Summary: Mrs B has complained that the Council was wrong to decide that she was liable to pay the balance of her mother’s care home fees due to a deliberate deprivation of assets. We cannot question the Council’s decision because we have found no fault in the way it was reached.

The complaint

1. Mrs B complains that the Council has wrongly decided that there has been a deliberate deprivation of assets to avoid the cost of her mother’s care home charges.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by “maladministration” and “service failure”. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

4. I have considered Mrs B’s written complaint and supporting correspondence and discussed her complaint with her. I have made enquiries of the Council and considered its response and supporting papers. I have had regard to relevant legislation and guidance. I have also sent Mrs B and the Council a draft decision and invited their comments.

Back to top

What I found

Legal and administrative background

Charging for permanent residential care

5. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014, and the Care and Support Statutory Guidance 2014.
6. When a council arranges a care home placement, it must carry out a financial assessment to decide how much a person has to pay for their care. The rules say that people who have capital over the upper capital limit (currently £23,250) are expected to pay the full cost of their care home fees. However, once their capital falls below the upper limit, they only have to pay an assessed contribution.

Treatment of capital

7. Annex G of the guidance covers the treatment of capital. In some circumstances a person may be treated as possessing a capital asset even where they do not actually possess it. This is called notional capital. Notional capital may be capital which the person has deprived themselves of to reduce the charge they have to pay for their care.

Property disregards

8. Sometimes, councils must disregard the value of a person’s home. This includes:
• where it is occupied by a relative aged 60 or over; and
• for the 12 weeks when they first enter a care home as a permanent resident.
9. A council also has discretion to apply a property disregard in other circumstances. However, it must balance this discretion with ensuring a person’s assets are not maintained at public expense.

Deprivation of assets

10. Annex E of the guidance covers deprivation of capital. A council may consider that a person who knew they needed care and support has reduced their assets in order to reduce their contribution towards the cost of their care and support.

What happened

11. Since the early 2000s, Mrs B lived with her parents, Mr and Mrs C in the family home which they jointly owned and on which there was a mortgage.
12. Mr C passed away in 2014.
13. In May 2017, Mrs C was admitted to hospital. She was then aged in her 90s. Her daughter, Mrs B was aged in her late 50s, and Mrs B’s son had moved into the family home due to illness, with Mrs B helping to manage his business.
14. In June 2017, Mrs C was due to be discharged from hospital. Her social worker spoke with Mrs B about options. The conversation note records Mrs B saying that her mother had wanted to stay at home for as long as possible but she was willing to go into a care home if necessary. They also state,

“[Mrs B] informed she was not able to have her mother return home as she [can] no longer care for her”.

15. The notes also record that the social worker discussed finances with Mrs B.

“[Mrs B] informed her mother has no savings and she owns half the house they both live in which is mortgaged. She did not know the equity value. I explained that a persons property, or stake in a property is taken into consideration from week 13, [Mrs B] asked what would happen as she lives in the house and I confirmed that they would not make [her] homeless but NCC may put a charge onto her mothers stake in the house to pay for her care. [Mrs B] was not happy with this, she agreed to be contacted by a financial assessor who could give them more in-depth information.”

16. Mrs C was discharged from hospital into a care home in July 2017. The Council carried out a financial assessment with Mrs B later that month. Mrs B signed the assessment form which states:

“I understand that if I give away any of my capital, property or savings with the intention of reducing my assessed contribution to the cost of my care, I may still be charged for the assessed cost of my care by Northamptonshire County Council as if I still owned these assets”.

17. The Council sent Mrs B a copy of the letter to her mother setting out revised contributions for Mrs C’s “Permanent Residential Care”. The letter stated:

“On the basis of the information provided, your contribution for your stay in [the care home] from 11/07/2017 will be £104.72 per week for the first four weeks and £134.45 per week for the following 8 weeks… After 12 weeks you will be asked to pay the full cost of your care, which is currently £661.21 per week. This is because you have a financial interest in [the family home]. If you wish to apply for a Deferred Payment Agreement, please see the attached Application form and fact sheet.

- Please note that your property will need to be registered with HM Land Registry in order for us to consider your application, should you wish to apply”

18. Mrs C’s case notes record that Mrs B called the social worker in mid-August:

“T/C from [Mrs B], requesting a review as she would like to think about having her mum return back home to live with her. She explained that she now has another family member living with her who is able to be around for her, she also stated that her mother has made significant progress at [the care home] and she feels she would be better living with them at home.”

19. The Council reviewed Mrs C’s care and agreed that she would move back to the family home. It put in place a care package to help Mrs B support her mother.
20. Mrs B then decided to re-mortgage the house. A letter from the mortgage company’s solicitors to Mrs C in November 2017 states:

“We act for [Mrs B] and understand that you have agreed to transfer your share and interest in the above property in to [Mrs B’s] sole name.”

21. The house was transferred to Mrs B’s sole name in January 2018, with a charge registered by the mortgage company. Mrs B did not tell the Council of the change in ownership.
22. Over the next two years, the Council supported Mrs C with a domiciliary care package, and ten periods of respite care for Mrs B as her carer. Mrs C’s case notes from February 2020 record that

“Mrs [C] continues to live with her daughter who is her main carer around the formal support and is happy to continue this role. No concerns at present.”

23. Unfortunately, in June 2020 Mrs B suffered a fall and was admitted to hospital. The case notes record that Mrs B spoke with the Council:

“ …Mrs B advised that she is unable to continue to care for her mother as her needs have increased and [she] is now needing to go back to work full time in the near future and so cannot be full time carer …Mrs B advised that she is now 60 and she is aware that her mothers property will therefore be disregarded from her financial assessment. I advised that this is the case but that the financial assessment team would need to be confirm this after their financial assessment.”

24. The Council started a financial assessment to decide Mrs C’s contribution to the cost of permanent care in the care home. Checks with the Land Registry showed the family home had been transferred into Mrs B’s sole name in January 2018. The Council asked Mrs B for more information and, once received, completed the assessment in December 2020.
25. The Council then wrote to Mrs C and said it considered there had been deprivation of assets. It set out the charges that Mrs C would pay towards her care. It also said it would invoice Mrs B for the balance of the charges.
26. Mrs B complained to the Council and contacted her MP. However, the Council maintained its view that here had been a deprivation of assets. It also explained that it could not consider a property disregard because Mrs C no longer had a legal interest in the property. However, if the property ownership was updated to include Mrs C, the Council could then review the financial assessment and the potential for a property disregard.

My assessment

Did the Council give Mrs B appropriate advice?

27. Mrs B says she had no knowledge about deprivation of assets when she re-mortgaged her home and transferred it into her sole name.
28. Chapter 3 of the Statutory Guidance sets out the need for councils to provide appropriate advice at the right time so that people can make informed decisions about their care and how to pay for this.
29. As set out above:
• the social worker told Mrs B in June 2017 that the Council may put a charge on her mother’s share in the house to pay for her care;
• in July 2017, Mrs B signed the assessment form which stated that if she gave away any capital, property, or savings with the intention of reducing her assessed contribution, she may still be charged as if she owned those assets;
• the July 2017 letter setting out revised contributions for Mrs C’s care advised that the property would need to be registered with the Land Registry;
• as the Council was not contacted at the time of the property transfer, it could not provide further advice at that time.
30. I consider that the Council advised Mrs B in advance that transferring ownership of the property may have implications in terms of future charges.

Was there fault in the way the Council reached its decision?

31. Mrs B says that at the time the property ownership was transferred, her mother was in good health. She had only been placed in temporary residential care after a stay in hospital due to an infection, before returning home, with the only assistance being a daily carer and respite care. She says her mother's name was removed from the property, solely due to her age as she was 95 years old and unable to remain on the mortgage.
32. The Council considers that at the time of the property transfer in January 2018, there was a reasonable expectation of the need for care and support and to contribute to the cost of eligible care needs. It has pointed to the following:
• Since 2005, Mrs C has received Attendance Allowance to help with extra costs where a person has a disability severe enough to need support.
• The Council funded Mrs C’s residential care for the 12-week property disregard period from July to September 2017 as this was initially planned as a permanent move.
• Mrs C received domiciliary care services after returning home in September 2017.
33. Given the Council’s advice to Mrs B and the evidence put forward in support of its decision, I see no fault in the way the Council considered whether there was deprivation of assets. I cannot therefore question the merits of that decision.
34. As to property disregards, I see no fault in the Council’s position. Mrs C has no share in the property, so there is no ownership for the Council to disregard.
35. That said, the Council says:
• it will review the financial assessment if it receives evidence that re-mortgaging required the removal of Mrs C from the title deeds, though it maintains its view that Mrs C’s interest should be protected; and/or
• it will also be able to review the financial assessment and the potential for a property disregard if Mrs C is added to the property deeds.

Back to top

Final decision

36. I have closed my investigation into Mrs B’s complaint as I have found no fault in the way the Council has reached its decision.

Back to top

Investigator's decision on behalf of the Ombudsman