Summary: The Council was not at fault for declining to fund Mrs Y’s care fees. The Council followed correct procedure and considered relevant evidence when reaching the decision that the transfer of Mrs Y’s house was a deprivation of assets. We have not upheld Mr X’s complaint.

The complaint

1. Mr X complained on behalf of his mother, Mrs Y that the Council incorrectly applied a deprivation of assets to her financial assessment. This resulted in Mrs Y not being eligible for funding from the Council for her care fees.

Back to top

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)

Back to top

How I considered this complaint

4. I have considered Mr X’s complaint and the Council’s response to him and to my enquiries.
5. 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

The Law

Financial assessment

6. The legal framework for charging is set out in sections 14 and 17 of the Care Act 2014. The Council must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person.
7. A financial assessment is primarily to determine whether a person qualifies for funding towards the cost of their care. A person’s income and capital are considered. Capital includes savings, investments, and property. A person would not qualify for funding it they have more than £23,250 in capital.
8. For a property to be included in the financial assessment, the person must be shown to have a share in its value, called a ‘beneficial interest’ meaning they have a right to a share of the sale proceeds if sold.

Deprivation of assets

9. A council can look at whether a person has intentionally decreased their overall assets, to reduce the amount they contribute towards the cost of care services. This is called deprivation of assets. The council must show that the person knew they may need care and support in the future when they caried out this action. It is therefore an evidence-based test of both foreseeability and intention.
10. The law says transferring a capital asset does not necessarily mean it is not considered in a person’s financial assessment. It can still be ‘notionally’ included in the calculation. ‘Notionally’ means that, even though a person may not have that capital asset anymore, they are treated as if they still do possess it.
11. Deprivation covers a broad range of ways a person might transfer a capital asset out of their possession, these include:
• A lump-sum payment to someone else, for example as a gift.
• The title deeds of a property have been transferred to someone else.
12. The guidance states it is unreasonable for a council to decide that a person has disposed of an asset to reduce the level of care charges payable if, at the time of the disposal, the person was fit and healthy and could not have foreseen a need for care and support.

What happened

Dementia diagnosis February 2017

13. In February 2017, Mrs Y was diagnosed with vascular dementia. Mrs Y’s GP had referred her to the Memory Service in November 2016. The referral stated that Mrs Y was a 90 year old lady with increasing frailty, and family and carers had raised concerns about her memory. Mrs Y’s family said her memory had not been good for 3 to 4 years and there had been a general decline.

Sale of Mrs Y’s house March 2017

14. Mrs Y moved out of her house in March 2016 to live with her partner in sheltered accommodation. Her family said that she told them to “sell the house and split the money as it was in her will anyway”.
15. The family said it did not sell the house until March 2017 as they wanted to be sure that Mrs Y did not want to return to it.

Discharge to care from hospital December 2018

16. After a stay in hospital, Mrs Y was discharged in December 2018. The Council said she was placed in a nursing home initially for a four-week assessment period. It said the Council funding Mrs Y’s placement until it had completed a full social care assessment. This was to allow Mrs Y a period of recovery, stabilisation and assessment so a suitable decision could be made on her long term care and support needs.
17. I have seen a copy of the leaflet that was given to Mrs Y before she was discharged from hospital. This explained that she would be moving to a temporary placement and her needs would be assessed by a social worker. It stated that the placement would be free up to four weeks and if her stay exceeded this, she may need to pay. It set out the different charges that could apply.
18. The Council said Mrs Y’s family signed a ‘cost of care’ letter. This included the Council’s fees and charges for different types of care as well as information about client contribution, top up fees and deferred payments.

Health Care Assessments January-April 2019

19. During the first four weeks that Mrs Y was in her temporary placement, the NHS carried out a Continuing Health Care initial assessment. Mrs Y met the criteria for a full assessment. The full assessment was completed on 30 January 2019 but the NHS did not notify the Council or Mrs Y’s family of the conclusion until April 2019. During this period, the Council chased the NHS and continued to fund Mrs Y’s placement.
20. The outcome of the assessment was that Mrs Y was not eligible for Continuing Health Care funding and she would need to self-fund her placement. The Council informed Mrs Y’s family on 25 April of the assessment’s outcome and that Mrs Y would need to self-fund her placement from 26 April 2019. It also advised the family that it could appeal the decision.
21. I cannot investigate the process or outcome of the continuing health care assessment as the NHS is not within our jurisdiction.

Council panel declined application of funding of Mrs Y’s care

22. In June 2020, the Council wrote to Mrs Y’s family. It said a Management Panel had considered Mrs Y’s case and had declined the family’s application for funding. It said this was because the transfer of Mrs Y’s house was being treated as deprivation of assets.
23. It set out the reasons why it believed this to be the case. These were:
• Mrs Y had a dementia diagnosis in February 2017
• It is recorded that, prior to that diagnosis, Mrs Y suffered memory issues for 3-4 years
• Mrs Y’s property was sold on the 10/3/2017 for £120,000.00. She was 90 years of age and case notes record a high probability of pending care and support needs.
• The property transfer could have been affected in a will.
24. It said the Council concluded that the explanations provided by the family did not reasonably explain the property transfer. It believed a significant motivation in transferring the property would have been to protect the asset from any future possible means tested care fees.
25. Mr X said he had been told he could speak at the panel meeting but the Council did not invite him. In response to my enquiries, the Council confirmed it does not invite service users, representatives or family to its deprivation panel meetings.
26. The Council said it believed that Mr X may have been referencing contact by a social worker in June 2020. This was regarding a safeguarding telephone case conference that was due to take place on 17 June 2020 to which Mr X would have been invited. It said this conference was cancelled by Mr X who said he was seeking legal advice.

My findings

27. The Council considered all the information available when reaching its decision to treat the transfer of Mrs Y’s house as a deprivation of assets. It was a decision the Council was entitled to make and it was reached correctly.
28. The Council was able to show that Mrs Y (and her family) knew she may need care and support in the future when she transferred the house to her son and daughter. She had been experiencing memory loss and increased frailty and was diagnosed with dementia shortly before the family sold her house.
29. The Council was satisfied that Mrs Y (and her family) had a reasonable expectation of needing to contribute to the cost of her care needs. This is because Mrs Y’s partner had received chargeable residential care that had been dealt with by Mrs Y’s family.
30. The Council was acting in line with the law when it notionally included the value of Mrs Y’s house in its financial assessment calculations.
31. The Council was not at fault in how it reached its decision to treat the transfer and subsequent sale of Mrs Y’s house as a deprivation of assets.

Back to top

Final decision

32. I have not upheld Mr X’s complaint. I have found no fault with the Council’s actions in relation to its determination that Mrs Y transferred her house to family members to avoid future care costs.

Back to top

Investigator's decision on behalf of the Ombudsman