Summary: Ms X complained the Council wrongly decided her mother Ms Y deliberately deprived herself of assets to avoid paying care fees. There was fault in the way the Council reached its original decision. It failed to clearly explain how it reached its view in relation to each gift Ms Y made. The Council has agreed to apologise to Ms X to acknowledge the frustration and uncertainty this has caused her. The Council has since set out its decision making for each gift and there is no evidence of fault in how it has done this so we cannot challenge it.

The complaint

1. Ms X complains the Council failed to apply the law and statutory guidance correctly in deciding her mother, Ms Y, deliberately deprived herself of assets. She says the Council has counted over £240,000 of notional capital in Ms Y’s financial assessment which she had previously given to Ms X. She says the Council failed to properly consider the timing of the gifts in question and Ms Y’s motivation. Ms X says this has caused her significant distress and financial loss.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I have considered the information provided by Ms X’s representative.
6. I have considered the Council’s response to my enquiries and the relevant law and guidance.
7. I gave Ms X’s representative and the Council the opportunity to comment on draft versions of this decision. I considered the comments I received in reaching a final decision.

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What I found

8. A council has a duty to arrange care and support for those with eligible needs. A council has discretion to charge for non-residential care following a person’s needs assessment. Where it decides to charge a council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
9. Where a council has decided to charge, it must carry out a financial assessment to decide what a person can afford to pay. If a person has more than the upper capital limit (£23,250) the council must meet their eligible needs if requested but they will be expected to pay the full cost of their care and will not receive financial assistance from the council. In calculating their capital, the council must not include the cost of the property in which someone receiving care is living.
10. The Care and Support Statutory Guidance sets out that where a council considers a person has deliberately deprived themselves of assets to reduce the contribution to their care costs it can treat them as still having the assets. The amount of those assets is called notional capital.
11. The Guidance says there may be many reasons for a person depriving themselves of an asset and the council should fully explore this first. ‘A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
1. 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?
2. did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

For example, it would be unreasonable to decide that a person had disposed of an asset in order to reduce the level of charges for their care and support needs if at the time the disposal took place they were fit and healthy and could not have foreseen the need for care and support.’

Background

12. Ms Y owned her own property. She lived there with her daughter Ms Z. In April 2013 Ms Y contacted the Council. At the time she was staying with Ms X. She said she wanted some legal advice about selling her property as Ms Z did not want to move from the property. Ms Y said it was big and had large staircases. She said she had bad knees, high cholesterol and a bad back. She managed all her own needs but found it difficult to clean the house. The Council gave her a list of cleaning providers and advised her to seek legal advice.
13. Ms Y was due to get married and intended living with her husband in his rented property. She visited her solicitors and explained she wanted to gift £250,000 to each of her daughters once she had sold her property.
14. In early 2014 Ms Y sold her property and gifted £290,000 to Ms Z to enable her to buy a property to live in and £200,000 to Ms X. She retained over £100,000 of capital to meet her ongoing needs. Later that year Ms Y inherited nearly £100,000 from a relative.
15. Later that year Ms Y and her husband bought a property.
16. In October 2014 the Memory Assessment Service assessed Ms Y. The letter set out Ms Y had spoken to her old GP about worries she had around deteriorating short term memory and word finding problems. She also had an ongoing fear that she was certain to develop dementia due to relatives having had it which was why the referral was made. The letter noted Mrs X was completely independent with the activities of daily living. She was the main carer for her husband who had physical health problems so she did all the maintaining of the home. The letter noted that physically Ms Y seemed very well. It found ‘there is no clear picture of onset and only vague minimal memory loss symptoms reported’. It said her ACE 3 test score (a cognitive test for dementia) was relatively normal and she scored particularly well in the area of memory. It said she remained cognitively fairly intact.
17. In 2015 and 2016 Ms Y made two further payments to Ms X of £6,000 and £32, 655.
18. Ms Y’s husband died in September 2016.
19. In 2017 Ms Y’s memory was tested again and showed some early signs of memory problems. Later that year she was seen by a Consultant and in early November 2017 was diagnosed with dementia. In 2017 Ms Y made further payments to Ms Z of £3000 and £1670.
20. In February 2018 Ms Y started to receive attendance allowance. She moved in with Ms X while her property was sold. In May 2018 she bought and moved into a retirement flat. In May 2018 she transferred £10,500 to Ms X. In 2019 she transferred £3750 to Ms Z.
21. In March 2019 Ms X requested a social care needs assessment of Ms Y. At the time Ms X had privately engaged carers to prompt Ms Y with medication and eating.
22. The Council assessed Ms Y’s care needs in August 2019. It noted Ms Y’s cognition had declined resulting in difficulty carrying out some aspects of daily living.

What happened

23. In July 2019 the Council sent a financial assessment form to Ms X. She completed and returned this later that month. In August 2019 the Council completed a light touch assessment and decided Ms Y needed to pay the full costs of her care charges.
24. In late October 2019 Ms X appealed the Council’s decision to charge Ms Y the full cost of her care. The Council acknowledged this in December 2019. It wrote to Ms X’s representative in March 2020, requesting evidence and advised it now needed to do a full financial assessment.
25. Ms X’s representative responded to the Council in late May 2020 to advise they were no longer her representative. The Council therefore wrote direct to Ms X.
26. Ms X’s new representatives contacted the Council in July 2020 and provided the information requested by the Council. The Council responded later that month. It noted Ms X had agreed to repay gifts made to her in 2018 and Ms Z had also agreed to repay some monies. In light of this it asked for confirmation of whether Ms Y wished to continue to claim for financial support with her home care costs. The representative confirmed she did. The Council therefore requested more information from Ms X. The representative provided this in November 2020.
27. The Council wrote to Ms X’s representative in December 2020 summarising the financial assessment so far. It set out the gifts made by Ms Y to Ms X and Ms Z and the timing of these and requested further information about these gifts including copies of relevant bank statements. Ms X’s representative responded to the Council in March 2021.
28. Ms X’s representative complained to the Council in June 2021 that it had not yet completed a financial assessment of Ms Y. It said in March 2021 Ms X had provided all the information requested by the Council.
29. The Council responded later that month. It set out the notes of Ms Y’s contact with the Council from 2013 and notes from her meeting with her solicitor in 2014. It referred to the gifts made by Ms Y to her daughters in 2014,2015, 2016, 2017 and 2018.
30. It said it had made reasonable inferences that Ms Y did know she may need care in the future, that she was aware she would have to pay for it and that this provided a significant reason to give away a substantial amount of her savings. It accepted Ms Z was living with Ms Y when she sold her house and that Ms Y felt it necessary to provide her with an alternative property so it would not treat the payment for an alternative property for Ms Z as a deprivation of assets. It considered the other gifts were a deprivation of assets so assessed Mrs Z was not entitled to funding from the Council.
31. Ms X’s representative responded to the Council in early July 2021. It said:
• the Council’s reference to events from 2013 was selective. Ms Y’s desire to no longer live in a large three storey property did not equate to a need for care and support.
• she sold the property as she was moving in with her husband and it noted Mrs Z later became primary carer for her husband.
• there was no evidence Ms Y had a cognitive condition when she was assessed in 2014.
32. It did not accept the gift given to Ms X, at the same time that Ms Y bought Ms Z a property, was a deliberate deprivation of assets. It said her motivation was to treat her daughters equally and she was only unable to do this due to property prices. She had no care and support needs at the time and none until March 2019 when she engaged carers. It said Ms X had agreed to repay some payments given to her in 2018.
33. The Council responded to Ms X’s representative in early August 2021. It said Ms Y’s fear of developing dementia was based on family history and experience that would lead to a reasonable expectation of needing care and support. It acknowledged Ms Y reported only vague memory symptoms when assessed in 2014 but did not accept Ms Y was reassured by the outcome as it said only a few years later there were early signs of problems relating to memory. It said Ms Y’s problems of bad knees and a bad back indicated a reasonable expectation of needing care and support. With regard to the property sale in 2014 it accepted Ms Y may have been motivated by her need to help Ms Z but it did not accept the £200,000 given to Ms X was motivated by a desire to treat her daughter’s equally.
34. Ms X remained unhappy and complained to us.
35. In response to our enquiries the Council has now set out, for each gift, its decision making in relation to the two questions set out at paragraph 11.

Findings

36. There were delays in completing the financial assessment. Some of these delays were due to delays in Ms X providing information and in her delay in initially requesting to appeal the financial assessment. However, other delays were Council fault. After Ms X appealed it was over four and a half months before the Council wrote to request evidence from Ms X. There was a further three month delay between March and June 2021 before the Council responded to Ms X’s representative. These delays caused Ms X uncertainty and frustration.
37. The Care and Support Statutory guidance sets out the criteria councils must consider in deciding if a deprivation of assets has occurred. The Ombudsman is not an appeal body. It is not for me to say whether the disposal was deliberate deprivation, or what Ms Y’s motivation was in giving the gifts. My role is to decide whether the Council followed the Guidance and considered relevant information in coming to its decision. If there is evidence a council considered all this information properly, the Ombudsman cannot find a council at fault just because a person disagrees with its decision.
38. Ms Y was entitled to do what she wished with her capital. But having done so the Council was entitled to investigate whether at the time she did so, Ms Y had a reasonable expectation of needing care and support and whether Ms Y had a significant motivation or intent to avoid care costs.
39. At the time Ms Y paid significant sums to her daughters she appeared not to have care and support needs. She moved in with her new husband for whom she later became the main carer and she had sufficient funds left to purchase a property. She had been assessed by the Memory Assessment Service which found no evidence of a cognitive condition. The Council initially failed to properly address the issues raised by Ms X’s representative. The Council must make a robust decision which shows it has properly considered the facts at the time each gift was made and the relevant guidance. It failed to clearly set out its decision making to Ms X and this was fault.
40. In response to my enquiries the Council has now done this. It has set out its detailed consideration for each gift in relation to the two key questions. The Council has set out how it considered whether Ms Y had a reasonable expectation of the need for care and support and whether Ms Y had a significant motivation to avoid contributing to the costs of her care at the time the payments were made. These were the considerations it needed to make. It has now set out its considerations and as there was no fault in how it has done this I cannot challenge its decision.

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Agreed action

41. Within one month of the final decision the Council has agreed to apologise to Ms X to acknowledge the frustration and time and trouble caused by the Council’s delays.

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Final decision

42. I have completed my investigation. There was fault leading to injustice for which the Council has agreed to a remedy.

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Investigator's decision on behalf of the Ombudsman