Summary: Mr M complains on behalf of his mother, Mrs F, about the Council’s decision that she deprived herself of assets to avoid paying towards her care costs. We have not found fault.

The complaint

1. Mr M complains on behalf of his mother, Mrs F, about the Council’s decision that she deprived herself of assets to avoid paying towards her care costs. He says the Council has not properly considered the representations her family made. As a result she has been caused a huge financial loss.

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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 cannot question whether an organisation’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)
3. 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

4. I spoke to Mr M about his complaint and considered the information he sent, the Council’s response to my enquiries and:
• The Care Act 2014 (“the Act”)
• The Care and Support Statutory Guidance 2014 (“the Guidance”)
• The Care and Support (Charging and Assessment of Resources) Regulations 2014
5. Mr M and the organisation 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

Charging for care

6. Councils can charge for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
7. The law states that people who have over the upper capital limit (£23,250) are expected to pay the full cost of their care. They are known as self-funders. Once their capital has reduced to less than the upper capital limit, they must only pay an assessed contribution.

Deprivation of assets

8. The Guidance says people should be able to spend the money they have saved as they wish. However, it is also important people pay their fair contribution towards their care and support costs. Local authorities should ensure people are not rewarded for trying to avoid paying their assessed contribution. Councils must therefore assess a person to determine whether they have intentionally deprived themselves of assets to avoid paying care fees. A person can deprive themselves of capital in many ways, for example by making a lump sum payment to someone else as a gift.
9. Local authorities should not assume someone has intentionally deprived themselves of assets to reduce their contribution to care fees. The Guidance says there may be other valid reasons. In deciding whether the purpose of the deprivation was to avoid care fees, local authorities should consider:
• 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?
• Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?
10. If a local authority 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 its financial assessment.

What happened

Background

11. Mr M and his siblings purchased a retirement property for their parents in 2015, which they moved into in January 2016. At this point Mrs F was 75 years old and in good health. Mr F had a disability. Mr M says his parents intended to live in the property for many years and paid no rent to Mr M and his siblings.
12. Mr M says that in early 2017, Mr and Mrs F decided to sell their previous home and gift £150,000 to their three children. In June 2017 Mrs F was diagnosed with dementia and Mr F sadly passed away that summer. When the property sale was completed, Mrs F gifted the money to her three children in September 2017. Mrs F gave Mr M and his siblings power of attorney in 2018. She continued to live independently in the retirement property.
13. Mrs F’s condition started to deteriorate towards the end of 2019. The family arranged for a care agency to visit each day from 30 October 2019. They then agreed it would be best for Mrs F to move into residential care as Mrs F’s mood became low, she started wandering and had disturbed nights. She moved into a care home on 27 January 2020.

Application for financial assistance from the Council

14. In August 2020 the family applied to the Council for financial assistance with the cost of Mrs F’s residential care. They said at this stage her savings had reduced to about £24,000. The request declared the gifts Mrs F had made in 2017.
15. The Council carried out a care and support assessment which was completed in November 2020. This said Mrs F had advanced dementia and lacked capacity to make decisions about her care. The care home said Mrs F’s cognition had declined rather significantly in recent months. The Council found Mrs F was eligible for permanent residential care. The assessment said Mrs F had been living in an extra care facility, had received a care package of two two-hour visits per day for the last two years, and that Mr M’s sibling had given up work to care for Mrs F full time. Mr M says these facts are wrong.
16. The Council then calculated that Mrs F’s funds would not drop below £23,250 until May 2021. It noted the care home’s charges were above the rate usually funded by the Council.

Council’s deprivation of assets decision

17. The Council wrote to Mr M on 20 March 2021 requesting more information about Mrs F’s gift. It considered his response before making a decision in May 2021 that there had been a deprivation of assets. The Council’s decision letter said this decision had been made having had regard to:
• The fact that Mrs F had dementia, which was a progressive condition.
• That she had lived in an extra care facility with a 24-hour emergency call out system, had previously been receiving four hours of home care per day for two years, and that Mr M’s sibling had given up work to care for Mrs F.
• The timing of the gift.
• The lack of an established pattern of gifting.
18. It therefore considered Mrs F had had a reasonable expectation of a need for care and support and of the need to contribute to the cost of her care.

Mr M’s appeal

19. Mr M appealed the Council’s decision in May 2021. He said:
• His parents decided to re-locate to a more suitable area and accommodation. They had then decided to sell their home as they intended to live in that accommodation for many years.
• They had decided to gift the money when they were both fit and well to thank their children for the support they had provided. They had previously made modest gifts and provided family holidays.
• Mrs F had no expectation of requiring care in September 2017 as her dementia was very mild at that point. She intended to live independently in the retirement property for many years.
• Mrs F had paid for her care costs in full since January 2020 and had not tried to avoid paying for her care.
• The retirement property was not an extra care facility and although it had an emergency call-out system this was not the reason for moving there.
• Mrs F had only started to receive home care in November 2019 and Mr M’s sibling had not given up work to care for her.
• No legal advice had been taken about the gift as there had been no intention to avoid care costs.
• If Mrs F had paid rent she would have required financial assistance from the Council much sooner.
20. The Council’s panel considered the appeal in October 2021. Mr M spoke at the meeting and the panel considered a number of documents, including Mr M’s letters.
21. The panel did not uphold the appeal. It decided that Mrs F did have a reasonable expectation of the need for care and support at the time she made the gifts, as she had been diagnosed with dementia and had been prescribed with medication.
22. It also found she had a reasonable expectation that she would need to contribute towards future care as:
• It was not necessary to make the gift as the money could been left in a will.
• Mrs F was living in independent retirement accommodation with a 24-hour emergency call out system.
• There had been publicity about care charges and the so called 'dementia tax'.
23. The panel noted that the Council was not required to consider whether a person could have had a reasonable expectation of the need for the specific care they later required, only that there was a reasonable expectation of the need for some care and support in general.
24. As a result Mrs F was liable to pay the full cost of her care. The Council could pursue Mr M and his siblings to pay the difference between what it would have charged and did charge the person receiving care. It therefore asked Mr M whether they would prefer to continue to self-fund Mrs F’s placement or for the Council to recover the costs from the third parties.
25. The panel apologised it had not considered Mr M’s appeal until October 2021 and offered Mr M £200 to acknowledge the time and trouble this delay had caused.

My findings

26. That Mrs F gave money to her children is not in dispute. The only dispute is over the Council’s decision that she did this deliberately to avoid care costs.
27. It is the Council’s responsibility to decide whether Mrs F has deliberately deprived herself of capital to avoid care costs. The Ombudsman is not an appeal body. It is not for me to say whether the disposal was deliberate deprivation, or what Mrs F’s motivation was in giving it. My role is to decide whether the Council followed the Guidance and considered relevant information in coming to its decision. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a person disagrees with its decision.
28. The Guidance says gifts to family can be treated as deprivation of capital. However, any deprivation must be with the intention of reducing the amount they are charged for their care. In determining this councils must consider two questions:
• in September 2017 could Mrs F have had a reasonable expectation of the need for care and support?
• in September 2017 did she have a reasonable expectation of needing to contribute to the cost of her eligible care needs?
29. The Council considered these questions and found Mrs F did have these expectations.
30. In its first decision, the Council used facts about Mrs F’s previous care and accommodation that were incorrect. However the panel was aware of the correct information when it came to its decision following Mr M’s appeal. I have seen no evidence the panel did not consider Mr M’s information.
31. To properly decide whether someone had deprived themselves of an asset councils must show that a significant motivation in the decision to dispose of the asset was to reduce their contribution to their care costs.
32. The panel’s decision letter does not explicitly comment on Mrs F’s motive at the time of the gift, although it was aware of and had considered the family’s view about this. As there was no direct evidence of Mrs F’s motive, the Council was entitled to make a judgment about it by considering whether she had a reasonable expectation of having to pay care costs in the future. It decided she did, given she had a diagnosis of dementia at the time and it considered she would be aware that care for people with dementia was charged for. The Council is not required to show that Mrs F knew of the specific care and support she might need.
33. The evidence shows the Council considered whether Mrs F had a reasonable expectation of the need for care and support and of the need to contribute to the costs of her care at the time the payments were made. These were the considerations it needed to make, and there was no fault in the way it made them. I therefore cannot challenge its decision.

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Final decision

34. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman