The Council’s file notes record its contact with Mr and Mrs X.
- In December 2012, Mr X was not managing but did not want to pay for a long-term care package as he did not want to pay for care. He would only accept short term ‘reablement care’ as this is free.
- In March 2012, Mr X was admitted to hospital. The notes say that Mrs X has ‘confusion/ dementia’ and that Mr X’s expectations of how much care she can give him are too high.
- In June 2012, the Council recommended to their daughter that Mr and Mrs X accept more care. The case notes show that other agencies involved with the Mr and Mrs X had also contacted the Council to say the couple were not managing. One case note says that the Council telephoned Mr X who asked for an assessment as soon as possible as he could no longer monitor his wife’s behaviour such as leaving the gas on. This note says Mr X was prepared to pay for more care. However, a case note in early August 2012 says that he is reluctant to spend money on care and would only accept a cleaner, which they paid for.
- In October 2012, Mr X was in hospital again. The Council did not provide reablement care as Mr X had already had some that year.
- In March 2013, Mr X had injured his back and neck and had limited mobility. The Council provided short term reablement care.
- In late June and early July 2013, Mr X was readmitted to hospital. The Council contacted him again and two case notes from this period say that Mr X realises that he is over the capital limit of £23,250 and he understands he will have to fund care himself.
- In October 2013 Mr X had some further reablement care but would not agree to an ongoing care package as he realised he would have to pay for this himself. Later that month, the file says Mr X fell from his stair lift head first but refused to be admitted to hospital. He then said he did not mind paying for care but did not need it as he was ‘sufficiently independent’.
- In November 2013, paramedics attended Mrs X at home. She did not want to be admitted to hospital as she felt she could not leave Mr X. Their daughter requested further reablement, but the Council said that Mr X needed long term care. The file says Mr X agreed to increase daily care visits. Mr and Mrs X had already arranged a meal delivery service which they paid for.
- Towards the end of November, Mrs X was admitted to hospital. By the beginning of January, Mr X had arranged for care twice daily and was funding this himself as his capital was above the threshold.
- Mr X transferred £50,000 to his daughter. He said he did so because this was his late wife’s money and she had wanted her daughter to have it.
- Mr X had already received several periods of short term free care having had a long history of falls. Mr X refused long term care based on the cost of this. The family had requested further free care, but the Council refused as a long-term care package was required.
- The Council had discussed financial costs of care with Mr X and his family on several occasions since 2010, and it has been clear throughout that Mr X’s savings meant that he would have to meet the cost of his care.
- Mr X made the gifts after a long history of falls. He knew he had care needs and that these would continue when he gave the money to his family and so the Council was satisfied that he did so to reduce his care fees.
- Mrs X’s will did not make any specific bequests of money, but Mr X said he had not wanted her money and he had not given any thought to future care costs.
- Mr X’s need for care was clearly established when he gave the majority of his money away.
- There is no new information and so it would not alter its decision.
Was there fault by the Council causing injustice to Mr X and his family?
- It is for the Council to make decisions about care costs. It is not for the Ombudsman to decide whether Mr X gave money away to deliberately to avoid paying care costs. The Ombudsman’s task is to make sure that the Council has given all the factors due consideration and made a decision based on these and in accordance with the law, guidance and policy.
- The Council had to consider whether avoiding care costs were significant motivation for Mr X to give money to his son and daughter, and whether he had a reasonable expectation that he would need care. The Council has considered both tests and satisfied itself that Mr X had given money away in order to avoid paying for care.
- I realise that Mr X and his family find the Council’s decision harsh. They point to the fact that Mr X was already paying for care, and that the gifts were made some time before his care costs increased. However, the fact that Mr X was paying for care before he made the gifts does not mean that he would not give money away in order to avoid paying increased costs. Mr X made the gifts after he was widowed, and given that his late wife was his carer, it would be reasonable to assume that his care needs would increase following her death.
- I have taken into account that Mr C says that the money he received was largely the money he contributed to the household income and that it was paid to him as an out of court settlement. But the Council can only base its decision on the evidence it has. The payments Mr C made and then the settlement he received were both informal. I appreciate that both these reasons put forward are very sensitive and given Mr C’s claim that he was manipulated by his parents, there is unlikely to be any formal evidence of Mr X’s intentions. However, Mr X has told the Council these were gifts. He made similar gifts to the adult daughter, and the Council had to take into account that Mr X has given no indication that the money Mr C paid to his parents would be gifted back to him or that Mr X paid his son as compensation for mistreatment.
- It is open to the Council to make a decision provided that it has taken into account all the relevant factors, followed the law, guidance and its own policy and can explain its decision. The Council has listed its reasons and shown that it took these into consideration in making the decision. It based its decision on significant contact with Mr and Mrs X over a long period in which they demonstrated that they understand the capital limits, that Mr X’s care needs were increasing and that they had refused necessary care on the basis of cost. The Council has followed the law, guidance and its own policy and there is no clear flaw in how its decision-making process.
- I have completed my investigation on the basis that there was no fault by the Council.
Investigator's decision on behalf of the Ombudsman