Summary: Mr X complains about the Council’s decision not to disregard a sum of £30,000 in his father’s bank account when assessing his charges for care. The Ombudsman finds no fault by the Council.

The complaint

1. The complainant, whom I shall call Mr X, complains on behalf of his father, whom I shall call Mr F. Mr X complains about the way the Council carried out financial assessments for Mr F. Mr X also complains about the Council including a sum of £30,000 in the assessment that he says belongs to him and his brother, Mr Y.

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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 considered Mr X’s complaint and the documentation he provided in support of his complaint. This included copies of correspondence between Mr X and the Council.
5. I also considered the Council’s final appeal decision it sent to Mr X.
6. Mr X and the Council were given an opportunity to comment on a draft of this decision. The Council said it accepted the findings of the draft decision. I did not receive any comments in response to the draft decision from Mr X.

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What I found

Legal and administrative background

7. Section 14 of the Care Act 2014 gives local authorities the power to charge for care and support services they provide or arrange.
8.  
9. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 (the Charging Regulations), and the Care and Support Statutory Guidance 2014 (the statutory guidance). When the Council arranges care, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the cost of their care.
10. The rules state that people who have over the upper capital limit (currently £23,250) are expected to pay for the full cost of their care. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
11. The Council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of their care fees.
12. A local authority must also regularly reassess a person’s ability to meet the cost of any care charges to take account of any changes to their resources. The statutory guidance is not prescriptive as to how often local authorities should reassess a person’s finances. However, Section 8.17 of the statutory guidance says that a reassessment “should take place if there is a change in circumstances or at the request of the person.”

Deprivation of assets

13. The care and support statutory guidance says people with care needs are free to spend their income and assets as they see fit but it is also important that they pay their fair contribution towards their care costs.
14. Where the Council decides, after making appropriate enquiries, 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.
15. When deciding whether a person has deliberately deprived themselves of assets the council must take into account the guidance in Annex E, which says councils should consider:
1. Whether avoiding care costs was a significant motivation at the time the person disposed of the asset, including whether the person had a reasonable expectation of the need for care and support at that time; and
2. Whether the person had a reasonable expectation of needing to contribute to the cost of their eligible care needs.
16. Annex E says it would be unreasonable to decide that a person had disposed of assets to avoid paying care costs if they were “fit and healthy and could not have foreseen the need for care and support” at the time they disposed of the asset.

What happened

17. Mr X and Mr Y’s mother, whom I shall call Mrs F, inherited £22,839.90 from her mother in 2009. Mr X has provided a letter from a solicitor confirming this amount was transferred to Mrs F. Mr X says that in 2014, Mrs F told him and Mr Y that she wished for the money in her savings account to be split between them. Later that same year, Mrs F sadly died. Mrs F’s savings were transferred to Mr F.
18. In February 2017, the Council received a referral for a financial assessment to be conducted for care services Mr F was receiving at home. It contacted Mr F to arrange an appointment for a council officer to visit him at his home to complete the financial assessment.
19. Mr F’s son, Mr Y, contacted the Council and advised he was assisting Mr F with his finances and that Mr F had around £37,000 in savings and investments. The Council advised Mr Y that because Mr F had more than the capital limit of £23,250, he would need to pay for the full cost of any care services or support he received. The Council cancelled the appointment to Mr F’s home to conduct an assessment and sent the relevant charging information to Mr F in the post.
20. In December 2017, Mr F granted a lasting power of attorney (LPA) for finances and property to Mr Y. Mr X was appointed as a replacement attorney (a backup in case the original attorney can no longer make decisions).
21. Mr F was admitted to hospital in December 2019. The Council received a second referral for a financial assessment for residential care upon discharge from hospital. A social care worker advised the Council Mr F now had savings below the upper capital limit. The Council was unable to contact Mr Y by telephone so it sent the relevant financial assessment forms and information leaflet on charges to him in the post.
22. The completed forms showed Mr Y had transferred £11,519.31 from Mr F’s bank account to his own after Mr F had lost his wallet. The Council requested bank statements dating back to 2017.
23. The Council received the requested bank statements together with a letter from Mr X advising the Council that in November 2019, a sum of £30,000 had been transferred from his father’s bank account to himself and Mr Y.
24. The Council made a decision to treat the sum of £30,000 as notional capital in the financial assessment of Mr F. The Council said it made this decision because all parties were made aware of the financial assessment and charging regulations in 2017 and the funds should have remained with Mr F to financially support his care. It advised that as a result of this decision, Mr F would need to self-fund his residential care home placement for a period of approximately 42 weeks from the date of admission into care, until the level falls below the upper capital limit of £23,250.
25. Mr X and Mr Y appealed this decision. Their appeal contained the following:
• Mr and Mrs F had specifically discussed their life savings and their intentions were that they would be split between Mr X and Mr Y;
• Mr Y has a LPA regarding Mr F’s financial matters and the Council failed to contact him to attend the financial assessment meeting;
• Mr F was of sound mind in 2017 when the assessment took place and he could have explained the money belonged to his sons;
• The money remained in Mr F’s account after their mother’s death out of respect and because they did not want to upset anybody;
• Mr X and Mr Y are of the view the Council has failed to obtain the correct information and made no attempt to understand the family’s personal arrangement;
• Mr X and Mr Y withdrew the £30,000 in November 2019 as they were certain Mr F would remain in his own home and it was a convenient time to transfer the money with their father’s understanding; and
• The decision to include the £30,000 as Mr F’s savings should be overturned as this sum of money should not have been included in the financial assessment.
26. The Council upheld its decision to include the £30,000. It said its records showed it had provided sufficient information in 2017 in relation to charging and capital thresholds. The information was provided to Mr F and Mr Y verbally and also in writing. The transfer of funds of £30,000 to Mr X and Mr Y took place at a very short time before there was a need for residential care for Mr F. At that time it would have been reasonably foreseeable that Mr F would require residential care and support within the foreseeable future. The Council also reminded Mr X and Mr Y of the relevant legislation and statutory guidance it had used in making its decision (Section 8 Care Act 2014).

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My findings

27. Mr X says £30,000 of the money in Mr F’s bank account was for him and his brother, Mr Y. However, Mr Y advised the Council Mr F had around £37,000 and did not say that £30,000 of it belonged to him and his brother. In the same telephone call, the Council advised that as Mr F had over the capital limit of £23,250, he would need to pay the full cost of any care services. Mr Y still failed to mention that £30,000 of his father’s savings was for him and Mr X.
28. Mrs F passed away in 2014 and Mr X granted the LPA to Mr Y in December 2017. Mr X says his father had capacity to deal with his finances during this period. Mr F could have transferred the sum to Mr X and Mr Y during this time but he failed to do so. Additionally, Mr X has provided no evidence to show the sum does not belong to his father and has confirmed there is no legal documentation, such as a will, to support his claims.
29. Councils can choose to conduct ‘light-touch’ financial assessments in certain circumstances, for example, where a person has significant financial resources. The Council was satisfied that Mr F had savings clearly more than the upper capital limit and therefore made its decision not to a conduct a more in-depth assessment. I am satisfied the Council acted without administrative fault in making this decision.
30. Once the Council became aware of the change in Mr F’s financial circumstances, it completed a reassessment. This is in keeping with the statutory guidance. The reassessment showed around £11,000 had been transferred out of Mr F’s account therefore the Council requested bank statements going as far back as 2017 (when the Council first advised Mr F and Mr Y of the charging regulations). I cannot criticise the Council for requesting this information as part of the reassessment.
31. Upon receiving bank statements and a letter from Mr X explaining he had transferred £30,000 from Mr F’s bank account to himself and Mr Y, the Council decided this sum should be included as Mr F’s notional capital in the assessment. The Council’s appeal decision letter to Mr X explains it made this decision because all parties were aware of the charging regulations since 2017 and they were made aware that Mr F would need to fund his own care due to the amount of capital he had.
32. As the sum was in Mr F’s bank account, under Mr F’s name and no evidence to show the money did not belong to him, I cannot criticise the Council for arriving at the decision the money belonged to Mr F and treating him as having deprived himself of assets. When making that decision, the Council considered the factors contained in the statutory guidance and it explained it’s reasons in the appeal decision letter. There is no evidence fault.

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Final decision

There is no fault by the Council and it was entitled to include the £30,000 that was in Mr F’s bank account when assessing his finances to determine his contribution towards the cost of his care. I have now completed my investigation and closed this case.

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Investigator's decision on behalf of the Ombudsman