Summary: Mrs B complained the Council has wrongly decided she should pay in full for her care. She also says the Council was wrong to include the money she gifted to her son when it completed its financial assessment. We find no fault in the Council’s decision making.

The complaint

1. Mrs B complained the Council has wrongly decided she should pay in full for her care. She also says the Council was wrong to include the money she gifted to her son when it completed its financial assessment.
2. Mrs B is worried she will run out of money and will not be able to pay for her care fees.
3. Mrs B is represented by Ms C in bringing the complaint to the Ombudsman.

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The Ombudsman’s role and powers

4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. 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)
6. 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)

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How I considered this complaint

7. I considered information from Mrs B and Ms C. I made written enquiries of the Council and considered information it sent in response.
8. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Financial assessments

9. The legal framework for charging is set out in sections 14 and 17 of the Care Act 2014. Councils must carry out a financial assessment of what the person can afford to pay and, once complete, they must give a written record of that assessment to the person.
10. A financial assessment is primarily to determine whether a person qualifies for funding towards the cost of their care. A person’s income and capital are considered. Capital includes savings, investments, and property. A person would not qualify for funding it they have more than £23,250 in capital.

Deprivation of assets

11. A council can look at whether a person has intentionally decreased their overall assets to reduce the amount they contribute towards the cost of care services. This is called deprivation of assets. The Care and Support Statutory Guidance 2014 says councils must consider:

• Whether avoiding the care and support charge was a significant motivation in the timing of the disposal of the asset.
• Whether the person had a reasonable expectation of needing to contribute to the cost of their eligible care needs.

12. Deprivation covers a broad range of ways a person might transfer a capital asset out of their possession. These include:

• A lump-sum payment to someone else, for example as a gift.
• The title deeds of a property have been transferred to someone else.

13. If a council decides a person has deprived themselves of assets to avoid paying care fees, it may treat those assets as if the person still owns them (notional capital) in the financial assessment.

What happened

14. Mrs B temporarily moved into a care home in 2016 following an operation. As a result of a break in at her home and her reduced mobility, she then moved to an assisted living facility.
15. Mrs B put her house up for sale in 2017. She told the Council she was going to transfer some of the sale proceeds to her son. The Council told Mrs B she would still be legally responsible for her care fees.
16. The Council visited Mrs B in November to discuss an outstanding bill. She told the Council she had transferred her son £50,000 from the sale of her house. The Council told her it would charge her as if she still had the capital. Mrs B said it was unfair she had to pay for her care fees when others did not.
17. Mrs B contacted the Council a couple of years later and said she did not have the money to continue paying for her care fees. A member of staff at the assisted living facility also contacted the Council and said Mrs B was under the financial threshold.
18. The Council contacted Mrs B in 2020 to gather financial information so it could complete a financial assessment.
19. Mrs B provided the Council with some, but not all, of the information it asked for. The Council wrote to her on 8 December and said she had care needs before selling her house and transferring £50,000 to her son. It said given her health and care issues dated back to 2015, she should have known it was likely she would need care services in the future. It said it would treat her as if she had not gifted her son £50,000 and it would include it as notional capital in the financial assessment. It told her she could appeal its decision if she disagreed.
20. Mrs B called the Council in February 2021. She said she was going to run of savings in the next month or two.
21. The Council reviewed Mrs B’s financial information and noted she would remain above the upper capital limit until 2024. It said it would review her finances each year.
22. Mrs B called the Council in July. She said she was unhappy with its decision. She said she gave her son £50,000 before she started receiving care.
23. Ms C complained to the Council on Mrs B’s behalf. She said Mrs B did not give her money away to avoid paying her care fees. She also said Mrs B’s finances were very low, and she was worried about how she was going to continue paying for her care fees.
24. The Council responded to Mrs B’s complaint. It said when she sold her house, she was receiving residential care and so it was reasonable to assume she would continue to need it. It said the £50,000 she gifted to her son should have been used to fund her ongoing care needs. It also said it would continue to include the £50,000 she had gifted to her son as notional capital. Once her assessed capital fell below the limit of £23,250, it would complete a means tested financial assessment.
25. Mrs B remained dissatisfied with the Council’s response and referred her complaint to the Ombudsman.

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Analysis

26. The Ombudsman is not an appeal body. It is not for us to say whether Mrs B’s gift to her son was a deliberate deprivation of assets. Our role is to consider whether the Council followed the Care and Support Statutory Guidance 2014 and considered relevant information.
27. In Mrs B’s case, the Council has considered all the information available in line with the statutory guidance. It explained to Mrs B why it was satisfied she had a reasonable expectation she would need to continue contributing to her care fees when she gifted her son £50,000. It also considered Mrs B was in full possession of the facts and avoiding care charges was a significant motivation in the timing of the gift.
28. I appreciate Mrs B strongly disagrees with the Council’s decision. However, there is no fault in the way it reached its decision and so I do not uphold her complaint.

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Final decision

29. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman