The Ombudsman's final decision:
Summary: Mrs B complains that the Council wrongly decided her late husband gave money to family members to avoid paying care charges. The Council considers Mr B deliberately and intentionally deprived himself of assets to avoid paying care charges. But it accepts its response to Mrs B’s complaint contradicts this position. It has therefore agreed to write off the outstanding debt. The Ombudsman considers this represents a satisfactory settlement and has therefore discontinued the investigation.
- Mrs B complains that the Council has wrongly decided her late husband had given money to family members to avoid paying care charges. She says the Council should not take this money into account when assessing his contribution towards his care fees.
The Ombudsman’s role and powers
- 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)
- We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
How I considered this complaint
- I have considered all the information provided by Mrs B, made enquiries of the Council and considered its response.
What I found
- Councils can make charges for care and support services they provide or arrange. They must assess a person’s finances to decide what contribution he or she should make to their care charges. They should 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 their care.
- The Care and Support Guidance 2014 explains how councils should assess a person’s financial contribution. It says:
- People with care and support needs are free to spend their income and assets as they see fit, including making gifts to family and friends. This is important for promoting their well-being 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;
- 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 Council 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 that person;
- 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 also have expected to have to make contributions towards his or her care charges.
- Mr B was receiving support from the Council’s adult social care department since 2006. Financial assessments were carried out and Mr B paid a contribution towards the cost of his care.
- In 2011 Mr and Mrs B told the financial assessment team they had re-mortgaged their property to purchase another property which they rented to their granddaughter. The amount Mr B was required to pay towards the cost of his care did not change because the mortgage was higher than the rental income for the second property.
- In October 2017 the Council became aware that Mr and Mrs B had sold the second property to their granddaughter for £75,000. The Council advised Mr and Mrs B that they would have to pay the full cost of Mr B’s care because he was now deemed to have capital over the threshold of £23,250.
- Mr and Mrs B explained that the capital received from the sale of the property had been split between their grandchildren.
- The Council stated that, if it had been aware of the sale of the property, it would have advised Mr and Mrs B that the proceeds would be included in Mr B’s financial assessment and would affect his contribution towards his care costs.
- In February 2018 Mr B was admitted to a nursing home. In March 2018 the Council wrote to Mr and Mrs B explaining that the proceeds from the sale of their second property would be treated as notional capital and that the decision to charge them for the full cost of Mr B’s care made in October 2017 would not change. As a result, Mrs B removed her husband from the nursing home because she could not afford to pay the costs. She paid for private care in her own home until Mr B died in June 2018.
- Mrs B did not formally appeal against the Council’s decision to treat the sale proceeds as notional capital but she did submit a formal complaint.
- The adult social care service manager, Officer X, responded to her complaint stating, “I understand that it was your intention to use the investment returns to provide large lump sums to your grandchildren and that this was well-intentioned. While I trust that you did not make gifts with the intention of avoiding paying for your care, the final outcome is that you have not paid the contributions that you should have”. He went on to say, “Whilst there is no suggestion that you sought to reduce the amount you need to pay towards the cost of care by deliberately giving away your capital, this is clearly a resource that should have been retained to meet ongoing care needs. As such, in accordance with the Care Act 2014 and statutory guidance, this is determined to be a deprivation of capital by the Council”. He confirmed there was an outstanding balance of £4838.14 owing to the Council.
- Mrs B complained to the Ombudsman.
- In response to my enquiries, the Council stated its view is that Mr B deliberately and intentionally deprived himself of assets to avoid paying care charges. But it accepts that Officer X’s response to Mrs B’s complaint contradicts this position. Because of this discrepancy, the Council has agreed to write off the outstanding debt and apologise to Mrs B for its contradictory response to her complaint.
- I consider the Council’s proposed actions represent a satisfactory settlement of Mrs B’s complaint. Accordingly, I will not pursue the complaint further.
- I have discontinued my investigation because the Council has proposed a satisfactory settlement of Mrs B’s complaint.
Investigator's decision on behalf of the Ombudsman