The Ombudsman's final decision:
Summary: Mr X complains on behalf of Mrs T about the Council’s decision that she deprived herself of assets to avoid paying her care fees. Mr X says as a result, the Council has refused to fund Mrs T’s care fees which has caused Mrs T significant stress, uncertainty and financial loss. Mr X says the process has also affected his wellbeing. There was no evidence of fault in the way the Council made its decisions.
- Mr X complains on behalf of Mrs T, his mother.
- Mr X complains about the Council’s decision that Mrs T intentionally deprived herself of assets to avoid paying her care fees. As a result, the Council has refused to fund Mrs T’s care fees.
- Mr X says the Council’s refusal to pay Mrs T’s care fees has caused her significant stress, uncertainty and financial loss. Mr X says the process has also affected his mental health and wellbeing.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I discussed the complaint with Mr X and considered the information he provided. I also considered the information the Council provided in response to my enquiries.
- I sent Mr X and the Council a copy of my draft decision and considered the comments received prior to reaching a final decision.
What I found
- The Care Act, supported by the Care and Support Statutory Guidance, sets out how councils should work out how much service users should pay for services. The rules state service users who have over the upper capital limit (currently £23,250) are expected to pay for the full cost of their care.
- 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 a person(s) 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. 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?
- 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.
- The following paragraphs set out key events in this case and do not cover everything that happened.
- In April 2018, Mrs T gave a gift of £60,000 to her grandchildren and her great grandchildren. Mrs T retained £30,000 for herself.
- Mr X said at the time Mrs T made the gift, she was of good health and she lived independently. Mrs T was receiving monthly visits from her doctor at the time. Mr X said he informed Mrs T’s doctor of her plans to make the gift. Mr X said Mrs T’s doctor confirmed she had full mental capacity to undertake such plans.
- In November 2019, Mrs T moved into a nursing home due to her deteriorating health and mobility issues. The care was privately arranged.
- In 2020, Mrs T’s family submitted a funding application to the Council requesting financial assistance with Mrs T’s care fees. The Council considered relevant information provided by Mr X and completed a financial assessment for Mrs T.
- The Council rejected Mrs T’s funding application because it decided she had deliberately deprived herself of her assets in April 2018 to avoid her care costs. The Council considered Mrs T’s gift of £60,000 to her grandchildren was excessive and unusual with no evidence of contingency should Mrs T become unwell. The Council further explained given Mrs T was in her 90s and she was receiving monthly visits from her GP, there was an expectation some consideration would have been made for her future residential or nursing care. It also stated Mrs T could have made the gift using a Will. Therefore, the Council decided to treat Mrs T as though she still owned the £60,000. The Council refused to fund Mrs T’s care costs until her capital falls below the upper limit.
- Mr X disagreed with the Council’s decision and its refusal to fund Mrs T’s care costs. Mr X made a formal complaint. He said Mrs T could not have deliberately deprived herself of assets to avoid her care costs. This was because Mrs T made the gift eighteen months prior to her care fees funding application. He also said Mrs T was healthy and lived independently at the time with no indication she would require any kind of assistance or care. Mr X said he had discussed the option of making a Will with Mrs T but she was not willing to make one. Mrs T preferred to make the gift via bank transfers and he questioned if a person of any age had the choice to spend their money how they liked. Mr X said the Council’s refusal had caused Mrs T significant stress and financial loss.
- In response, the Council said whilst a person can spend their money as they wish, it is the Council’s responsibility to decide if such gifting amounts to deprivation of assets. The Council maintained its initial assessment findings that Mrs T gifting her grandchildren £60,000 eighteen months prior to receiving care and support services with no apparent benefit to her amounted to deprivation of assets. Also, that Mrs T retained £30,000 for herself signified she felt there was a possibility of future care and support needs. The Council upheld its decision not to fund Mrs T’s care fees.
- Mr X provided the Council with further explanation and he requested it reconsider its decision. Mr X explained the GP’s monthly home visit was the doctor’s suggestion and choice, and was not due to Mrs T’s vulnerability.
- The Council in its final response to Mr X maintained there was no evidence to overturn its initial decision. Mr X then made a complaint to the Ombudsman.
- The fact Mrs T gave a gift is not in dispute. The dispute is over the Council’s decision that Mrs T deprived herself of assets to avoid care fees when she made the gift to her grandchildren in April 2018.
- Mr X maintains Mrs T’s intention was not to avoid care costs because she was fit and healthy at the time with no indication of future care and support needs.
- The Guidance requires councils to consider whether there has been a deprivation of assets when it carries out a financial assessment. The Council discharged its responsibility when it completed Mrs T’s financial assessment. The Panel considered whether Mrs T 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 she made the gift. The Council made these considerations in line with the statutory guidance.
- The Ombudsman is not an appeal body. It is not for me to say whether the gift was deliberate deprivation, or what Mrs T’s intention was in giving it. My role is to decide whether the Council followed the Guidance and considered relevant information in how it reached its decision. In this case, evidence shows it did. I do not therefore find fault by the Council in the way it considered and reached its decision that Mrs T had deprived herself of assets to avoid care and support costs.
- I find no evidence of fault by the Council in the way it reached its decision.
Investigator's decision on behalf of the Ombudsman