Sefton Metropolitan Borough Council (19 016 142)

Category : Adult care services > Charging

Decision : Not upheld

Decision date : 08 Jul 2020

The Ombudsman's final decision:

Summary: A legal representative complains the Council wrongly calculated the contribution her client Mrs C was required to make towards the cost of care, having decided that Mrs C had deprived herself of capital. The Ombudsman finds no administrative fault in the Council’s decision-making. Further, the Council’s decision on deprivation did not lead to Mrs B paying more for her care in the relevant period.

The complaint

  1. A legal representative, whom I shall call Ms B, complains on behalf of three members of a family (Mrs C and two of her adult children) that the Council wrongly decided there had been a deliberate deprivation of assets, and as a result it has wrongly calculated the contribution Mrs C is required to make towards the costs of her care.

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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 considered all the information provided by Ms B about the complaint. I made written enquiries of the Council and took account of all the information it provided in response.
  2. Ms B and the Council had the opportunity to comment on a draft of this decision.

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What I found

Legal and administrative background

  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). 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. The Act and the Care and Support Statutory 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. 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.
  2. Regarding deprivation of capital, the Guidance notes that people should be able to spend the money they have saved as they wish, but also that it is important that 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.
  3. 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. 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. 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?

What happened in this case?

Mr and Mrs C’s financial arrangements

  1. Mr and Mrs C and his wife jointly owned their home. In correspondence with the Council Ms B reported that the couple had instructed her firm in July 2017 to prepare wills for them and to sever the tenancy. This was not completed for some months, and Ms B reports that this was delay on the part of the solicitor’s firm. The notice of severance of equitable joint tenancy was dated 1 December 2017. In Mr C’s will he noted that his half-share of the property was placed in trust for his children, and that these trustees were to allow Mrs C to remain living there rent free after his death. Mr C died in April 2018.

Mrs C’s health and care needs

  1. In June 2017 Mrs C was admitted to hospital following a fall. She had a medical history of coronary heart disease, hypertension, osteoporosis, polymyalgia rheumatica, cellulitis and chronic kidney disease. She was also awaiting dementia screening due to cognitive changes and aggressive behaviour and confusion. She was assessed at this time as requiring four care calls a day on discharge from hospital. She was readmitted to hospital on two further occasions, in September and October 2017. A care needs review completed in November 2017 noted that family members had been providing round the clock care for Mr and Mrs C and that this had got to a point of crisis. It noted that Mrs C’s daughter was concerned about Mrs C’s behaviour and that this would impact on the welfare of welfare of both Mr and Mrs C when they returned home: Mr C had himself been admitted to hospital earlier in October following a stroke, and he was discharged to residential care in mid-November, initially on a short-term basis, around the same time that his wife was discharged to the family home. Before being admitted to hospital Mr C had been receiving one daily care call at home. Mrs C needed four daily calls.
  2. In January 2018, a reassessment of Mr C’s need concluded that he should remain in residential care on a long-term basis. As noted above, he died in April 2018.
  3. Mrs C was admitted to a care home on a long-term placement in mid-October 2018. The Council carried out a financial assessment. It disregarded the value of the family home for the first 12 weeks, but after this, from 9 January 2019, the whole value of the property was taken into account as capital available to her and she was assessed as being able to self-fund her care.

The Council’s decision on deprivation

  1. The Council decided, having considered the facts of the case, that Mrs C’s capital amounted to the full value of the family home and not just a half share. Ms B challenged this on behalf of Mrs C and her family, saying that Mrs C did not own all of the property, only half: she was holding the other half for her children in accordance with the terms of her late husband’s will. The Council considered, but did not accept, Ms B’s arguments. Noting the timing of the severance of tenancy and Mrs C’s health and care needs it considered care home fees must have formed part of financial planning of the family at the relevant time, forming part of the decision-making process. It said the question for it was whether it could be determined that it was in the reasonable contemplation of Mrs C in transferring the property that placement in long-term care was a foreseeable consequence of her care needs: it considered the proximity of the property transfer to the admission to the care home was relevant.

Analysis

  1. The Council took account of Mrs C’s health and support needs and of the timing of the severance of the tenancy, and it did not make its decision in ignorance of any material facts. I am satisfied the Council acted without administrative fault in deciding to treat Mrs C as having deprived herself of assets.
  2. It is noted that Mrs C’s representative disagreed with the Council having decided Mrs C had available to her the full value of the family home and not only the half-share which remained in her name after the severance of the tenancy. However, the Council has confirmed that from 11 September 2019 Mrs C became eligible for NHS Continuing Healthcare (CHC) funding, and this is continuing. CHC funding is not means tested and it covers the full costs of a person’s health and social care needs, including residential accommodation. So, the relevant period for which Mrs C was required to fund her own care was from 9 January 2019 to 11 September 2019. Even if the Council had taken into account only half of the value of the family home, the half-share valued at approximately £77,000 would have had been sufficient capital to mean that she had to fully self-fund her care for that period, based on the Council’s upper estimation of costs of around £570 a week, because paying those fees would not have caused her capital to drop below the £23,250 capital limit before CHC funding was awarded.

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Final decision

  1. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman

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