The Ombudsman's final decision:
Summary: The Council has said it will re-assess Mrs B’s finances and make a decision on her charges. Mrs B then has a fresh right of appeal/complaint if she does not agree with the outcome of that assessment. We have discontinued the complaint as we do not normally investigate complaints until the Council has had an opportunity to investigate the complaint and to respond to the complaint.
- Mr and Mrs B complained about the Council’s financial assessment and its decision to treat Mrs B as a self-funder for her care charges.
The Ombudsman’s role and powers
- We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- The law says that, before investigating a complaint, the Ombudsman must normally be satisfied that the council knows about the complaint and has had an opportunity to investigate the complaint and to respond to the complaint.
How I considered this complaint
- I have discussed the complaint with Mr and Mrs B’s representatives and the Council and I have considered the documents they have sent.
What I found
Law, guidance and policies
- The Care Act 2014 and the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s powers to charge for care and support.
- If a council is planning to charge a person for the care and support it is providing, it must carry out a financial assessment of the person’s capital and income to decide how much they should contribute.
- The funding rules are complex, but for the purpose of this complaint, it is sufficient to say that the upper capital limit for Council funding is £23,250.
Deprivation of assets
- Deprivation of assets means where a person has intentionally deprived or decreased their assets to reduce the amount they are charged for their care.
- Mr and Mrs B live in a property which they own. Mrs B started to receive a package of care from the Council in September 2019. The Council assessed Mrs B’s finances and said her savings of £33,000 were over the threshold of £23,250 and she was therefore not eligible for Council funded care.
- Mr and Mrs B appealed the decision. They said their home was funded by an interest only mortgage and the £33,000 was set aside to repay the capital once the mortgage came to an end in October 2030.
- The Council wrote to Mr and Mrs B in September 2020 and said the Council’s decision about Mrs B’s capital remained unchanged. However, the Council said that, if Mrs B used her capital to pay off part of her mortgage, then this would reduce the capital in the financial assessment and the Council would not treat this as a deprivation of assets.
- The Council wrote to Mr and Mrs B in December 2020 and said it had calculated that Mrs B’s capital fell to the threshold of £23,250 in February 2020. It had recalculated the debt on that basis and the outstanding debt was around £7,000 for care costs from September 2019 to February 2020.
- Mrs B then used her capital to repay part of the mortgage thereby reducing the capital she had in the bank.
- It is my understanding that Mr and Mrs B plan to send a new application for a financial assessment to the Council so that the Council can carry out a fresh assessment and make a new decision about the charges. If Mr and Mrs B are not satisfied with the outcome of that assessment, they have a fresh right of appeal/complaint.
- As there will be a fresh assessment and as Mr and Mrs B have a right of appeal/complaint, I will discontinue this investigation. The Ombudsman normally does not consider complaints until the Council has had an opportunity to investigate the complaint and to respond.
- I have discontinued the investigation as a fresh financial assessment will be carried out.
Investigator's decision on behalf of the Ombudsman