Summary: Mr X complains about the Council’s decision that his father has deliberately deprived himself of capital to avoid care costs. The Council has not properly applied the two tests set out in the Care and Support Statutory Guidance for making such decisions. However, it is clear from the information Mr X has provided that, if the Council had applied the tests properly, it would have reached the same decision.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has failed to deal properly with its decision that his father has deliberately deprived himself of capital to avoid care costs.

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The Ombudsman’s role and powers

2. 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)
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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• shared a draft of this statement with Mr X and the Council, and invited comments for me to consider before making my final decision.

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What I found

Legal and administrative background

5. The Care and Support (Charging and Assessment of Resources) Regulations 2014, and the Care and Support Statutory Guidance 2014 (“the Guidance”) set out the charging rules. When a council decides to charge for care, it has to follow these rules when deciding how much a person has to pay towards their care.
6. The Guidance says anyone with over the upper capital limit (currently £23,250) can be expected to pay the full cost of their care.
7. Annex E of the Guidance deals with the deprivation of assets. It says:
• 3) “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. In such circumstances, the local authority should have regard to this guidance. Clearly, local authorities should treat this issue with sensitivity and care.”
• 4) “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 that people pay the contribution to their care costs that they are responsible for. This is important to the overall affordability of the care and support system. A local authority should therefore ensure that people are not rewarded for trying to avoid paying their assessed contribution.”
• 5) “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. However, the overall principle should be that when a person has tried to deprive themselves of assets, this should not affect the amount of local authority support they receive.”
• 11) “There may be many reasons for a person depriving themselves of an asset. A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:”
1. “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?”
2. “did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?”
8. 12) “For example, it would be unreasonable to decide that a person had disposed of an asset in order to reduce the level of charges for their care and support needs if at the time the disposal took place they were fit and healthy and could not have foreseen the need for care and support.”
9. 18) “If a local authority decides that a person has deliberately deprived themselves of assets in order to avoid or reduce a charge for care and support, they will first need to decide whether to treat that person as still having the asset for the purposes of the financial assessment and charge them accordingly.”
10. 19) “As a first step, a local authority should seek to charge the person as if the deprivation had not occurred. This means assuming they still own the asset and treating it as notional capital or notional income.”

What happened

11. Mr X’s father, Mr Y, cared for his wife, with the help of paid carers who visited four times a day, until she died in June 2017.
12. After returning home from hospital in March 2018, Mr Y paid for carers to look after him four times a day. After another fall later that month, Mr Y went back into hospital. After leaving hospital in May he stayed in a care home to convalesce until July. At home he again paid for carers to visit four times a day. He paid for this himself as he had capital over £23,250 which meant the Council did not have to pay for his care. While living in the care home, Mr Y gave power of attorney to his children, including Mr X. He also started making a will, which he completed after returning home. The Council started to assess his father’s finances after he returned home.
13. Mr Y said he wanted to pay Mr X back for things he had paid for in the past. Mr X says he did not want to accept any money but finally agreed to accept £40,000 from his father in August 2018.
14. Mrs X returned a financial assessment form for Mr Y on 17 September.
15. Mrs X e-mailed the Council on 20 September, having received a call telling her Mr Y had enough money to pay for his own care. She said they had provided evidence that Mr Y had less than £23,250. After Mrs X sent two more e-mails, the Council said it would respond fully by 14 October.
16. The Council visited Mr Y on 25 September and satisfied itself he had willingly given money to Mr X.
17. On 15 October the Council asked Mr & Mrs X to provide more information if they wanted it to take account of expenses which had only recently been repaid (i.e. the £40,000).
18. After Mr X responded to the Council, it told him on 9 November it would continue to treat Mr Y as a self-funder. It said Mr Y knew he had care needs when he disposed of the assets. Without a satisfactory explanation, it said Mr Y had deliberately deprived himself of capital to get funding from the Council.
19. On 19 November, Mr X disputed the claim Mr Y had deliberately deprived himself of assets to get council funding.
20. Mrs X complained about the Council’s decision.
21. When the Council replied on 6 June 2019, it said it had considered the points she had raised, Mr Y’s financial assessment and referred to the Care Act. It said it upheld the decision that he was a self-funder. It referred to Annex E, paragraph 11 of the Guidance (see paragraph 7 above).
22. On 17 June, following a decline in Mr Y’s condition, his family moved him back into the care home.
23. Mr X complained about the Council’s decision on 4 July and said his father needed another financial assessment as he was living in a care home. He sent the Council more information on 1 August. When it replied on 29 August, the Council referred Mr X to the e-mail it sent his wife on 6 June.

Is there evidence of fault by the Council which caused injustice?

24. There were two questions for the Council to consider:
• in August 2018 could Mr Y have had a reasonable expectation of the need for care and support?
• in August 2018 did he have a reasonable expectation of needing to contribute to the cost of his eligible care needs?
25. The Council said Mr Y knew he had care needs in August 2018 but did not explain why that was the case. It also failed to address the question of why Mr Y had a reasonable expectation of having to contribute towards the cost of his care.
26. However, it is clear from the information Mr X provided in response to my draft decision that in August Mr Y:
• had a reasonable expectation of the need for care and support as he was already receiving it;
• had a reasonable expectation of needing to contribute to the costs of eligible care needs as he was already paying to have them met.
27. Therefore, while the Council was at fault, I cannot say this made any difference to the outcome.

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Final decision

28. I have completed my investigation as there is no evidence the Council’s action caused injustice.

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Investigator's decision on behalf of the Ombudsman