Summary: Mr X says his mother’s estate should not have to pay for his late mother’s care. The Council says Mr X and/or his mother should not have spent money that should have been used for her care. It seeks to recover that money. We do not find the Council at fault.

The complaint

1. Mr X complains that the Council has wrongly decided that his mother’s estate owes the Council over £11,000 for unpaid care fees.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke with Mr X. I reviewed the Council’s response to our enquiries and researched the relevant law and guidance. I made further enquiries and both the complainant, and the Council have had the opportunity to comment on the draft decision. I have made some amendments to reflect consideration of their observations.

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What I found

Relevant law

5. Regulations and statutory guidance to the Care Act 2014 set out the rules councils must follow when assessing how much a person should pay towards their care fees:

• If a person has assets of over £23, 250 or more, including property they are not entitled to financial support. (Paragraph 8.20)

• Those to whom the charging regime applies may make gifts to friends and family. But if the council decides someone has deliberately gifted property to avoid care costs, the council may charge the person as if they still possessed the asset. (Paragraph 8.27)
• Deprivation of assets is where a person intentionally decreases their assets in order to reduce the amount the council charges them for care. They must have known they needed care and support and have reduced their assets in order to reduce their contribution. (Annex A, Point 6)
• A person can deprive themselves of assets in many ways such as a gift, or by transferring property into a trust that cannot be revoked. (Annex A, Point 9)
• A person can deprive themselves of capital in many ways, but common approaches may be: (a) a lump-sum payment to someone else, for example as a gift; (b) substantial expenditure has been incurred suddenly and is out of character with previous spending.
• When deciding whether there has been a deprivation of assets, the council must consider:
1. Was avoiding care charges a significant motivation?
2. The timing of the disposal of the asset: at the point of disposal could the person have a reasonable expectation of the need for care and support?
3. Did the person reasonably expect to need to contribute towards the cost of their care?
4. If the disposal occurred when the person was fit and healthy, it would be unreasonable to find there had been a deprivation.

6. Applicable from April 2015, The Care Act 2014, Care and Support statutory guidance annex E 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 that a person may have deliberately deprived themselves of assets to reduce the level of the contribution towards the cost of their care.
• A local authority should ensure that people are not rewarded for trying to avoid paying their assessed contribution.
• But 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 fully explores this first.

7. Paragraph 8.27 of the Care and support statutory guidance states “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”.

What happened

8. The records show Mrs X’s mobility had started to deteriorate in July 2014. In September 2014 she started to receive homecare. In October 2015 she began to receive full time domiciliary care.
9. She was, at this point, fully self-funding. Mr X confirmed with the Council that she was over the threshold to contribute to her care.
10. In June 2015 she self-funded a place at a care home.
11. In September 2015 the Council assessed it should make a contribution to her care costs. Her capital at this point was £23,232.45.
12. Mrs X’s care costs were paid by Continuing Healthcare (CHC) for a period. The Outcome Referral form says this occurred from 15 July 2016 to 4 December 2017.
13. The Council says Mrs and Mr X would have been made aware by CHC, that funding might change upon review. Mr X says the family could not have known that they would later be asked to pay for her care.
14. On 21 October 2017 the CHC reviewed Mrs X’s case and said she was no longer eligible for funding. The Council says the letter from the CHC informed Mr X funding would stop on 4 December 2017.
15. As Mrs X now needed financial support from the Council, the Council assessed what her contribution to her care should be. Mr X completed a financial assessment form in November 2017.
16. The Council says that because Mrs X did not have to make any contribution towards her care during this period, she would have accrued £22,418.04 from her income and benefits.
17. But in December 2017, Mrs X’s assets had reduced to just over £9000.
18. In March 2018 the Council queried some of the information provided by Mr X in his mother’s financial assessment form. It asked him to explain why a number of withdrawals had been made from Mrs X’s account during a period when she was receiving care.
19. The Council referred to payments and withdrawals amounting to over £18,000 over an eighteen-month period.
20. Mr X responded to the Council in April 2018. He said his father had died shortly before the period in question. He said, before he died, he bought Mr X a more reliable car so he could carry on caring for Mrs X. Mr X said his father had said Mr X could use his money to run and maintain the car. Mr X said his family had always been very generous and it was his father’s wish that this, ‘should carry on after he had gone.’
21. The Council responded to Mr X in September 2018, shortly after Mrs X’s passing away in August 2018.
22. It said it had assessed that there had been a deprivation of assets of £19,372.82. It said it considered this was because of unreasonable expenditure and gifting while Mrs X had been in care.
23. It said Mrs X should have paid the full cost of her care for a period of 224 days. It arranged to send Mr X a revised bill.
24. Mr X contacted the Council. He disputed its findings. The Council responded again in late September 2018. It provided a breakdown of the expenses it considered were over and above what was allowable. It said, in summary, that they were made up of:

• Cash gifting
• Large items purchased and gifted
• Running and upkeep of a car that was not Mrs X’s car

25. It said it had given consideration to the responsibilities of a person acting with Lasting Power of Attorney and that consideration had been given to the Office of Public Guardians guide to gifting.
26. It said the gifts made were not of a reasonable value. It said they were therefore unlawful and constituted Mrs X depriving herself of assets or being deprived of assets.
27. The Council provided evidence of its consideration of the accounts Mr X had provided. It split its consideration of the expenses into three columns:

• Costs that should be covered by Mrs X’s personal allowance per week
• Potentially allowable expenses, and
• Expenses not usually allowable.

28. Beside the expenses considered not usually allowable, are sporadic notes showing why the Council, in a number of instances, queried those expenses.
29. Generally, it did not consider that petrol was an allowable expense. It noted that there were a number of taxi fares for Mrs X and queried why these would be necessary if Mr X was using his car with the purpose of caring for his mother.
30. It considered further that a number of other items were not allowable, including:

• a cooker for Mr X, who it seems is referred to as LPA (or local power of attorney)
• car maintenance and MOT for Mr X’s car
• bed for grandchild
• Vaccum cleaner for Mr X
• A family meal out
• Expenses at a pub
• Family picnic food
• Mobility scooter for Mr X’s wife
• Flooring for Mr X
• Cost for Mr X’s wife to visit her sick mother
• Tumble-dryer for Mr X
• A new car for Mr X

31. The accounts show that between June 2015 and April 2017, Mr X spent approximately £2500 on car maintenance. He then bought a new car at the cost of £2290.00. Mr X points out that Mrs X paid for the car and has provided evidence of this, although he is named as the purchaser.
32. Mr X spent over £1000 on car maintenance on that car. In total, he spent almost £6000 on cars and car maintenance, excluding petrol.
33. Mr X says he normally gave cash for car repairs so he does not have receipts. The Council said he did provide receipts and a written explanation for other withdrawals, which mainly included expenses such as toiletries, treats, petrol, clothes and food.
34. The Council did allow for a certain amount of gifting. It accepted that Mrs X would have wanted to provide birthday gifts to relatives. It allowed for money to be spent on an anniversary gift, on a birthday gift for Mr X’s wife and it allowed some Christmas gifts, among other things.
35. It says it did not make decision determined on one gift to a particular grandchild from any other but took decisions on the premise of what the Office of the Public Guardian to Gifting considers to be reasonable gifting.
36. It did not consider a gift of £1000 each to all her sons in November 2016 and again in April 2017 should be allowable.
37. Mr X responded in October 2018. He went through the Council’s calculations in detail, explaining that any money that had been spent was spent either to fulfil his father’s death-bed wishes or because his mother wanted to spend this money on her family. He said, “It was..mum’s money to do as she wanted with.”
38. There were a few payments that he accepted could be viewed as a deprivation of assets, such as the tumble-dryer and flooring, among others. He said there was a balance of £2462.48 that he would accept.
39. On 21 November 2018 the Council responded, apologising for the delay. It upheld its previous decision.
40. Mr X complained. The Council answered Mr X’s complaint in full on 12 December 2018.
41. It said that, as Mrs X’s income should have increased by £22,418.04 while her care was being paid for, it assessed that, putting aside the money she would have been expected to spend on her personal allowance, Mrs X should have had an income of £29, 915.47 in December 2017. It says she would also have continued to receive eligible benefits.
42. She would then have been able to pay for her care from December 2017 to August 2018. It therefore said Mr X should pay an invoice for that care.
43. Following receipt of my draft decision Mr X queried whether the Council had taken into account care fees that his mother had paid. The Council has provided evidence to show that these payments were considered as part of its calculations.
44. Mr X also said that the Council had incorrectly claimed that Mrs X was in receipt of an attendance allowance which increased her income. He said this stopped in January 2016. However, the Council has produced evidence to show that payments of the attendance allowance continued past that point.
45. Mr X also pointed out that he made a number of payments into his mother’s account during the relevant period. He queried how the Council could take the view that there was deprivation of assets when he was making payments to his mother’s account.
46. The Council says it did not have this information before. However, it says that the money Mr X paid into his mother’s account during the period represented 5.7% of the total sum of deprivation. It does not believe the sum Mr X to have paid in to be a significant sum when placed beside the larger deprivation. It has, however, said that it will deduct the sum Mr X paid from the deprivation figure.

Analysis

47. Mr X says neither he nor his mother had any intention to avoid paying for Mrs X’s care costs. He says that, as power of attorney for his mother, he only acted in accordance with his parents’ wishes.
48. However, the evidence shows that Mr X should have been aware that there was a possibility Mrs X would have to contribute to her care costs at some point in the future. She had had to contribute at one point, before health funding took over for over a year. During that period, Mrs X’s assets were reduced significantly, so that she was below the threshold for payment towards her care when the time came.
49. The Council did allow for some gifting but Mr X paid large sums of money to himself and his brothers. Two sets of these payments could not have been for birthdays or Christmas and they were double the payments made at Christmas to the brothers before Mrs X was fully funded.
50. The evidence also indicates a large amount of money spent on car maintenance and on a new car. While it may have been Mr X’s father’s dying wish that Mr X should continue to use a car to help his mother, there were also a number of taxi bills that do not support that the car was consistently utilised in that way. Mr X points out that his mother bought the car but that does not alter the fact that the Council took a reasonable view that this constituted deprivation of assets.
51. The Council has shown it thoroughly considered the information Mr X provided about how Mrs X’s money was spent. It considered that there was a large sum of unreasonable expenditure and gifting.
52. I have considered the extra information Mr X provided after my draft decision and I consider the Council’s response to be reasonable. It has accepted that Mr X made some payments to the account but as they are not significant beside the larger sum of what it considers to be deprivation, Mr X’s intermittent payments to Mrs X’s account have not changed the Council’s view of the case. It has agreed to adjust its figures as a consequence of the new information.
53. The Council has demonstrated that it considered all the information before it and did so in line with its statutory duty. I do not find fault.

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Investigator's decision on behalf of the Ombudsman