Summary: The Council considered all the relevant information about the disposal of Mrs X’s property before it reached a decision that she should pay her own care charges. It considered Mrs Y’s appeals properly.

The complaint

1. Mrs Y (as I shall call the complainant) complains the Council did not consider the correct information when it decided her mother had deliberately deprived herself of her assets in order to avoid care home charges.

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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 the information provided by Mrs Y and the Council. Both Mrs Y and the Council had an opportunity to comment on an earlier draft of this statement, and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
6. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
7. The Care and Support Statutory Guidance says (Annex E, para 3 - 23) “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.”
8. The guidance says, “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. (a) 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. (b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

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”.

9. 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.
10. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA).” An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.
11. There are two types of LPA:

Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.

Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

What happened

12. The Council’s care records from 2015 record that Mrs X needed care and support at home after she fractured her femur. Notes from a social worker’s visit in June 2015 state “(Mrs X) is living with a diagnosis of dementia, she is finding it hard to accept any support”. The Council put in place a package of care to support Mrs X while she recovered from surgery. Notes of a follow-up call in July 2015 record, “Consent obtained to contact daughter … (support plan states (Mrs X) has dementia.”
13. Mr X died in 2016 without leaving a will. The house, which was in his name, would automatically have been inherited by Mrs X but in December 2016 Mrs X signed a Deed of Variation to enable her daughters to own the property.
14. Mrs X suffered a stroke in 2018. She went into permanent residential care in January 2019.
15. The Council started a financial assessment for Mrs X. In March 2019 an officer wrote to Mrs Y, who had LPA for Mrs X. The officer asked why the house had been transferred to the possession of Mrs Y and her sister. She said she also understood Mrs X had a diagnosis of dementia and asked for confirmation of the date of diagnosis.
16. Mrs Y responded that a solicitor had acted on her mother’s behalf and she would contact him for information. She said her mother had not been diagnosed with dementia. She wrote again to say her father’s wish had been for herself and her sister to inherit the property but he had never written a will. She said Mrs X then wanted to make it easier to transfer the property at her death and avoid probate so they decided on a Deed of Variation.

The decision

17. In May 2019 the Council wrote to Mrs Y explaining it had decided to include the value of the property in the assessment of Mrs X’s finances.
18. Mrs Y argued against the decision. Mrs X’s GP said there was no confirmed diagnosis of dementia before 2018. The solicitor who handled the Deed of Variation wrote in support of Mrs Y to say it was “quite clear” Mrs X had the capacity to understand the implications of what she was signing in 2016. Mrs Y said her mother had been described as only having mild cognitive impairment before 2018.
19. The Council considered Mrs Y’s argument at its Decision-Making Panel in August 2019. It took into account that Mrs X had received Attendance Allowance since 2015 and that there were records to suggest Mrs X was living with dementia from then. The Council wrote to Mrs Y and confirmed its decision that (according to the test set out in the statutory guidance) Mrs X was aware at the time she signed the Deed of Variation that she might need care in the future, and had deliberately disposed of the assets in order to avoid care charges.

The appeals

20. Mrs Y appealed against the Panel’s decision. She said the Attendance Allowance had been awarded in 2007 for mobility reasons, not because her mother had dementia. The Council considered her appeal at a Review Panel in November. It decided it needed extra information before it reached a final decision and asked Mrs Y for authority to obtain Mrs X’s medical records for the period from June 2015 onwards.
21. Mrs Y held power of attorney for Mrs X’s finances but not for health and welfare. The medical records could not be released to her or the Council.
22. The Council’s Review Panel considered the matter again in June 2020. The Council wrote to Mrs Y in July. It said Mrs X could have avoided probate by making a will rather than a Deed of Variation. It said although there was no formal diagnosis of dementia before December 2018, its records stated more than once that Mrs X had been ‘living with dementia’ since 2015. It noted Mrs Y was aware of the financial regulations in respect of property value as she had been financial agent for Mr X in respect of both residential and non-residential care charges.
23. The Council concluded there was evidence of deprivation. It said the Council had paid the care charges so far to prevent risk to the placement, but Mrs X now owed the care home fees.
24. Mrs Y complained to the Ombudsman. She said the Council had no evidence to substantiate its decision which it sometimes explained as due to her mother receiving Attendance Allowance, and at other times due to undiagnosed dementia.
25. The Council’s records show the financial assessment form for support in 2015 (signed by Mrs X) noted she was ‘living with dementia’. The hospital discharge note for 19 June 2015 after Mrs X fractured her femur included ‘dementia’ in the section “significant medical conditions”. Her functional assessment in hospital prior to discharge includes the comment ‘known dementia’.
26. The Council says the letters to Mrs X after the initial decision did not fully reflect the Panel’s decision making: it says however the reason why Attendance Allowance was mentioned as well as dementia was because it understood Mrs X would be eligible for higher rate Attendance Allowance after her diagnosis of dementia in 2018, and wanted to ensure she maximised her benefit entitlement.
27. Mrs Y says in her view the Council has not properly acknowledged that the difference in Mrs X’s condition came about as a result of the stroke she suffered in 2018 and not the mild cognitive impairment which she was living with previously.

Analysis

28. The Council considered the evidence available to it and sought additional information when Mrs X appealed the decision. It sought appropriate legal advice.
29. There were two separate sources concerning Mrs X’s possible dementia which the Council considered: its own social work records and the separate records made in hospital in June 2015 which listed ‘known dementia’ as one of Mrs X’s conditions.
30. The Council also took into account that Mrs X had chosen to make a Deed of Variation gifting the property to her daughters rather than a will, when either course of action would have achieved the outcome Mrs Y said was her mother’s wish, to avoid probate costs.
31. The Council was entitled to take the decision that Mrs X had deprived herself of assets to avoid charges.
32. It is not the role of the Ombudsman to question the merits of a decision which was properly taken.

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Final decision

33. There was no fault by the Council in the way it reached its decision. The investigation is complete.

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Investigator's decision on behalf of the Ombudsman