Summary: The Council acted without administrative fault in deciding to treat Mrs Y as having deprived herself of assets. There is evidence of fault in the way Council completed a Mental Capacity Assessment of Mrs Y

The complaint

1. Mr X complains the Council has failed to deal properly with the charges for his mother, Mrs Y’s care, and that she deprived herself of an asset.

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The Ombudsman’s role and powers

2. 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)
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

4. I have:

• considered the complaint and discussed it with Mr X
• considered the correspondence between Mr X and the Council, including the Council’s response to the complaint
• made enquiries of the Council and considered the responses
• taken account of relevant legislation
• offered Mr X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

5. Under the Care Act 2014 a local authority can choose whether or not to charge for meeting assessed needs of people in its area. When a local authority arranges for a person to enter a care home permanently the person is usually financially assessed to see if the person should contribute towards care costs. The local authority calculates the contribution using income, savings and other capital. When assessing a person’s eligibility for financial assessment the local authority can look for evidence of deliberate deprivation of capital such as savings or a property.
6. Deliberate deprivation is when a person transfers an asset out of his name to put himself in a better position for a local authority means test. Deprivation covers a range of ways including:

• A lump sum payment to someone else for example a gift or spending
• Title deeds of a property is transferred to someone else
• Substantial expenditure occurring suddenly and out of character with previous spending

7. Statutory guidance says a local authority must prove a person’s intention to avoid care and accommodation charges was a significant factor or the only reason that an asset was transferred elsewhere.
8. In terms of a local authority’s investigation into whether a deprivation of assets occurred statutory guidance says the authority must take the following factors into account:

• Whether avoiding the care and support charge was a significant motivation.
• The time of the disposal of the asset. At the time 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?

9. The guidance says it is unreasonable to decide a person disposed of an asset to reduce the level of care charges if, at the time the disposal took place, the person was fit and healthy, and could not have foreseen the need for care and support.
10. If a local authority decides a person deliberately transferred a property out of his name, then it has to treat the person as though he still possesses the asset. This is called treating it as notional capital.
11. If a person transfers the asset to a third party to avoid the charge then the third party could be liable to pay the local authority the difference between what the person would have been charged and what the person was charged at the time of the financial assessment. The third party is not liable to pay anything exceeding the benefit they received from the transfer of the asset.
12. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
13. The Act says ‘A person must be assumed to have capacity unless it is established that he lacks capacity. A person should not be treated as unable to make a decision:

• because he makes an unwise decision.
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour.
• before all practicable steps to help the person to do so have been taken without success’

14. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

What happened

15. Mrs Y has dementia and is no longer able to manage her affairs. She currently resides in a residential secure unit. Mr X holds Power of Attorney for property and finance jointly and severally with his brother.
16. In April 2018, Mr and Mrs Y transferred the ownership of their home into a Trust. Mr Y died five months later, in September 2018.
17. After her husband’s death Mrs Y was unable to manage at home alone and went into residential respite care. At the time the family were given incorrect information about charging. The Council later waived all charges between May & August 2018.
18. In January 2019, the Council concluded that the transfer of the family home to a Trust amounted to a deprivation of asset, and Mrs Y was considered to be self-funding. Mr X says, at the point the Deed of Trust was created, it was not his parent’s intention to avoid paying future care costs.
19. Despite an appeal by Mr X the Council maintained its position.
20. Mr X says, in its correspondence about this matter the Council refused to provide him with information about Y’s care needs, saying it was not her best interest that such information be divulged. Mr X disagrees with this and believes the Council should have provided him with all information relating to Mrs Y social care needs.
21. Mr X says the Council has failed to respond to his queries and complaints about the above.

What the Council says

22. In 2013, Mrs Y had a stroke which affected her eyesight and memory. A needs assessment concluded she had eligible care needs. She subsequently received domiciliary care services. The assessments record that Mr Y had medical problems and there were occasions when Mrs Y needed residential respite care.
23. The Council reviewed Mrs Y’s care needs annually from 2013 onwards.
24. The Council considered the transfer of the property amounted to a deprivation of assets under Annex E of the Care Act 2014, because Mrs Y had received domiciliary care services for a significant period of time before the transfer took place.
25. Annex E of the Care and Support Statutory Guidance deals with the deprivation of assets. It says 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?”

26. In this case, the Council considered the above test was met and Mrs Y had deprived herself of her asset.
27. The Council completed a Mental Capacity Assessment (MCA) of Mrs Y on 18 June 2019, to establish is she had capacity to consent to sharing her social care information with Mr Y and his brother. The assessor concluded, that although Mrs Y said Mr Y and his brother “…needed to know the information to be able to support her”, and that Mrs Y was able to communicate her decision, she concluded “she [Mrs Y] was not able to retain information about what the information being shared would consist of”.
28. The Council took a Best Interests decision. The assessor recorded she had consulted with Mr X and that there was no disagreement between him and the Council, and concluded it was “...not proportionate or least restrictive to share all social care records with sons and the one piece of information they do want does not exist on the social care system”.

Analysis

29. The Ombudsman cannot question whether a council’s decision is right or wrong simply because a complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
30. It is not for me to substitute my judgement for that of the Council and assume the role of the decision maker. Neither is it my role to say whether Mrs Y deprived herself of capital to avoid care costs. My role is to consider whether the Council reached its decision in line with the Guidance.
31. The Council took account of Mrs Y’s health and support needs, and of the timing of the transfer of the property, 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 Y as having deprived herself of assets.”
32. I note Mr X disagrees with the Council’s reasoning, but I am satisfied there is reasoned justification for the Council’s decision.
33. In respect of the Council’s decision not to share Mrs Y’s social care records with Mr X and his brother. I find fault by the Council. There is evidence of administrative fault in the way the Council made its decision.
34. The Mental Capacity Assessment, and subsequent Best Interest decision are contradictory. The assessment records Mrs Y was able to communicate her feelings, and that she was agreeable to the information being shared with her sons. The record of the conversation show Mrs Y understood what was being asked, and that she engaged in conversation about it. I do not understand how the assessor then concluded Mrs Y lacked capacity to make the decision because she was not able “…to retain information about what the information being shared would consist of but she was not able to retain about what the information being shared would consist of”.
35. Capacity assessments are time specific, at the time the assessment was completed it is clear Mrs Y understood the issue in question related to the sharing of information about social care needs, and she made her wishes clear, she thought her sons should have the information. In relation to retaining the information, this in itself does not evidence a lack of mental capacity to make a decision. Mrs Y was able to retain the information long enough to discuss it with the assessor and come to a decision.
36. The assessor recorded she had consulted Mr X as part of the process, and that there was no disagreement about the sharing of Mrs Y’s social care records. I am unclear why the Council thought a Best Interest decision was necessary if there was no disagreement between Mr X and the Council. Part of the complaint Mr X made to this office related to Council’s refusal to share Mrs Y’s social care records.

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Agreed action

37. The Council will within one month:

• review the Mental Capacity Assessment and consider Mrs Y expressed wishes. (It is not necessary to conduct a fresh assessment).
• apologise to Mr X for the distress, and time and trouble caused by its failure to properly assess Mrs Y’s mental capacity
• review its internal procedures to ensure that the principles of the Mental Capacity Act 2005 are followed.

38. Provide evidence of the above to this office.

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Final Decision

39. The Council acted without administrative fault in deciding to treat Mrs Y as having deprived herself of assets. Therefore, I cannot question the Council’s decision.
40. There is evidence of fault in the way Council completed a Mental Capacity Assessment of Mrs Y in relation to sharing her social care records with Mr X. The recommendation above is a suitable way to address the injustice caused.
41. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman