Summary: Mrs X complains about the Council’s decision that she intentionally deprived herself of assets to avoid paying her care fees. She says she transferred her property to her son in May 2017 and, at the time, there was no indication she would fall ill and need care. The Ombudsman finds no fault with the Council’s decision that Mrs X had intentionally deprived herself of assets.

The complaint

1. Mrs X complains about the Council’s financial assessment. In particular, she complains about the Council’s decision that she intentionally deprived herself of assets to avoid paying her care fees. She says she transferred her property to her son, Mr Y, in May 2017. She said when she transferred her property, there were no indications she would fall ill and require care.
2. Mrs X is represented by her son, Mr Y.
3. Mr Y says this has caused him an injustice as the Council is pursuing him for the cost of his mother’s care. Mr Y says the process has been stressful and intimidating.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I spoke with Mr Y and considered the information he provided.
8. I made enquiries with the Council and considered the information it provided.
9. I sent a draft decision to Mr Y and the Council and considered their comments.

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What I found

Relevant law and guidance

10. The Care and Support (Charging and Assessment of Resources) Regulations 2014, and the Care and Support Statutory Guidance 2014 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.
11. The guidance says anyone with over the upper capital limit (currently £23,250) can be expected to pay the full cost of their care. Annex E of the guidance deals with deprivation of assets.
12. Annex E says people should be treated with dignity and respect and be able to spend the money have saved as they wish. It is important 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 people are not rewarded for trying to avoid paying their assessed contribution.
13. Councils should not automatically assume deprivation as 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 he amount of local authority support they receive.
14. Finally, Annex E notes 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 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?
15. It would be unreasonable to decide 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 at the time they disposed of the asset.
16. Where the council decides the person has deliberately tried to avoid paying for their care by depriving themselves of capital or income, it may charge the person as though they still have the capital or income.

What happened

17. In May 2016, Mrs X gave lasting power of attorney to her son, Mr Y, for matters of health and welfare, and for property and financial affairs.
18. Mrs X owned a property. In May 2017, she transferred the ownership of her property to Mr Y.
19. In December 2017, Mrs X had a stroke and was hospitalised. Due to her care needs, she moved into a care home in April 2018.
20. In July 2018, the Council completed its financial assessment and told Mr Y of the decision. It assessed Mrs X as having notional capital above the threshold and so she was responsible for paying for the full cost of her care. The Council offered Mr Y a deferred payment agreement. A deferred payment helps those who are assessed as responsible for paying for the full cost of their care but cannot afford the charge because most of their capital is tied up in their home. The scheme is effectively a loan, with the service user’s home as security. There is no evidence Mr Y responded to the Council.
21. In December 2018, the Council wrote to Mr Y to advise him it had stopped paying Mrs X’s care home. The Council asked Mr Y to pay the care home directly. The Council again offered Mr Y the option of a deferred payment agreement. There is no evidence Mr Y responded to the Council.
22. In February 2019, the Council wrote to Mr Y again as the care home fees had remained unpaid. The Council told Mr Y if he did not make payments, it could result in action from the Council’s legal department.
23. In March 2019, the Council held a meeting with Mr Y and his sister, Ms B, to discuss Mrs X’s financial assessment.
24. In May 2019, Ms B asked the Council to reconsider its decision that Mrs X had deprived herself of assets. Ms B set out that at the time the house was transferred, Mrs X was fit, healthy, and very active. Ms B told the Council the decision to transfer the house was made years ago, before her mother needed support. This was because of Mr Y’s financial problems. Ms B also told the Council Mrs X had spent her life saying she would never go into a home and that Mr Y would take care of her if the need arose.
25. At the end of May 2019, the Council completed its review of Mrs X’s financial assessment. The Council addressed the points raised by Ms B. The Council said:
• It accepted Mrs X had not asked the Council for any care funding before her stroke in December 2017. However, Mrs X had given Mr Y power of attorney in May 2016. The Council said this suggested her affairs may need to be managed by others. The Council said it was reasonable to draw inference that her health was not perfect at the time of the registration of the power of attorney.
• It was not necessary for Mrs X to gift Mr Y the full value of the property to help him with his financial difficulties. It said she could have remained the owner and allowed Mr Y to live there. This would allow Mr Y to sell his property and pay off his debts. The Council also said Mrs X could have taken equity out of her property to help Mr Y or bought a cheaper property to release equity. The Council said this meant it was reasonable to draw inference there was another motive to gifting the property. It said it was reasonable to draw inference that avoiding future care charges provided a significant motivation in the timing of the transaction as Mrs X was 81 years old at the time of the transfer.
• It was not necessary to gift Mr Y the property as she could have left Mr Y the property in her will.
• It was reasonable to infer Mrs X would have some knowledge of the charging rules as her mother had previously lived in a care home.
• It was a fact of life that as a person ages, the chances of needing care were more likely. The Council said it was entitled to draw reasonable inference that Mrs X was increasingly likely to need care and support as she was 81 years old when she transferred the property. The Council said it was reasonable to draw inference Mrs X was aware of the likelihood of a future need for care and support, and would have been aware of the need to pay for care, when she transferred the property to Mr Y.
• It had not received appropriate evidence to substantiate the reasons given for the disposal of the property.
26. The Council asked Mr Y to provide additional evidence for it to consider. The Council confirmed it was willing to review the decision should Mr Y provide the evidence. There is no evidence Mr Y provided the Council with the requested information.
27. In June 2019, the Council wrote to Mr Y as it had not received the requested further evidence. The Council confirmed its decision remained unchanged because of this. The Council also confirmed it had paid Mrs X’s care home fees as they had not been paid. The Council told Mr Y it would invoice him for the fees paid. The Council also repeated its offer to review its decision if Mr Y provided the requested information and that the deferred payment option was still available. There is no evidence Mr Y provided the Council with the requested information.
28. In July 2019, the Council wrote to Mr Y again. The Council noted it had not received any of the material requested and so its position remained unchanged. The Council confirmed it would continue to pay the care home and would invoice him. The Council again offered Mr Y the opportunity to submit the further evidence it requested in May 2019 and the option of a deferred payment agreement. The Council told Mr Y if he did not pay, it would forward the case to its legal department.
29. At the end of July 2019, the Council received a letter from Mr Y’s solicitors. In August 2019, Mr Y’s solicitors asked the Council to suspend recovery action while it gathered the information requested. The Council confirmed it would suspend recovery action.
30. In November 2019, the Council wrote to Mr Y’s solicitors as it had not received the information it needed to review its decision. The Council said if information was not received within 28 days, it would resume recovery action.
31. At the end of November 2019, Mr Y wrote to the Council to advise he had made a complaint to the Ombudsman. Mr Y noted he was making a complaint. There is no evidence Mr Y provided the further information requested by the Council.
32. In December 2019, the Council asked Mr Y to provide the further information it requested in May 2019. The Council told Mr Y it had passed the case to the legal team for further review. The Council confirmed it would continue to chase the outstanding debt. At the end of December 2019, Mr Y asked the Council to stop any recovery action until the Ombudsman had finished its investigation.
33. In response to our enquiries, the Council noted it had not yet made a final decision on the matter. It said it had told Mr Y several times it would review the decision if he provided the further information requested. The Council said Mr X has never provided the requested information and this meant the Council could not review the decision. The Council confirmed the decision was currently being reviewed by its legal department.

Analysis

34. The guidance sets out what considerations the Council should have before deciding whether deprivation for avoiding care and support charges has occurred. These are:
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?
35. The Council has provided evidence of its consideration of the two questions above. It has provided a detailed explanation for why it has decided Mrs X did have a reasonable expectation of the need for care and support and had a reasonable expectation of needing to contribute to the cost of their eligible care needs.
36. The evidence also shows the Council has considered, and addressed, the points put forward by Ms B. This shows the Council has properly considered its decision as it has considered all relevant information.
37. When a Council has made its decision properly, the Ombudsman cannot find fault with the decision itself. Therefore, I do not find fault with the Council’s decision.
38. Further, the evidence shows the Council has provided Mr Y with several opportunities to provide the further information it needs to review its decision. There is no evidence Mr Y has ever provided the requested information. Without the further evidence requested, I am satisfied the Council could not have completed a review of its decision.
39. The Council has confirmed it remains open to reviewing the decision. Therefore, if Mr X would like the Council to review the information, it is open to him to provide the material the Council needs to complete the review.
40. Finally, there is no fault with the Council pursing Mr Y for the debt. This is because the evidence shows the Council has paid Mrs X’s care home fees to ensure she continued to receive the care she needed. As Mrs X has been assessed as being able to pay for the full cost of her care, the Council is entitled to recover the monies paid. The Council can recover the money from Mr Y as he has lasting power of attorney for Mrs X’s financial affairs.

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Final decision

41. I find no fault with the Council’s decision that Mrs X had intentionally deprived herself of assets. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman