Summary: The Council was at fault in the decision that there had been a deprivation of capital. There was also a delay in completing a financial assessment. The fault caused avoidable uncertainty, time and trouble and a loss of opportunity to have the case properly considered. The Council will review its decision, apologise and make payments set out in this statement.

The complaint

1. Mr X complained about Staffordshire County Council (the Council). He said it:
1. wrongly decided Mrs Y had deprived herself of assets to avoid care costs.
2. carried out no annual reviews of his late mother Mrs Y’s financial assessment
3. delayed in completing a financial assessment after Mrs Y’s most recent hospital admission.
2. Mr X said the Council’s fault caused his late mother a financial loss.

Back to top

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 must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

Back to top

How I considered this complaint

5. I discussed the complaint with Mr X and considered information he provided. I made enquiries of the Council and considered its response and information it provided.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant legal and guidance

7. Councils arrange care and support for adults under duties and powers in the Care Act 2014. The law allows councils to charge for care and support they arrange. Detailed regulations and guidance set out the financial assessment and charging process councils need to follow.
8. Adults who have capital over £23,250 have to pay the full cost of care a council arranges for them.
9. Regulation 22(1) of the Care and Support (Charging and Assessment of Resources) Regulations 2014 (the 2014 Charging Regulations) says

“the adult is to be treated as possessing capital of which the adult has deprived themselves for the purposes of decreasing the amount they may be liable to pay towards the cost of meeting their needs for care and support…’

10. Regulation 2 of the 2014 Charging Regulations says ‘the adult’ means the adult in respect of whom the authority is carrying out the financial assessment.
11. Annex E of Care and Support Statutory Guidance (CSSG) says

“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 explore 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.

What is meant by deprivation of assets?

6) Deprivation of assets means where a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care. This means that they must have known that they needed care and support and have reduced their assets in order to reduce the contribution they are asked to make towards the cost of that care and support.

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. (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?

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.”

What happened

Background: 2016-2017

12. Mrs Y had a stroke in 2016 requiring a stay in hospital. Before this, she lived in her own home. On discharge from hospital, Mrs Y moved in with Mr X and his family. In August 2016, the Council carried out a care assessment for Mrs Y and concluded she needed assistance with personal care and meal preparation. The Council arranged care to meet these needs which consisted of a carer visiting Mrs Y three times a day.
13. In September, the Council contacted Mr X, who assisted Mrs Y with her finances, to arrange a financial assessment to determine if she needed to contribute to the cost of her care.
14. A case file note said Mr X was advised if Mrs Y was no longer living in her own property, it would be counted as capital when determining if she needed to contribute towards her care costs.
15. A further file in November said Mr X advised the Council Mrs Y was selling her house and would be using proceeds from the sale to invest in his home. The note said that Mr X was advised this may be considered deprivation of assets.
16. Mrs Y’s home sold in March 2017 for £171,020. The Council completed her financial assessment shortly after having received all the required information from Mr X. As Mrs Y had savings over £23,500 it concluded she would need to pay the full cost of her care which was about £700 a month. The Council continued to arrange Mrs Y’s care and to send invoices to Mr X for the full cost.
17. Following the sale of her home, Mrs Y gave Mr X £100,000 towards the cost of his home. She also spent a further £50,000.

2019-2020

18. In February 2019, the Council learned Mrs Y’s savings had reduced to just under £12 000. It wrote to Mr X and Mrs Y asking for details of her capital including details of where the proceeds from the sale of her home had gone. They did not respond and the Council did not pursue the matter further. Accordingly, Mrs Y continued to pay the full cost of her care.
19. In October Mrs Y had another fall and a mini-stroke and was admitted to hospital for around six weeks.
20. The Council began a new financial assessment in October. Mr X said he told the finance officer Mrs Y only had £8000 savings left. The finance officer advised him, if that were the case, Mrs Y would likely not need to contribute towards her care costs.
21. Mrs Y left hospital in late November. The Council carried out a new care assessment and concluded her mobility had reduced while in hospital. She now required visits from two carers to help with lifts. Mrs Y would also need an additional visit from a carer each day. The new care package started at the beginning of December.
22. Mrs Y received a bill of £2831.31 for her care in January 2020. Mr X contacted the Council querying the charge. He said, as he had not received any further information about the financial assessment, he thought Mrs Y’s care was free.
23. The Council wrote to Mrs Y asking for further information about her finances so it could complete the financial assessment. It specifically sought information about the proceeds of the sale of her home and about a withdrawal of £50 000.
24. Mrs Y received another invoice for £1795.16 in February.
25. Mr X provided all the information required by the Council to complete Mrs Y’s financial assessment in early March.
26. The Council wrote to Mrs Y in mid-March saying she had deprived herself of assets when she gave Mr X £100,000 towards his mortgage and a further £50,000 in unevidenced withdrawals. It said it would be treating Mrs Y as though she still had these assets and so she would need to pay for the full cost of her care.
27. Mr X objected to the Council’s decision and complained. He said the decision was wrong and that Mrs Y had not purposefully given away money to avoid paying for care costs. He also said the Council had taken too long to complete a financial assessment and he would have made alternative arrangements for her care, if he had been aware of the charges.
28. The Council responded to Mr X’s complaint saying
29. ‘you have confirmed your late mother moved in with you in 2016 because she needed help with her personal care. Her house was sold in 2017 and you have provided evidence that the proceeds of the sale were £171 000. You have also provided evidence showing £100 000 of these proceeds were used to pay off some of your mortgage. I also see further transactions on the bank statements for nearly £50 000 into your account for various other reasons. I am satisfied you knew your late mother needed care and support before her assets were transferred to you. You stated the money was transferred to you as a payment towards the sacrifices you were making to accommodate her. I understand her desire to recompense you for this but to hand over the majority of the proceeds from the sale of her home was excessive. I am satisfied this has correctly been considered as a deprivation and you have been notified your late mother’s savings should have been sufficient to pay for the care she has received.’
30. The response went on to apologise for the delay in completing Mrs Y’s financial assessment but said she was advised she was responsible for her care costs while the assessment was conducted. It said the officer Mr X spoke with in October would have taken the information provided by Mr X in good faith and would not have sought information on former assets as this was a matter for its financial team.
31. Her care package remained in place until her death in April.
32. Mr X was unhappy with the Council’s position and did not pay the outstanding invoices of about £9000. He complained to us in August 2020.

Was there fault?

The Council wrongly decided Mrs Y had deprived herself of assets to avoid care costs.

33. It is not for us to decide whether Mrs Y deprived herself of capital to avoid care costs. Instead, our role is to decide whether the Council reached its decision in line with the 2014 Charging Regulations and applicable guidance.
34. The Council’s decision was flawed as it did not correctly apply Regulation 22 of the 2014 Charging Regulations or CSSG. Regulation 22 and CSSG Annex E required the Council to consider whether Mrs Y deprived herself of assets in order to avoid care charges. The Council’s complaint response said it was satisfied there had been a deprivation because he (Mr X) knew his late mother required care when she transferred the money. Mr X’s state of knowledge was and is irrelevant. The Council applied paragraphs 6 and 11 of Annex E of CSSG and Regulation 22 to the wrong person.
35. The Council assumed large transfers must mean there had been a deprivation, but its decision was not a correct application of the law and guidance set out the previous section of this statement. In particular, the statement that Mrs Y had handed over an excessive amount is a subjective analysis which does not appear in Regulation 22 or in CSSG.

The Council carried out no annual reviews of his late mother Mrs Y’s financial assessment.

36. I do not uphold this complaint and there is no fault because:
• Mr X said the Council should have undertaken a financial assessment for Mrs Y before her care needs increased in 2019. As Mrs Y was a full cost payer due to her capital, it was a matter for her and/or Mr X to inform the Council when her savings were close to £23,250.
• The Council learned Mrs X’s savings had decreased to £11,499 in early 2019. In response, it contacted Mrs Y and Mr X and sought information to help it assess her finances, but they did not supply this. I regard this as good practice by the Council and there was no requirement for it to chase further. A financial assessment for Mrs Y would have already been completed before she went into hospital if Mr X and Mrs Y had engaged with the Council when it sought information for this purpose in early 2019.

The Council delayed in completing a financial assessment after Mrs Y’s most recent hospital admission.

37. The Council started a fresh financial assessment while Mrs Y was in hospital. It did not complete this and Mr X’s contact querying the bill in January prompted the Council to write to him for more information. While Mr X did not provide this information until March, I consider there was a delay in progressing the case between October and January. This was fault.
38. Mr X suggested he would have made other arrangements had he known the cost of Mrs Y’s care sooner. While I acknowledge Mrs Y and Mr X did not know the exact amount of the contribution when the increased care package started in November, they were aware of the cost from the first invoice in January. Although the financial assessment was not completed until March, Mr X and Mrs Y decided to continue with the care package. This indicates they would not have made other arrangements had they known about the charge sooner.

Injustice

39. The Council’s delay caused avoidable uncertainty about the exact charge for Mrs Y’s care. It also caused Mr X avoidable time and trouble in complaining. The failure to make a decision on deprivation in line with the law and guidance caused a loss of opportunity to have the case properly considered.

Agreed action

40. To remedy the injustice, within one month, the Council will:
• review Mrs Y’s case to identify why her financial assessment was not progressed until late January 2020. It will then explain what actions it will be taking to ensure there are no similar incidents.
• waive Mrs Y’s estate the amount of one month’s care fees in recognition of the delay in completing her financial assessment and the avoidable uncertainty this caused.
• review its decision on the deprivation of capital, ensuring it applies Regulation 22 of the Charging Regulations and Annex E of Care and Support Statutory Guidance properly and fully. If the decision is reversed, then the Council needs to go on a complete a full financial assessment and recalculate the outstanding money owed by the estate. If the decision is unchanged, the Council needs to give Mr X a detailed written decision.
• apologise to Mr X and makes him a symbolic payment of £100 to reflect his avoidable time and trouble in pursuing a complaint.
41. I will require evidence of compliance.
42. I note the Council’s debt team had already agreed a reduced figure of £3059.91 and a monthly repayment plan of £60. It told me it will honour this arrangement. For the avoidance of doubt, the Council is still required to take the agreed actions in paragraph 40 and this should result in a debt which is further reduced.

Back to top

Final decision

43. The Council was at fault in its decision that there had been a deprivation of capital. There was also delay in completing a financial assessment. The fault caused injustice as described above. The Council will review decisions, apologise and make payments set out in this statement.
44. I have completed the investigation

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman