Summary: We will not investigate Mr B’s complaint that he was not told by the Council not to gift his mother’s, Mrs C’s money as she requested. This is because there is not enough evidence of fault with the actions taken by the Council to warrant an investigation by the Ombudsman.

The complaint

1. Mr B complained to the Council that it had not told him not to give away money from the sale of his mother’s, Mrs C’s, house as she asked him to as her attorney for property and finances. Mr B says the Council should not treat the money he gifted as notional capital and says it should inform him what will happen to Mrs C when her money runs out, not that it is reporting him to the Office of the Public Guardian (OPG).

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered the information and documentation Mr B provided. I sent Mr B a copy of my draft decision for comment.

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What I found

4. Mr B complained to the Council following its decision to treat money he gifted on behalf of Mrs C as notional capital in her financial assessment.
5. The Council says Mrs C was awarded the higher rate Attendance Allowance in December 2014. It says Mrs C received lifeline services from that date and it completed a financial assessment for Mrs C’s non-residential care in January 2015. Mrs C and her daughter were advised she would be required to contribute towards the cost of her care. The Council says Mrs B moved into residential care in February 2018. In March 2018 it sent Mr B a financial assessment form which he completed and returned in April 2018. The Council says Mr B contacted it in March 2018 advising Mrs C wanted to gift £60,000 from the sale of her property to her family. It says it advised Mr B any money gifted would be included in the financial assessment as notional capital.
6. The Care Act 2014 provides statutory guidance for councils, individuals, and their attorney’s regarding whether a person has deprived themselves of an asset to avoid paying for care. It 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.

13) It is also possible for a person to deliberately deprive themselves of income. For example, they could give away or sell the right to an income from an occupational pension.

14) It is up to the person to prove to the local authority that they no longer have the income. Where a local authority considers that a person may have deprived themselves of income, they may treat them as possessing notional income.

15) The local authority will need to determine whether deliberate deprivation of income has occurred. In doing so it should consider:

1. (a) was it the person’s income?
2. (b) what was the purpose of the disposal of the income?
3. (c) the timing of the disposal of the income (at the point the income was disposed of could the person have a reasonable expectation of the need for care and support?)

Care and support statutory guidance - GOV.UK (www.gov.uk)

7. Mr B appealed the Council’s decision to include the money Mrs C had gifted totalling £89,270 as notional capital. The Council said at the time Mr B gifted the money Mrs C was receiving care and support and it was reasonable for her to expect to use this money to pay for her care. It concluded Mr B on behalf of Mrs C had deprived herself of an asset for the purpose of avoiding or reducing care and support charges. Mr B says this was not the case and says Mrs C wanted to gift money to her family so she could see them enjoying the proceeds of her will before she died.
8. We could not say the Council’s decision to treat the money gifted at a time Mrs C knew she needed care and support as notional capital is fault. In the absence of fault, we cannot comment on the merits of decisions taken by Councils.
9. Mr B is concerned what will happen to his mother’s placement when all her available money if used on her care. The Council will decide whether it should recover the monies gifted and will need to assess Mrs C’s care needs when she can no longer pay for her care.
10. Mr B says he would not have gifted the money if he had known he was not allowed. The Council says it advised Mr B in March 2018 any monies gifted would be considered as notional capital and explained it is not its role to advise attorneys on gifting money.
11. As Mrs C’s Power of Attorney for property and financial matters, it is for Mr B to advise Mrs C of her ongoing financial obligations to pay for her care and explain to her the amount she wanted to gift could be perceived as notional capital by the Council.
12. Mr B is concerned the Council has reported him to the OPG. The Council says Mrs C said she wanted to gift £60,000 prior to the sale of her house. However, gifts amounting to £89, 270 were made by Mr B between 16 July 2018 and December 2019. The Council says given the amounts were more than what Mrs C had initially said she wanted to gift it has informed the OPG who may want to discuss this with Mr B. We cannot tell the Council not to inform the OPG of any concerns it may have.

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Final decision

13. We will not investigate this complaint. This is because there is not enough evidence of fault with the actions taken by the Council to warrant an investigation by the Ombudsman.

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Investigator's decision on behalf of the Ombudsman