Decision : Closed after initial enquiries
Decision date : 31 Mar 2020
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mrs X’s complaint that the Council failed to properly consider the law and guidance when deciding Mrs X deliberately deprived herself of capital to avoid care charges. This is because there is insufficient evidence of fault by the Council to warrant an investigation.
- Mrs X complains the Council failed to properly consider the law and guidance when deciding that Mrs X deliberately deprived herself of capital to avoid care charges.
- Mrs X says this has resulted in the Council trying to include capital in a financial assessment which she no longer has.
The Ombudsman’s role and powers
- 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)
- We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we would find fault, or
- it is unlikely we could add to any previous investigation by the Council, or
- it is unlikely further investigation will lead to a different outcome.
(Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I have considered Mrs X’s complaint to the Ombudsman and the information she provided. I have written to Mr Y (acting on behalf of Mrs X) with my draft decision and given him an opportunity to comment.
What I found
- Mrs X has had a diagnosis of physical health conditions since 1995.
- Mrs X moved into a retirement flat in 2014. Mrs X had no care or support in this flat but did have a warden call service in place.
- In 2015, Mrs X placed the retirement flat under a trust with ownership going to the trustees.
- In early 2018, Mrs X moved into residential care and lost capacity to manage her finances. Mrs Y told the Council in November 2018 that Mrs X’s capital was falling to £23,250.
- The Council determined that Mrs X had deliberately deprived herself of capital to avoid care charges. Mrs X complained to the Ombudsman in June 2019.
- The Ombudsman found fault with the Council as it failed to ask the relevant questions in the Care and Support Statutory Guidance. The Ombudsman asked the Council to reconsider its decision addressing all the questions.
- The Council wrote to Mrs X in October 2019 with its reconsideration but upheld its position that Mrs X had deprived herself of capital with the intention of avoiding care fees.
- 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.
- 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 the deprivation of assets. It says:
- 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:”
- “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?”
- It is not for the Ombudsman to decide if Mrs X has deprived herself of capital to avoid paying care costs. We must consider if the Council has followed the correct guidance and process.
- The Council has considered the first question outlined above under section 11 (a) within its stage 1 response in March 2019. The Council outlined three main points why Mrs X could have reasonable expectation of needing care and support.
- Following the Ombudsman’s previous decision, the Council has considered the second question under section 11 (b). The Council set out its reasons for considering Mrs X should have had reasonable expectation that she would need to contribute towards her care. The main points outlined by the Council are as follows:
- Mrs X had a history of occupational therapy involvement;
- Mrs X had a number of falls and following assessment by the Falls Prevention Team telecare was recommended which Mrs X installed and paid monthly rental for;
- Mrs X purchased a flat in 2014 which was in a residential development with inclusive charges for communal facilitates, a 24-hour emergency careline and staff on hand to deal with emergencies;
- Mrs X privately purchased domiciliary care whilst occupying her flat;
- York Council has been charging for care since 1996 with information about this available on its website and in hard-copy format; and
- The introduction of the Care Act in 2014 prompted advertising of care charges including circulation of information by local councils, radio and newspaper advertising which put this knowledge into the public domain.
- My decision is that the Ombudsman will not investigate Mrs X’s complaint the Council failed to properly consider the law and guidance when deciding Mrs X deliberately deprived herself of capital to avoid care charges. This is because there is insufficient evidence of fault by the Council to warrant an investigation.
Investigator's decision on behalf of the Ombudsman