Summary: Mr X, who complains on behalf of his wife, says the Council is at fault in how it assessed the contribution she needs to make towards her care costs. We have found evidence of fault and made recommendations to address this and the injustice caused. The Council agreed to our recommendations and so we ended our investigation of this complaint.

The complaint

1. Mr X, who complains on behalf of his wife, Mrs X, says the Council is at fault because it took too long to complete her financial assessment and made errors when it did so. He also says the Council’s view that Mrs X deprived herself of capital to avoid paying care costs is wrong.

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The Ombudsman’s role and powers

2. 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)
3. 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. As part of the investigation I have considered the complaint and discussed it with Mr X. I made enquiries of the Council and considered its response. I had regard to the relevant legislation and guidance.
6. I set out my initial thoughts on the complaint in a draft decision statement and I considered Mr X’s comments in response.

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What I found

Charging for care

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 deciding how much a person must pay towards the cost of their care. There are no timescales set out within legislation or statutory guidance with regards to completing financial assessments.

Deprivation of assets

10. 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.
11. A person can deprive themselves of capital in many ways, for example by making a lump sum payment to someone else as a gift. 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.
12. In deciding whether the purpose of the deprivation was to avoid care fees, local authorities should consider:
• 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?
• Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?
13. 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.

Background

14. Mr and Mrs X both contributed to their living costs and purchases for their home, which they jointly own.
15. In July 2018 Mrs X had a stroke and was admitted to hospital. It was decided that she would require a placement in a care home on discharge from hospital.
16. Mr X approached the Council to see what, if any, assistance it would provide with the cost of her care. The Council asked Mr X to complete a financial assessment. However, he was unable to do so as he could not access the information required until he was awarded a Deputyship Order.
17. Mrs X moved into a care home (the home) on 20 August. The weekly fee for her care was £488.30. The Council said that it would pay her care fees while it waited to complete Mrs X’s financial assessment. It would pay the weekly fee less £138.10, which was the provisional amount it thought Mrs X would need to contribute towards her care.
18. In October Mr X was awarded a Deputyship Order and was able to progress with the financial assessment.
19. Mr X refused to disclose Mrs X’s capital in the assessment meaning that Mrs X would need to self fund her care costs.
20. The Council clarified that Mrs X would be self funding in February 2019 and it said it would stop paying her care fees. It said that the payments it had already made on behalf of Mrs X would need to be paid back to the Council.
21. The Council told Mr X he would need to pay the full weekly cost of Mrs X’s care from 26 May 2019, when it would stop making the payments on her behalf. It also said that Mrs X owed it £15,323 for fees it had paid on her behalf.
22. The Council stopped paying Mrs X’s care fees on 14 June.
23. In September Mr X asked for a new financial assessment to be carried out for Mrs X. The Council said it would put its invoice for the care fees it had paid on hold while the assessment was conducted.
24. Mr X provided the information required by the Council in late November. The Council requested further information about transactions made from Mrs X’s account in 2018 and 2019. The Council had all the information it required by February 2020.
25. The information provided showed that Mrs X had savings of £66,183 when she was discharged from hospital. The Council deducted the care costs it paid on Mrs X’s behalf of £15,323.
26. The assessment then deducted the amount that Mrs X had been paying from her savings towards her care since 15 June 2019. The cost from her savings was £108.88 per day.
27. Information from Mr X also said that Mrs X had paid for equipment to aid her recovery and for her share of a new boiler and second hand car (to be used by Mr X to visit Mrs X and assist with daily physiotherapy). The Council considered this expenditure to amount to deprivation of assets. It said that Mrs X could have sourced equipment for her recovery from the NHS. It also said that as Mrs X was in permanent residential care it was known that she would need care and that she would need to contribute to the cost of her care when the purchases were made. Therefore, it considered these costs, which amounted to £8,882 constituted deprivation of assets. It would therefore consider this sum to be notional capital.
28. For the above reasons the Council said Mrs X savings did not drop below the £23,250 upper capital limit until mid-February 2020 and so it said it would contribute to her care costs from then.
29. Mr X disputed the outcome of the financial assessment. He said the Council’s letter saying he had deprived the Council of Mrs X’s assets to avoid care costs was defamation of his character and wrong. He said that he had sought advice from the Office of the Public Guardian and his solicitor both of which said Mrs X’s funds could be used in this way. He also said that Mrs X had always contributed half towards household purchases and the upkeep of their home. Mr X also said the equipment required by Mrs X was not available on the NHS. He also questioned if the Council had deducted the £15,323 Mrs X owed the Council correctly so that her savings diminished at the rate they would have had she paid the fees at the time they were originally due.
30. The Council considered Mr X’s comments but upheld its original decision regarding the deprivation of assets.
31. Mr X remained unhappy and complained to the Council. In its response it said:

• It would reverse its decision on the equipment purchased for Mrs X. it accepted this was not available via the NHS. It therefore reduced the amount of notional capital by £1748 to £7134.
• Its view on the boiler and car remained unchanged.
• The Council had taken into account the £15,323 owed by Mrs X to the Council and the assessment was correct in this regard. It apologised for its error in continuing to pay Mrs X’s care home for longer than was necessary.

32. Mr X remains unhappy. He says the boiler and car purchases should not be considered deprivation of assets and has provided evidence that Mrs X contributed to household costs prior to her stroke. He also says Mrs X has been disadvantaged because of the Council paying fees to the care home on her behalf as it meant she could not claim Attendance Allowance and Pension Credit when it was doing so. He says it has affected the amount of Pension Credit she has been able to claim, once she was able to do so, as £15,323 remains in her account as the Council froze the invoice during the financial assessment process and review.

Analysis

Deprivation of Assets

33. It is not for me to say whether Mr X deprived the Council of capital to avoid care costs. My role is to consider whether the Council reached its decision in line with the Guidance.
34. The Guidance says Councils should consider two questions when determining if deprivation to avoid care costs has occurred. The first question is whether Mr X had a reasonable expectation of the need for care and support. The Council addressed this in its responses to Mr X’s complaints saying that Mr X was aware that Mrs X would need care and support as she was receiving care at the time of the purchases.
35. However, it is had not addressed the issue of whether avoiding care and support charges was a significant motivation in the timing and disposal of the assets. It has not addressed Mr X’s arguments that Mrs X should continue to contribute to the maintenance of their home. It has also not addressed Mr X’s reasons for needing a car to visit Mrs X regularly and provide physiotherapy that she would not otherwise receive. This is fault. Without clear consideration of this matter its decision is flawed. The Council needs to reconsider this issue.
36. The Council considered the second question of whether there was the reasonable expectation of needing to contribute towards her care needs.

Care fees owed by Mrs X to the Council

37. The Council has provided calculations of how it determined Mrs X financial assessment. I am satisfied the Council took into account the money Mrs X owed the Council when determining her financial assessment and that it did so in way that ensured Mrs X’s funds diminished at the rate they would have had she paid the fees to the care home herself at the time the fees were due.
38. Mr X says the Council should have stopped paying the home on Mrs X’s behalf earlier than it did. I do not consider the Council is at fault for paying the home up to outcome of the first financial assessment was known. Mr X was aware the Council was doing so and proceeded with the financial assessment once he was able to provide the information it required.
39. However, the Council should have ended the arrangement once it decided that Mrs X would be self-funding her care. This was clarified in February 2019. However, it did not stop paying the care home directly until 14 June 2019. This is fault by the Council. This has caused Mr X confusion and put him to the time and trouble of clarifying events and payments that would otherwise have been avoided.
40. Mr X says Mrs X’s was unable claim Pension Credit while the Council was paying care fees on her behalf. This is because her savings were too high to claim and so she has been financially disadvantaged. He also says the amount of Pension Credit Mrs X is entitled to currently is lower than it would be because she has not paid the care fees she owes to the Council as it froze the invoice while it completed Mrs X’s second financial assessment and Mr X’s subsequent review and complaint. While I acknowledge this argument I cannot ignore that Mrs X benefited from the Council paying for her care during this period at a rate that was significantly lower. She also benefited from any interest accrued because of having her savings in her account for longer. I consider this offsets the losses claimed by Mr X. It was also open to Mr X to pay the Council’s invoice while it considered her second financial assessment and review.

Agreed action

41. I recommended the Council reconsider its decision on deprivation of Mrs X’s capital addressing the issue of whether avoiding care costs was a significant factor in the timing and disposal of the capital. It should consider any information that Mr X provides to it in support of his argument that it was not deprivation including the details of any advice he received from the OPG and his solicitor.
42. It should also pay Mr X £200 in recognition of the time and trouble he has been put to in clarifying matters relating to the Council paying Mrs X’s care fees for longer than necessary.
43. The Council agreed to both recommendations. It should complete the agreed actions within eight weeks of the date of my decision.

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Final decision

44. I have ended my consideration of this complaint as the Council has agreed to my recommendations.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman