Summary: Mrs X complains on behalf of her mother, Mrs Y, about the Council’s decision that she deprived herself of assets to avoid paying towards her care costs. Mrs X says the Council did not fully consider all relevant factors and says the Council’s actions have caused her avoidable distress. We found fault in this matter and the Council has agreed to apologise to Mrs X and carry out a further review of its financial assessment.

The complaint

1. Mrs X complains on behalf of her mother, Mrs Y, about the Council’s decision that she deprived herself of assets to avoid paying towards the cost of her care. Mrs X says the Council did not fully consider all the factors regarding Mrs Y’s disposal of capital.
2. Mrs X also complained the Council did not allow her to attend the Stage 2 appeal hearing and incurred delays during the financial assessment. She also complained the Council did not provide her with a record of the appeal hearing.
3. Mrs X says the Council’s actions caused her avoidable distress and meant her mother is unable to afford the cost of her care package.

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What I have investigated

4. I have investigated the complaint referred to in paragraph one of this statement. The final section of this statement explains my reasons for not investigating the complaints referred to in paragraph two.

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The Ombudsman’s role and powers

5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint.

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

6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
7. 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)
8. 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

9. I have discussed the complaint with Mrs X and considered the information she provided.
10. I have made enquiries to the Council and considered the information it provided.
11. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Lasting Power of Attorney

12. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

Legal and administrative background and charging

13. The Care Act 2014 introduced a single framework for assessment and support planning.
14. 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. Under those rules, service users with capital or income above upper limits have to meet the full costs of care services. The capital upper limit is £23,250.

Deprivation of assets

15. Paragraph 8.27 of the Statutory Guidance says:

“People with care and support needs are free to spend their income and assets as they see fit, including making gifts to friends and family. This is important for promoting their wellbeing and enabling them to live fulfilling and independent lives. However, it is also important that people pay their fair contribution towards their care and support costs”.

16. Annexe E to the Statutory Guidance says:

“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. [But]…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.”

“Deprivation of assets means where a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care. This means that they must have known that they needed care and support and have reduced their assets in order to reduce the contribution they are asked to make towards the cost of that care and support.”

17. Annexe E also says:

“There may be many reasons for a person depriving themselves of an asset. A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:

(a) 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?

(b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?”

The Council’s Fairer Contributions Policy

18. The Council’s Fairer Contributions Policy says “It is up to a Service User to prove that they no longer own an asset. Where the Service User has disposed of an asset they may be treated as still being in possession of this asset if he/she intentionally deprived or decreased their overall assets to reduce the amount they pay towards their care. Guidance will be taken from the Care Act 2014.” (Sheffield City Council Fairer Contributions Policy, April 2015 (updated April 2021) 6.6.1)
19. The policy also says “Disputes regarding deprivation of capital will be reviewed within the appeals process”. (Sheffield City Council Fairer Contributions Policy, April 2015 (updated April 2021) 6.6.3)

The Council’s Social Care Accounts Service terms of reference

20. The terms of reference sets out the two stage process for service users to request a reconsideration of the Council’s financial assessment.
21. Service users may appeal initially to the Decision-Making Panel (DMP). If service users wish to appeal decisions made by the DMP, they may refer their case to the Revisit & Review Panel (R&R).
22. The terms of reference says the DMP and R&R shall give full written reasons for their decisions.

Background

23. Mr and Mrs Y lived together in their own home, Property A.
24. Mr Y received adult social care due to his health issues but was not required to contribute towards the cost of his care package.
25. In 2012, Mr Y passed away. Mrs Y continued to live in Property A.
26. In 2014, Mrs Y registered a Lasting Power of Attorney (LPA) which named Mrs X as her attorney.
27. Later that same year, Mrs Y sold Property A and moved into Mrs X’s home. Shortly after the sale of Property A, Mrs Y gifted approximately £137,000 to family and friends. This included placing £50,000 in a Trust held in respect of Mrs X’s property. Mrs X says Mrs Y was physically and mentally independent at this time.
28. In 2016, Mrs Y moved to her own accommodation. In June 2016, the Council carried out a care needs assessment for her which identified that Mrs Y had some health conditions and was eligible for support.
29. In July 2016, the Council carried out a financial assessment for Mrs Y to work out how much she would need to pay towards the cost of her care. Mrs Y told the Council she had gifted over £100,000 from the sale of Property A. The Council told Mrs Y it needed to see evidence of the gifts and said Mrs Y would be required to pay the full cost of her care package until this was received.
30. Mrs X says Mrs Y found the financial assessment process very distressing. She said Mrs Y told the Council she did not want to go ahead with the care plan.
31. In September 2016, the Council told Mrs Y she was a full fee payer unless she provided evidence of the disposal of her assets. Mrs X says Mrs Y ignored the Council’s decision because she no longer wanted to receive the Council’s care package.
32. In October 2016, Mrs Y moved out of Mrs X’s home into Council accommodation.

What happened next

33. In July 2019, Mrs Y began to receive care visits at home twice a day.
34. In September 2019, the Council sent Mrs Y a financial assessment form to complete. Mrs Y returned the form to the Council in October 2019.
35. The Council says it wrote to Mrs Y in January 2020 to ask for further information about the gifting of her capital. Mrs X says Mrs Y did not receive this correspondence.
36. In February 2020, following a deterioration in her health, the LPA for Mrs Y was activated, making Mrs X her attorney for financial matters.
37. The Council wrote to Mrs X in March 2020. It said Mrs Y was required to pay for her care package because she had not provided the information it had requested regarding her capital.
38. That same month, Mrs X asked the Council to stop the care package as she said Mrs Y had no means of paying for her care. Mrs X says the Council told her it could not stop the care package because it considered Mrs Y to be at risk without it.
39. The Council told Mrs X it required evidence in order to go ahead with a financial assessment.
40. Mrs X says Mrs Y was admitted to hospital in March 2020. She says Mrs Y moved to a rehabilitation centre shortly after and returned to her home with an increased care package in May 2020.
41. In June 2020, Mrs X’s husband, Mr X, contacted the Council. He said Mrs Y sold her house with the intention of being cared for by Mrs X and himself as she got older. He said there was no indication Mrs Y would need care when she sold her house in 2014 and said Mrs Y’s main motivation for selling Property A was due to grief related to her husband’s death. Mr X said Mrs Y wanted some good to come after her husband’s death and said she had supported her daughter-in-law following the death of Mrs Y’s son. He said Mrs Y gave the proceeds of the sale of her house to her grand-children, daughter-in-law and some family friends. Mr X said Mrs Y had also invested £50,000 in Mr and Mrs X’s property via a deed of trust. He said although the care assessment in 2016 identified Mrs Y was eligible for care, she declined to receive support at that time. Mr X provided the Council with a copy of the deed of trust and copies of Mrs Y’s bank statements.
42. Mr X contacted the Council on several occasions to ask for an update. The Council responded in October 2020 and apologised for the delay.
43. In October 2020, Mrs Y was re-admitted to hospital and was discharged to a care home in November 2020.
44. The Council provided its financial assessment decision letter on 4 December 2020. It apologised for the delay and said this was caused in part due to the impact of the COVID-19 pandemic on the Council’s services.
45. The Council said Mrs Y sold Property A in October 2014 and then gifted about £110,000 to family members. It acknowledged the deed of trust set up with Mr and Mrs X. The Council said Mrs Y did not appeal in 2016 when it told her it considered she had capital in excess of £23,250. It referred to Mr X’s explanation that Mrs Y sold her property with the intention of being cared for by Mr and Mrs X, and said it concluded this demonstrated a reasonable expectation Mrs Y would need care and support in 2014.
46. The Council said it considered Mrs Y would have known she would be required to contribute towards care costs because she was involved with her late husband’s financial assessment in 2011. The Council said it considered the avoidance of care charges was a significant motivation for the disposal of money by Mrs Y and said Mrs Y remained a full fee payer.

Mrs X’s request to the Decision-Making Panel

47. Mrs X wrote to the Council on 7 December 2020 and asked the Council to review its decision. She said she was disappointed the Council had not spoken to her during its consideration and complained about delays during the process.
48. Mrs X said she wanted to explain the motivation behind some of the decisions taken by Mrs Y and the family and gave details of the events before and after the sale of Property A. She said Mrs Y placed £50,000 in a Trust in respect of Mrs X’s property because she had intended to stay there as a permanent long-term solution. Mrs X said their relationship had deteriorated however, and they agreed that Mrs Y needed to move to her own accommodation.
49. Mrs X acknowledged that Mrs Y’s health had worsened over time and that she received a care package. However, she said at the time Mrs Y disposed of her capital, she had no care needs. Mrs X said she considered the Council had not demonstrated Mrs Y’s motivation for the disposal of her capital was to avoid care costs.
50. In December 2020, Mrs Y was discharged from the care home and returned to her own accommodation with an increased package of care.
51. On 14 December 2020, the Council’s DMP considered Mrs X’s request for a review.
52. On 19 January 2021, the Council told Mrs X it had upheld its decision that Mrs Y was a full fee payer. It referred to the original financial assessment in 2016 and said it decided Mrs Y was a full fee payer at that time because she had not provided further information to the Council. It said the panel considered the information provided by Mr X in June 2020, including the “significant amount of gifting during a short period of time” in October 2014, and Mrs Y’s health condition. The Council said it considered Mrs Y was aware that adult social care was means tested because she was present at a financial assessment for her late husband. It also said it considered Mrs Y had a reasonable expectation of a need for care based on the needs assessment carried out in 2016. It concluded that Mrs Y would have known she would be required to contribute towards care costs.

Mrs X’s request to the Revisit and Review Panel

53. Mrs X wrote to the Council on 26 January 2021 and asked the R&R panel to review the decision. Mrs X complained the Council had not allowed her to present her appeal to the DMP panel and said the Council had not provided her with minutes from the meeting or told her who comprised the DMP panel.
54. Mrs X said the Council had given no reasons why it considered Mrs Y’s motivation for gifting her capital was to avoid paying care costs. She said Mrs Y’s motivation was to use the money to help her family, in particular her daughter-in-law and grandchildren following the death of Mrs Y’s son. Mrs X said Mrs Y had contributed £50,000 to her as she was her only living child and she was going to live with her. Mrs X said she used the money to make adaptations to her home to accommodate Mrs Y.
55. Mrs X said she considered the Council was selective in the information it considered and had failed to provide clear evidence to support its decision that Mrs Y’s actions in 2014 were significantly motivated by an intention to avoid care costs.
56. Mrs X provided the Council with an addendum to her appeal on 12 February 2021. She provided details about Mrs Y’s income and expenditure and said the decision to charge full care fees meant Mrs Y had insufficient income to live on. Mrs X asked the R&R panel to consider this as part of its decision-making process.
57. The R&R panel considered Mrs X’s request for a review on 23 February 2021.
58. On 24 February 2021, the Council provided its decision that Mrs Y remained a full fee payer. It set out a timeline of events dating back to 2016 and acknowledged receipt of the information provided by Mr X in June 2020. The Council said the panel had read and considered all the documentation provided to it.
59. The Council referred to Mrs Y’s health condition as identified by the care needs assessment of 2016, and the bank statements showing the proceeds of the sale of Property A and the payments made as gifts. It said it considered Mrs Y would have known she would be expected to contribute towards care and support costs because she was her late husband’s financial agent at the time of his care. It also said it considered Mrs Y would have had a reasonable expectation of a need for care and support at the time of the gifting.
60. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.

Was there fault by the Council?

61. My role is to decide whether there was any fault by the Council in its assessment leading to its decision that Mrs Y deprived herself of capital to avoid care and support charges.
62. The key issue is not that Mrs Y disposed of her capital; she was entitled to do what she wished with it. But, having done so, the Council was entitled to investigate whether avoiding care costs was a significant motive in her reasons for doing this.
63. Mrs X complains the Council did not fully consider all the factors regarding Mrs Y’s disposal of capital. The Council says it followed the correct processes and says all panel members reviewed all relevant documents provided by Mrs X. It says its decision letters provided a comprehensive response and fully addressed Mrs X’s complaint.
64. I have reviewed the information provided by Mr and Mrs X to the Council. I have also reviewed the Council’s minutes from the DMP and R&R meetings which set out the Council’s observations regarding the grounds for review, and its decision letters. Having reviewed this information, I consider the Council has not demonstrated it addressed all the grounds for review as set out by Mr and Mrs X.
65. As stated at paragraph 17, the Council should consider whether avoiding care and support charges was a significant motivation in the timing of the disposal of Mrs Y’s capital. The Council considered Mrs Y was not fit and healthy at the time of the disposal and considered there was a foreseeability of care as a result. It also considered there was a reasonable expectation she would be required to contribute toward the cost of her care. Having considered these factors, the Council considered Mrs Y’s motivation for disposing of her capital was to avoid care costs.
66. I acknowledge the above explanation. However, I have seen no evidence the Council considered Mr and Mrs X’s alternative explanation for Mrs Y’s motivation, namely, to financially assist her late son’s wife and children, and for “some good” to come after the death of Mr Y. The records from the review meetings do not show this explanation was discussed and the panel’s observations regarding this matter are not recorded. The Council’s decision letters do not refer to its consideration of this matter either.
67. In addition, the Council’s records do not show how it considered the addendum provided by Mrs X on 12 February 2021. Mrs X asked the Council to consider her concerns that Mrs Y would have insufficient money to live on if she was required to pay the full cost of her care. The minutes from the R&R meeting do not provide any indication this matter was considered, and the Council’s decision letter is also silent on this subject.
68. I acknowledge the Council says it considered all points put forward by Mrs X. However, without evidence the Council considered the alternative explanation for Mrs Y’s motivation, it has not demonstrated how it concluded Mrs Y’s significant motivation was the avoidance of care and support charges rather than to financially assist her family.
69. As the decision letters do not provide the Council’s rationale for this, the Council has not provided “full written reasons” for its decision as specified in its terms of reference. I have found this to be fault.
70. Mrs X says the Council’s actions have caused her a lot of stress. She also says Mrs Y is unable to afford the cost of her care package as a result of the Council’s decision. The lack of explanation by the Council in its decision letters as stated above caused uncertainty as to whether the grounds for review were fully considered, and I consider this to be an injustice to Mrs X and Mrs Y.

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Agreed action

71. To address the injustice identified, the Council has agreed to take the following action:

• Provide an apology to Mrs X and Mrs Y within one month of the final decision, and
• Carry out a further review of the financial assessment to consider all the points raised by Mrs X, including the explanation for Mrs Y’s motivation at the time she gifted her capital. This should be carried out within three months of the final decision.

The Council is required to provide us with evidence it has completed the agreed actions.

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Final decision

72. I have found fault by the Council as set out above, and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

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Parts of the complaint that I did not investigate

73. I have not investigated the complaint the Council did not allow Mrs X to attend the Stage 2 appeal hearing. This is because there is not enough evidence of fault in the Council’s decision. Councils may decide how to conduct reviews of decisions relating to potential deprivation of assets, and there is no requirement to invite appellants to attend appeal hearings.
74. I have not investigated the complaint the Council incurred delays during the financial assessment. This is because the Council said this was due in part to the impact of COVID-19 and has already apologised for the delay. Further investigation of this complaint is unlikely to add to the Council’s investigation and is unlikely to lead to a different outcome.
75. I have not investigated the complaint the Council did not provide Mrs X with a record of the appeal hearing. This is because we normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection or requests for information.

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Investigator's decision on behalf of the Ombudsman