West Berkshire Council (18 008 120)

Category : Adult care services > Charging

Decision : Not upheld

Decision date : 11 Mar 2019

The Ombudsman's final decision:

Summary: Miss X says the Council is at fault in how it has calculated the amount her father should contribute towards the cost of his care. This is because it has included the value of her father’s home despite him transferring ownership of it to her and her sister. The Ombudsman has found no evidence of fault by the Council and so he has ended his investigation of this complaint.

The complaint

  1. Miss X (who is complaining on behalf of her father, Mr X) says the Council has failed to calculate his contribution towards his care costs correctly. In particular she says the Council has:
  • varied the amount he is charged for his care without explaining why the charge has altered;
  • charged him for care he has not received; and
  • incorrectly calculated his contribution towards his care costs because it says he has intentionally deprived himself of assets to avoid his care costs and for this reason it has included those assets in it is financial assessment.

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What I have investigated

  1. I have investigated Miss X’s concerns regarding the Council’s decision that Mr X has deprived himself of assets. I have not considered Miss X’s concerns regarding the charges her father is incurring for his care at his current placement and the latter parts of my statement explaining my reasons for not doing so.

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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. I discussed the complaint with Miss X and considered information she provided. I made enquiries of the Council and considered its response. I set out my initial views on the complaint in a draft decision statement and invited Miss X and the Council to comment.

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What I found

  1. The Care Act 2014 and the associated Care and Support Statutory Guidance (“the guidance”) set out the rules the Council must follow when assessing how much a person has to pay towards the costs of their residential care.
  2. The law states the people who have over the upper capital limit (currently £23,250) are expected to pay the full costs of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.

Deprivation of capital

  1. Annexe E of the guidance covers issues relating to the deprivation of capital. The guidance states the following:
  • when undertaking or reviewing a financial assessment, a local authority may identify circumstances that suggest a person may have deliberately deprived themselves of assets to reduce the level of contribution towards the cost of their care;
  • people should be treated with dignity and respect and be able to spend the money they have saved as they wish-it is their money after all. Whilst the Care Act 2014 represents an important step forward in redefining the partnership between the State and the individual, it is important people contribute to the care costs they are responsible for. This is important to the overall affordability of the care and support system. A local authority should therefore ensure people are not rewarded for trying to avoid paying their assessed contribution;
  • deprivation should not be automatically assumed. There may be valid reasons why someone no longer has an asset and a local authority should ensure it filly explores this first; and
  • deprivation of assets means a person has intentionally deprived or decreased their overall assets 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 to reduce the contribution they will be asked to make towards the cost.

Background

  1. In 2008 Mr X had a bleed on the brain and subsequently had care needs which the Council meet. Mr X was asked to make a small financial contribution towards the cost of his care, following a financial assessment. Mr X continued to live in his own first floor flat and was also supported by his daughters, including Miss X.
  2. By 2010 Mr X was having problems accessing his first floor flat and so he moved to a ground floor flat. Miss X says Mr X discussed making his daughters beneficial owners of his new home but the property was not legally transferred to them.
  3. Miss X says that she and sister continued to assist Mr X during this period, including financially. Mr X continued to receive care from the Council and to pay a small contribution towards the cost of his care.
  4. In January 2017 Miss X says a declaration of trust was completed. Miss X says the declaration was discussed with solicitors two years previously but not actioned owing to family members being busy and dealing with ill health.
  5. I understand Mr X was having difficulty having his care needs met at home. For this reason, he was placed on the waiting list for Extra Care Housing (ECH). This is housing provided by the Council for people with social care needs.
  6. The Council sought information regarding Mr X’s finances so that it could carry out a financial assessment for him prior to him being offered a ECH place. As part of these enquiries it sought information about the ownership of Mr X’s flat.
  7. In November, the Council wrote to Miss X’s sister explaining that if he moved into ECH the value of his flat would be included when calculating his contribution towards the cost of his care. It said that, although Miss X and her sister had paid for some improvements to the property, the transfer of it from Mr X to his daughters was deprivation. This was because Mr X had been receiving care since 2008 and therefore had a reasonable expectation that he would continue to need care and to contribute towards the cost.
  8. The same letter also confirmed that while he remained living in his flat Mr X would contribute £37.30 per week towards the cost of his care.
  9. Mr X moved into ECH in December. The Council wrote to him confirming that he would be charged the full cost of his care and the value of his home had been considered when making this decision.
  10. In March 2018 Miss X asked the Council why Mr X was being charged the full amount for his care. It reiterated its earlier comments and sent her a copy of its November letter.
  11. Unhappy Miss X submitted an appeal to the Council challenging its decision that Mr X had deprived himself of assets.
  12. The Council considered the appeal but it did not alter its decision.
  13. Miss X approached us because she remains unhappy She says the Council’s decision means Mr X may have to leave ECH and return home even though his care needs are better addressed in ECH.

Analysis

  1. The financial assessment carried out by the Council when it learnt Mr X was on the ECH waiting list identified he had given his home to his two daughters. I consider it was reasonable for the Council to consider whether this amounted to a deliberate attempt to avoid care charges.
  2. Information from Miss X’s sister showed the Mr X’s home was transferred to her and Miss X in January 2017. While I note that Miss X says it was the family’s intention to transfer ownership of the property earlier, no evidence has been provided of this.
  3. It was reasonable for the Council to consider Mr X would expect to continue to need care and to contribute towards this. In the absence of any information suggesting otherwise I do not consider there are grounds to question the merits of the Council’s view on this matter.
  4. Miss X says the Council did not inform her or her sister that Mr X would be expected to make a full contribution towards his care costs until after he had moved into ECH. I do not agree. The Council has provided information demonstrating that it discussed this matter with Miss X’s sister and made a decision on the issue of deprivation before to Mr X moved.

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Final decision

  1. I have ended my investigation of this complaint because I have not found any evidence of fault by the Council in the matters I have investigated.

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Parts of the complaint that I did not investigate

  1. Miss X has raised concerns about the charges Mr X is incurring at his ECH. She says the charges have fluctuated and that he is being charged for care he has not received. We must allow the Council the opportunity to address a complaint before we consider it. Miss X should raise this matter with the Council through its complaints procedure. If she remains dissatisfied once she has completed this process she can approach us for assistance.

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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