Summary: Mr X complains about the Council’s decision that his mother deliberately deprived herself of capital to avoid care costs. We find no fault in the way the Council reached its decision.

The complaint

1. Mr X on behalf of his mother Mrs Y, complains that Council has unfairly decided that his mother deprived herself of assets when she transferred £29,000 to Mr X to pay for a new car.
2. Mr X says the Council has not properly considered the information, causing uncertainty and distress.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have considered the complaint and documents provided by Mr X. I made enquiries of the Council and considered the information it provided in response.
6. I provided Mr X and the Council with a copy of my draft decision and invited their comments before reaching a final decision.

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What I found

Legal and administrative background

7. 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.
8. The Guidance says anyone with over the upper capital limit (currently £23,250) can be expected to pay the full cost of their care.
9. 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?”
10. 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.”
11. 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.”
12. 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

13. Mrs Y had given Lasting Power of Attorney (LPA) to Mr X in March 2019. An LPA is a legal document, which allows people to choose one person (or several) to make their decision about their health and welfare and/or their finances and property, for when they become unbale to do so themselves. The ‘attorney is the person chosen to make a decision which has to be in the person’s best interest, on their behalf.
14. In July 2017 Mrs Y sold her property for £240,000 and purchased a flat for £125,000.
15. In November 2017 Mrs Y was admitted to hospital following a stroke. On discharge, the Council provided Mrs Y with a short-term reablement package, free of charge for up to six weeks. Mrs Y signed an agreement which included information about charging for long term care, once the reablement package had ended. The agreement stated that where a person has saving or investments above £23,250, they would be responsible for the cost of any social care provided. After the reablement service, Mrs Y did not require an ongoing support package.
16. The assessment completed at the time stated that Mr X supported Mrs Y with some of her care needs. It said that prior to the stroke Mrs Y was completely independent with her mobility but following the stroke she required support with her mobility and personal care.
17. On 7 July 2019 Mr X purchased a car for £27,748. The car was purchased and registered in Mr X’s name.
18. On 21 July 2019 Mrs Y had a fall and was admitted to hospital with a fracture to her spine and pelvis. Mrs Y was assessed for a reablement package which commenced on discharge, 10 September 2019. Prior to the commencement of the service with Mrs Y signed another community reablement service agreement. Mr X also signed this agreement. This stated “If you have to pay for your care and support, the payments will start the day after the free reablement period ends. If your savings and investments are above £23,250 (not including the value of your home) or if you have chosen not to tell the council about your money, you will need to pay the full cost of your care”
19. Mrs Y transferred £22,000 to Mr X’s bank account on 14 September 2019.
20. A social worker and occupational therapist visited Mrs Y at home on 18 September 2019. Mr X was also present. The case records state that the purpose of the visit was to assess Mrs Y, explain the reablement service and charging procedure. It was agreed that referrals would be made for carers to support Mrs Y at home and to the fall prevention service. Mrs Y told the social worker that her savings were below the threshold of £23,250.
21. Mrs Y transferred £7,000 to Mr X’s bank account on 26 September 2019.
22. Mrs Y’s long-term care package commenced on 4 October 2019. The financial assessment showed that Mrs Y had transferred £29,000 to Mr X. Mr X said that this was for the car he had purchased in July 2019. He said that the car was purchased for Mrs Y.
23. On 22 October 2019, the Council’s records show that it considered the possibility that the transfer of funds represented a deprivation of assets. Mr X was informed of this. Mrs Y was assessed as paying the full cost of her care until a decision had been made by the deprivation of assets panel.
24. Mr X disputed the charges. On 22 November he provided the Council with a statement from Mrs Y. Mrs Y said she had asked Mr X to purchase a tow car to support her hobby of caravanning. A family holiday had been booked for August 2019 and they had intended to take the new car. Mrs Y said the money was not transferred immediately as Mr X was busy supporting her during her stay in hospital and after discharge. She said that the car was purchased two weeks prior to her fall and admission to her hospital.
25. On the same day, the social worker completed the deprivation of assets form, which included the information she had received from Mrs Y and Mr X. The form was passed to the welfare benefits team, who also spoke to Mr X.
26. Mrs Y was admitted to hospital in December following another fall. It was agreed that Mrs Y would benefit from a small increase to her care package to ensure her nutritional needs were being met. The case records show that the Council told Mr X the deprivation of assets form had been completed.
27. The deprivation of assets panel considered the case on 17 January 2019. The Council wrote to Mrs Y with its decision on 18 February 2020, that the gift of £29,000 met the criteria for a deprivation of assets. The Council detailed the information it had considered and the guidance and policy it had taken into account. The Council explained the Care and support Statutory Guidance (CASS) states that when considering deprivation of capital local authorities must consider motivation, timing and whether the person had a reasonable expectation of the need to contribute towards care and support costs. It further explained that case law sets out the criteria a local authority must consider:

• Whether avoiding the care and support charge was a significant motivation
• 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?

28. In this case the Council said that Mrs Y had received reablement support in 2017/18 and was aware of the charging regulations and financial threshold. It said the car was purchased in July 2019, but the money was not transferred until September 2019, by which time Mrs Y had developed significant social care needs as a result of the fall that she had in July and injuries that she sustained and therefore was aware that she would require funded care on discharge from hospital. The Council said there was no evidence that Mrs Y had asked Mr X to purchase the car on her behalf or that she would pay him later. The car was registered in Mr X’s name which indicated that it was a gift.
29. Mr X complained to the Ombudsman that the Council had not taken account of the information he sent and that he had not had the opportunity to present his case.

Analysis

30. I have considered whether there was fault by the Council in the way the decision was reached.
31. The social worker and welfare benefits advisor gathered information and evidence from Mr X and Mrs Y. In my view the Council considered relevant facts, legislation, guidance, and its own policy when making its decision. The Council considered the background, Mrs Y’s understanding of the charging threshold and regulations in 2017 and 2018 and her health at the time the funds were transferred to Mr X. The Council considered how the money was spent on a tow car and the reasons Mr X and Mrs Y gave for this. The Council established that the car was purchased and registered in Mr X’s name. As I have found no fault in the way the decision was reached, I cannot question the merits of the decision.
32. There was some delay by the Council in completing the initial deprivation of assets form, prior to submitting it to the panel. There was also a delay in the Council writing to Mrs Y with its decision, one month after the panel meeting. However, the case records show that Mr X was kept fully informed throughout the process and therefore I have found no fault here.

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Final decision

33. I have no fault tin the way the Council reached its decision and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman