Summary: Mr and Mrs X complain the Council hasn’t dealt properly with a financial assessment for Mrs Y. The Council is not at fault.

The complaint

1. The complainants, who I shall refer to as Mr and Mrs X, complain that the Council hasn’t dealt properly with a financial assessment for Mrs Y because it has wrongly considered a financial gift from Mrs Y to them as notional capital.
2. Mr and Mrs X say they cannot afford to pay for Mrs Y’s care.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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 spoke to Mrs X and considered the details of their complaint as well as the Council’s response. I considered documents sent by the Council and:
• The Care and Support Act 2014 (“the Act”)
• Care and Support Statutory Guidance (“the Guidance”)
6. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
8. The law states that people who have over the upper capital limit (£23,250) are expected to pay the full cost of their care. They are known as self-funders. Once their capital has reduced to less than the upper capital limit, they must only pay an assessed contribution.
9. The Act and Guidance set out the rules local authorities must follow when undertaking a financial assessment to decide how much a person must pay towards the cost of their care. The Act requires local authorities to:
• ensure there is sufficient information and advice available to ensure people can understand any contributions they are asked to make.
• make the person or their representative aware of the availability of independent financial information and advice.
10. The Council’s website has information on financial assessments for social care. This says, “If you give away savings and assets or put them in someone else’s name - known as ‘deprivation of assets’- to reduce the amount you pay towards your care, we may treat you as if you still had them and charge you.” The website has a link to a factsheet Care and Support at home or in the community - paying for your care which refers to a further factsheet Paying for social care - capital and gifting of assets. The same page also says: “It is also recommended that you seek independent financial advice” and has a link to information about how to find an independent financial advisor.

Charging for care

11. The Guidance says people should be able to spend the money they have saved as they wish. However, it is also important people pay their fair contribution towards their care and support costs. Local authorities should ensure people are not rewarded for trying to avoid paying their assessed contribution. Councils must therefore assess a person to determine whether they have intentionally deprived themselves of assets to avoid paying care fees. A person can deprive themselves of capital in many ways, for example by making a lump sum payment to someone else as a gift.
12. Local authorities should not assume someone has intentionally deprived themselves of assets to reduce their contribution to care fees. The Guidance says there may be other valid reasons. In deciding whether the purpose of the deprivation was to avoid care fees, local authorities should consider:
13. 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?
14. Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?
15. If a local authority decides a person has deprived themselves of assets to avoid paying care fees, it may treat those assets as if the person still owns them (notional capital) in its financial assessment.

What happened

16. Mrs Y began to receive long term residential care in November 2011 and paid for her residential care as a private arrangement.
17. Mrs Y gave a gift of £65,000 to Mr and Mrs X in late 2012.
18. In 2019, the Council completed a financial assessment for Mrs Y. Mr and Mrs X held power of attorney for Mrs Y regarding her finances.
19. Mr and Mrs X appealed against the Council’s financial assessment because:
• The costs for her care were wrong;
• Mrs Y believed she would have sufficient money to pay for her care for the rest of her life when the gift was made;
• They cannot afford to fund her care costs; and
• They took legal advice when accepting the gift but are unable to contact the solicitor because they are no longer practising.
20. The Council took account of the evidence provided by Mr and Mrs X of a change in Mrs Y’s care costs and amended its calculations as a result. It did not change its decision about the £65,000 being considered as notional capital.
21. Mr and Mrs X submitted a stage two appeal against the Council’s decision saying they did not feel the outcome had been fairly assessed because:
• The gift had been given as an “inheritance”.
• Mrs Y thought she would have sufficient funds for her care due to her health conditions;
• Mr and Mrs X could not afford to pay Mrs Y’s fees;
• Mrs Y should be able to be provided with some support at her age; and
• The gift was not given to intentionally reduce her capital.
22. The Council considered Mr and Mrs X’s stage two appeal but did not change its decision.

My Findings

23. That Mrs Y made the gift is not in dispute. The only dispute is over the Council’s decision that she did this deliberately to avoid care costs.
24. It is the Council’s responsibility to decide whether Mrs Y has deliberately deprived herself of capital to avoid care costs. The Ombudsman is not an appeal body. It is not for me to say whether the gift was deliberate deprivation, or what Mrs Y’s motivation was in giving it. My role is to decide whether the Council followed the Guidance and considered relevant information in coming to its decision. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a person disagrees with its decision.
25. The Guidance requires councils to consider whether there has been a deprivation of assets when it carries out a financial assessment. During the financial assessment, the Council spoke to Mr and Mrs X about the reason for some of Mrs Y’s expenditure. They explained about the gift and the Council was therefore required to consider whether this was a deprivation of assets.
26. The Guidance says gifts to family can be treated as deprivation of capital. However, any deprivation must be with the intention of reducing the amount they are charged for their care. In determining this councils must consider two questions:
• in December 2012 could Mrs Y have had a reasonable expectation of the need for care and support?
• in December 2012 did she have a reasonable expectation of needing to contribute to the cost of her eligible care needs?
27. I have reviewed the Council’s decision making. It has considered both questions and found Mrs Y did have these expectations.
28. Mr and Mrs X say Mrs Y’s motive was not to avoid care costs, which she was paying, because she suffered from medical problems which meant she did not foresee living long enough for her capital to be exhausted through her care costs. Mr and Mrs X has not provided any information to the Council or the Ombudsman of any medical opinion to support this.
29. The Council considered whether Mrs Y had a reasonable expectation of the need for care and support and of the need to contribute to the costs of her care at the time the gift was made. These were the considerations it needed to make and I have seen no evidence of fault in the way it made them. This is not fault by the Council.

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Final decision

30. I have not found fault by the Council. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman