Royal Borough of Kingston upon Thames (19 004 207)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 18 Dec 2019

The Ombudsman's final decision:

Summary: Mr D complains the Council wrongly accused him of depriving his mother of her assets to avoid care costs and about the way it investigated this. The Ombudsman has found fault by the Council. It has agreed apologise and make a payment to Mr D to acknowledge the distress and time and trouble caused.

The complaint

  1. Mr D complains the Council:
      1. Maliciously alleged he had deprived his mother of her assets to avoid care charges
      2. Took too long to investigate the matter and did not interview him or his siblings
      3. Maliciously referred him to the Office of the Public Guardian
      4. Failed to answer his questions in response to his complaint
      5. Refused to escalate his complaint to stage 2 of its procedure
  2. Mr D says the unnecessarily prolonged process has been upsetting and distressing. It has caused him significant anxiety and time and trouble, affecting his business.

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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. 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

  1. I spoke to Mr D about his complaint and considered the information he sent, the Council’s response to my enquiries and:
    • The Care Act 2014 (“the Act”)
    • The Care and Support Statutory Guidance (“the Guidance”)
  2. I sent Mr D and the Council my draft decision and considered the comments I received.

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What I found

Charging for care

  1. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
  2. The law states that people who have over the upper capital limit (£23,250) are expected to pay the full cost of their care. They are known as self-funders. Once their capital has reduced to less than the upper capital limit, they must only pay an assessed contribution.
  3. The Act and Guidance set out the rules local authorities must follow when undertaking a financial assessment to decide how much a person must pay towards the cost of their care. There are no timescales set out within legislation or statutory guidance with regards to completing financial assessments.
  4. The Guidance says where a person has joint beneficial ownership of capital, the total value should be divided equally between the joint owners and the person should be treated as owning an equal share.

Deprivation of assets

  1. The Guidance says people should be able to spend the money they have saved as they wish. However, it is also important people pay their fair contribution towards their care and support costs. Local authorities should ensure people are not rewarded for trying to avoid paying their assessed contribution. Councils must therefore assess a person to determine whether they have intentionally deprived themselves of assets to avoid paying care fees.
  2. A person can deprive themselves of capital in many ways, for example by making a lump sum payment to someone else as a gift. Local authorities should not assume someone has intentionally deprived themselves of assets to reduce their contribution to care fees. The Guidance says there may be other valid reasons.
  3. In deciding whether the purpose of the deprivation was to avoid care fees, local authorities should consider:
    • 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?
    • Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?
  4. If a local authority decides a person has deprived themselves of assets to avoid paying care fees, it may treat those assets as if the person still owns them (notional capital) in its financial assessment.

Enduring Power of Attorney

  1. An Enduring Power of Attorney (EPA) is a document that appoints a person(s) to help manage someone's property, money and financial affairs. An EPA does not allow someone to make decisions about a person's health and welfare. In 2007 EPAs were replaced by Lasting Power of Attorneys, EPAs made before October 2007 remain valid.
  2. The attorney is the person chosen to make a decision on the person's behalf; in effect they act as though they are the person. Attorneys appointed jointly and severally can act and make decisions independently of each other, as well as together.
  3. The attorney’s decision must be in the person's best interests. If the person has capacity, the attorney must still involve them in making decisions whenever possible. If the person becomes unable to make financial decisions, the EPA must be registered with the Office of the Public Guardian (OPG) before it can be used.
  4. The OPG oversees the work of attorneys and produces detailed guidance for them. If someone has a concern about an attorney, for example, about the misuse of money or decisions that are not in the best interests of the person they’re responsible for, they should contact the OPG which can investigate the attorney’s actions.

Safeguarding

  1. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse (such as financial abuse) or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)

Council complaints procedures

  1. Complaints about Adult Social Care are investigated under the Local Authority Social Services and National Health Services complaint (England) Regulations 2009. These say a single stage procedure should be enough. The Council’s complaint response should say:
    • how it has considered the complaint; and
    • what conclusions it has reached about the complaint, including any matters which may need remedial action; and
    • whether the responsible body is satisfied it has taken or will take necessary action; and
    • details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.
  2. The Council has a two-stage procedure for adult social care complaints. At Stage 1 it will write to complainants to say whether the complaint has been upheld and the reasons for the decision. It will also explain the complainant’s right to a review at Stage 2.
  3. Complainants can seek a Stage 2 review if the complaint has not been resolved at Stage 1. A manager will consider the complaint to clarify what was investigated at Stage 1 and ensure the scope of the complaint was clear. The Council’s policy says if the Council decides its response will stay the same after a Stage 2 review it will confirm a final decision was made at Stage 1 and refer the complaint to the Ombudsman.

What happened

  1. Mr D’s mother, Mrs J, has dementia and other health problems. She lived with her husband. Mr D and his brother have an EPA for their mother, which had been made in 2007. There is a restriction noted on the EPA that states, “I exclude the power for either of my attorneys to make gifts of any of my assets”.
  2. In August 2017, Mrs J was admitted to hospital. Whilst there she was assessed as not having the capacity to make decisions about her care or where she should live. Following a best interest decision, Mrs J was discharged from hospital in September 2017 with a 24-hour homecare package. Mr D has made a separate complaint to the Ombudsman about this.
  3. The Council began a financial assessment to determine how much Mrs J should pay towards the cost of her care. Mr D completed the assessment form. He declared two bank accounts, one of which was a joint account between Mrs J and her husband. Mr D also stated that in April 2016 his father had agreed to pay Mr D’s brother £45,000 to extend the lease on his property.
  4. The Council reviewed the information and wrote to Mr D on 12 October 2017. It had determined that Mrs J’s capital assets were above the threshold as it had taken into account 50% of the savings in the joint account. As such she was a self-funder and required to pay the full cost of her care.
  5. The Council also said that, as it had no evidence to confirm the April 2016 agreement to pay Mr D’s brother, it considered there had been a deprivation of assets. It had therefore included a further £19,500 in Mrs J’s assets.
  6. Mr D disputed the decision and asked for it to be reconsidered. He said he had understood the joint account would be disregarded as it contained his father's monies only. Mr D explained that Mr J had agreed to give money to his brother in early 2016 but the legal process of extending the lease was taking time. The money for this was coming from funds that Mr J had put into the savings account and it was not an attempt to deprive Mrs J of her assets.
  7. The Council passed the case to its fraud team in January 2018 to determine whether there had been a deliberate deprivation of assets. I have seen no evidence of the Council taking any further action in relation to the deprivation of assets investigation until April 2018.
  8. The Council met Mr D on 6 April 2018 to discuss issues relating to Mrs J’s care. He told the Council the dispute about who was responsible for paying for Mrs J’s homecare and the delay in finalising her financial assessment had caused a great deal of distress. He also told the Council there had never been any intention to avoid paying Mrs J’s care fees. Mr D says the manager at the meeting agreed there had been no deprivation of assets. The note of the meeting says she advised him there would be a further internal discussion about the matter.
  9. This discussion was held on 25 April 2018. At this meeting the Council considered that Mrs J’s assets had been deliberately reduced.
  10. The Council continued to consider the matter and whether there was evidence there had been an intention to avoid paying for care. It considered there was a concern about an attorney’s management of Mrs J’s finances, which would be a safeguarding issue in relation to financial abuse. The Council therefore referred Mr D to the OPG on 31 May 2018 and made a safeguarding referral on 4 June 2018. The safeguarding team agreed to delay any investigation until the outcome of the fraud investigation and consideration by the OPG.
  11. There is no evidence of any further action being taken, until a further meeting on 6 September 2018. The fraud investigator’s report was considered at the meeting. It said there was no evidence there had been a deliberate intention to avoid care costs. The Council decided there had been no deprivation of assets. The OPG confirmed to the Council it was taking no further action on 23 October 2018.

Mr D’s complaint

  1. Mr D made a formal complaint on 19 December 2018 about this matter and about issues relating to Mrs J’s care and care charges.
  2. The Council responded on 1 February 2019. It accepted the deprivation of assets investigation had taken too long and apologised. It said the delay had been caused by a lack of clear procedures. It had since reviewed and changed its processes.
  3. Mr D complained to the Ombudsman in June 2019. He said the Council had failed to answer his questions and had refused to take his complaint to Stage 2.

My findings

Maliciously alleged he had deprived his mother of her assets to avoid care charges

  1. The Guidance requires councils to consider whether there has been a deprivation of assets when it carries out a financial assessment. Mr D told the Council about the money his father had agreed to pay his brother. The Council was therefore required to consider whether this was a deprivation of assets. Mr D complains the Council acted maliciously against him. It was not fault for it to start an investigation and I have seen no evidence of malice in this decision.
  2. However, there was fault in the Council’s decision in its letter of 12 October 2017 that there had been a deprivation of assets. Councils must consider the questions in the Guidance before they can determine whether there has been deprivation, that is, whether care needs and costs could have been foreseen at the time the disposal was agreed and whether the disposal had been deliberate to avoid care charges. In October 2017, the Council had not considered these points. It was therefore fault to say there had been deprivation. The Council eventually considered foreseeability and intention and concluded there had been no deprivation of assets.

Took too long to investigate the matter and did not interview him or his siblings

  1. There was significant delay in the way the Council dealt with the investigation. There were long gaps between October 2017 and January 2018, from January 2018 until April 2018, and then between May 2018 and September 2018, where I can see no evidence of action being taken. This is fault.
  2. The Guidance does not require the Council to interview Mr D or his siblings as part of its deprivation of assets investigation, but I note the finance team spoke to him in autumn 2017 and he met the Council in April 2018. He also submitted his views in writing. I therefore do not find fault.

Maliciously referred him to the Office of the Public Guardian

  1. Mr D is correct that his was the only case that was referred to the OPG in that year, but referral to the OPG is required if there is a concern about an attorney’s management of someone’s funds. As the Council was investigating whether the transfer of funds was a deprivation of assets, it was concerned that the transfer was not in Mrs J’s best interests. It was therefore not fault to refer Mr D to the OPG and there is no evidence it was a malicious act. Lack of other referrals is not evidence of malice in Mr D’s case.

Failed to answer his questions in response to his complaint

  1. The Council’s complaint response sets out how it had considered the complaint; what conclusions it had reached; what action would be taken; and the next stage in the complaints process. This is in line with the statutory guidance. The response describes what has happened and addresses Mr D’s questions about:
    • inviting his representations
    • his mother’s care prior to August 2017
    • the involvement of the chief executive in the case
    • the release of Mrs J’s case records
    • the referral to the OPG
    • the decision on deprivation of assets
    • how the case was handled
  2. Whilst I appreciate Mr D was dissatisfied with the response, I have no evidence the Council did not respond to his questions.

Refused to escalate his complaint to stage 2 of its procedure

  1. The Council refused to consider Mr D’s complaint at Stage 2 of its procedure. This is in line with its complaints policy, which allows the Council to make this decision if it feels a Stage 2 response would be the same as the Stage 1. I therefore do not find fault.

Did the fault cause injustice?

  1. My provisional view is there was fault in the Council’s initial decision that there had been a deprivation of assets and in the delay in its investigation. Whilst I welcome the Council’s acceptance of the delay, its apology to Mr D, and the changes it has made to its processes, I do not consider this is sufficient to remedy the injustice caused to Mr D. He was subject to an unnecessarily prolonged, year-long investigation at a difficult time for the family and when there were additional concerns about the charges for Mrs J’s care. This caused him significant distress and he had the time and trouble of pursuing the matter with the Council.
  2. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we recommend repayment of a person’s actual costs (such as lost earnings or phone calls) of dealing with a matter.

Agreed action

  1. Within a month of my final decision, the Council has agreed to apologise to Mr D and pay him:
    • £250 to acknowledge the distress caused by the delay in the deprivation of assets investigation
    • £250 to acknowledge the time and trouble he was put to in pursuing the matter

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Final decision

  1. There was fault by the Council which caused injustice. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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