The Ombudsman's final decision:
Summary: There was no fault in the way the Council decided to include the value of Mr X’s property in his financial assessment.
- The complainant (whom I shall call Mrs A) complains about the Council’s decision to take into account the value of the late Mr X’s property as “notional capital” in calculating his care home charges, and its failure to tell the family sooner that Mr X’s care would not be fully funded.
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. 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 considered all the information provided by the Council and by Mrs A. Both the Council and Mrs A had an opportunity to comment on an earlier version of this statement, and I took their views into account before I reached a final decision.
What I found
- The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
- The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
- The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
- Annex E to the Care and Support Statutory Guidance 2014 says:
“When undertaking or reviewing a financial assessment a local authority may identify circumstances that suggest that a person may have deliberately deprived themselves of assets in order to reduce the level of the contribution towards the cost of their care. Deprivation of assets means where a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care. This means that they must have known that they needed care and support and have reduced their assets in order to reduce the contribution they are asked to make towards the cost of that care and support.”
- The guidance goes on, “A local authority should consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
(a) 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?
(b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?”
It adds, “Where the person has transferred the asset to a third party to avoid the charge, the third party is liable to pay the local authority the difference between what it would have charged and did charge the person receiving care.”
- The late Mr X lived in his own home with his grandson Mr Z (Mrs A’s brother), who frequently works away from home. Mr X had a package of care arranged by the Council to support him with his personal care, washing and dressing, and preparing meals. In September 2017, after Mr X had a further hospital admission after a fall, Mr Z told the Council that he was struggling to cope with looking after Mr X. The number of care calls was increased to six a day.
- In October 2017 Mr X transferred the ownership of his home to Mr Z. He sought legal advice at the time.
- Mr X was admitted to hospital again in November and December 2017. The Council’s records show that after the December admission, Mr Z contacted the Council to ask about care home options. The case recording shows that when Mr Z talked to the social worker about an assessment for residential care, the social worker noted “(Mr X) lives with (Mr Z) in (Mr Z)’s home”. She recorded that when discussing Mr X’s capacity to make decisions, Mr Z said “He’s got all his marbles”.
- Mr X was moved into a “discharge to assess” unit at the hospital. The unit manager wrote to Mr Z on 5 January saying Mr X could stay with them for up to six weeks. She said a meeting would be arranged to discuss his future care.
- The Council undertook an assessment in January 2019 and concluded Mr X needed 24-hour residential care. The assessment recorded Mr X had “no property –was living with grandson in grandson’s home” and noted, “financial implications of moving into a care home have been explained to (Mr X) and (Mr Z)…Third party top-ups/deferred payments have been explained”.
- Mr Z visited two local care homes. In a telephone conversation with the assessing social worker, he said he did not have the money to pay a third party top-up and Mr X had no property or assets. The social worker said she would submit the relevant funding application and notify him of the outcome.
- The Council wrote to Mr Z on 11 January to arrange a financial assessment visit. The visit was made on 17 January but Mr Z was not at home. Mr Z asked the Council to send him the forms to complete.
- On 23 January Mr X moved into a care home. The Council’s Adult Social Care department agreed to pay the whole cost of his placement.
- Mr Z returned the financial assessment forms to the Council at the end of January. The Council issued an invoice for full cost of the placement in February and wrote to Mr Z in March confirming there would be a full cost and requesting the details of the transfer of Mr X’s property.
- In March the Council undertook a first review of Mr X’s placement in the home. The records note that a social worker spoke to Mr Z and recorded “(Mr Z) has no issues with the placement at all and wishes it to continue”. She also noted Mr Z was challenging the Council’s assessment that Mr X should pay the full care costs.
- At a second review in June, the social worker explained to Mr X that his family was looking for his return home, with support. Mr X said he wanted to stay in the care home.
- Mr X died in July.
- Mr Z and Mrs A appealed against the Council’s decision that Mr X had assets above the upper capital limit because of the value of the property he had transferred to Mr Z in October 2017.
- The Council wrote to Mr Z in July. It said Mr X had received care and support from the Council since 2013 and could reasonably expect to need increased care. It said he was aware of care charges and had recently (in September 2017) been given copies of the Council’s leaflets about charging. It also noted that Mr X had taken legal advice at the time of the transfer of the deeds of the property and it referred to the Law Society’s advice requiring solicitors to give advice on the implications of transferring property. Taking into account all the information it had available, the Council said the financial assessment would include notional capital above the upper limit and it would charge the full cost of care.
- Mrs A complained to the Ombudsman. She said the family had been told that Mr X would receive six weeks’ free care and there would be a meeting to discuss other options. She complained about the delay in receiving the outcome of the financial assessment. She said the Council moved Mr X to the care home without his consent or that of his family and at the time of his death, the family was trying to bring him home as he was becoming increasingly agitated.
- The Council says although the completed financial assessment forms were received back in the Council on 31 January, there was a backlog of assessments due to the implementation of new systems. It says however that an invoice for the full cost was issued on 12 February pending the completion of a full financial assessment.
- The Council also says that a meeting was held to discuss Mr X’s care options before he left the hospital “discharge to assess” unit and Mr Z attended the meeting.
- There is no evidence the Council told Mr X’s family he would receive six weeks’ free care. The period of up to six weeks was available to him in the “discharge to assess” unit which was part of the hospital and not part of the residential care system.
- The assessment which was undertaken before Mr X left hospital did not record any doubts about his capacity to make his own decisions about his care: had it done so the Council would have undertaken an assessment of his mental capacity.
- The Council agreed to fund the whole cost of Mr X’s placement before the financial assessment as Mr Z said he did not have the funds to pay a top-up fee and Mr X had no assets.
- The Council sought to carry out the financial assessment before Mr X moved into the care home but Mr Z was not available at the appointment. An invoice was issued within 14 days of the receipt of the completed assessment.
- The Council acted in accordance with the statutory guidance in the way it considered whether there had been a deprivation of assets. There was no fault there.
- There was no fault on the part of the Council.
Investigator's decision on behalf of the Ombudsman