Summary: Miss X complained about how the Council handled her mother’s financial assessment. She said this led to the Council’s conclusion that Miss X had deliberately deprived her mother of assets to avoid contributing to care fees. There was no fault with the Council’s actions which were in line with legislation.

The complaint

1. Miss X complained on behalf of her mother, Mrs Y.
2. She said the Council failed to properly consider the reasons for her gifting money and is wrong that she deprived her mother of an asset.
3. This leaves Mrs Y with insufficient money to live on, and below the Personal Expenses Allowance.

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The Ombudsman’s role and powers

4. 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)
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 Miss X’s complaint and spoke to her about it.
8. I also considered the Council’s response to Miss X and to my enquiries.
9. Miss X 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

The law

Deputyship

10. The Court of Protection can authorise a deputy to make decisions on behalf of someone who lacks mental capacity. There are two types of deputies: Property and financial affairs, and personal welfare. When someone becomes a deputy, they must send an annual deputy report to the Office of Public Guardian (OPG) each year explain the decisions they have made.
11. The Mental Capacity Act 2005 states that deputies must ensure the use of money is in the best interests of the person who lacks capacity.
12. A deputy’s court order will say if they can buy gifts or give gifts of money on behalf of the other person, including donations to charities. It will also say if there’s an annual limit on how much money they can use for gifts.
13. It goes on to state that gifts must be reasonable. Any gifts given should not impact on the person’s ability to be able to pay for their care for the rest of their life and should be comfortably affordable. The amount must be in keeping with what that person would have done before they lost capacity. This can vary from person to person. A deputy needs to make sure any gifts do not reduce the level of care the person they’re deputy for can afford.
14. Miss X’s court order states that she may dispose of Mrs Y’s money or property by way of a gift to any charity to which she made, or might have been expected to make, such gifts, and, on customary occasions, to persons who are related to or connected with her, provided that the value of each gift in not unreasonable having regard to all the circumstances and, in particular, the size of her estate.

Personal Expense Allowance (PEA)

15. The PEA is the weekly amount that people receiving local authority-arranged care and support in a care home (residents) are assumed to need as a minimum for their personal expenses and local authorities must apply this. The PEA is specified in regulations made under section 14(7) of the Care Act 2014.
16. Based on a financial assessment of their resources, individuals must be left with the full value of their PEA. The current PEA (2023-24 tax year) is £28.25 per week.
17. In the financial assessment, councils usually show PEA as a deduction from a resident’s income. Any income a resident receives above this amount is expected to be paid as a contribution towards their care fees.

Tariff income

18. A tariff income is included in a financial assessment when a customer has above £14,250 in savings. They are charged £1 for every £250 they have above this figure.

Notional Capital.

19. Transferring a capital asset (i.e. money) does not necessarily mean it can no longer be taken into account in the financial assessment. If the Council believes that deliberate deprivation has occurred, the asset can ‘notionally’ be included in the calculation. ‘Notionally’ means that, even though once may not have that capital asset anymore, they are treated as if they do still possess it.
20. This generally means that a person’s savings will be treated as above the lower threshold of £14,250. This in turn means their tariff income is higher and their overall income is higher resulting in a higher contribution to care costs. The PEA deductions remain the same, regardless of the income, so a resident should still have personal expenses.

Complex case panel

21. A Complex Case Panel is a senior level multi-agency advice and consultation group who meet regularly to discuss, as the name suggests, complex cases.

What happened

22. Mrs Y lives in a residential care home. She lacks mental capacity to make financial decisions. Miss X, Mrs Y’s daughter became Mrs Y’s deputy in 2020. She deals with her mother’s financial affairs.

Financial reassessment 2021

23. In early 2021, Miss X asked the Council to review Mrs Y’s financial assessment. This was because she believed her mother’s income was less than her outgoings since she began to receive a pension. The Council carried out a financial reassessment in May 2021.
24. Miss X challenged the Council’s findings. She questioned the contribution Mrs Y was required to make towards her care home bills. She said her mother’s capital was only approximately £16,300 which she believed was significantly below the threshold for care contributions.
25. The Council explained the thresholds used for care contribution costs. The upper threshold was £23,250 to which the Council would complete a financial assessment. £14,250 was the lower threshold to which the Council would complete a reassessment to lower the customer’s contributions based on the lower amount of capital they would have.
26. The Council reviewed Mrs Y’s financial assessment and confirmed it was correct. It told Miss X to contact the Council if/when Mrs Y’s capital falls below the lower threshold.

Financial reassessment 2022

27. In March 2022, the OPG reminded Miss X to consider the impact of gifting large customary one-off gifts. This was because Mrs Y’s income appeared lower than her expenses.
28. In April 2022, Miss X contacted the Council. She said her mother’s capital was below the lower threshold. The Council carried out a financial reassessment for Mrs Y.
29. The Council spoke to Miss X and questioned some of the spending from her mother’s account. Miss X said the OPG said the spending was allowed. The Council requested the OPG report and financial statements.
30. The Council determined that Mrs Y’s money was used by Miss X to fund gifts for family members. The Council was left to determine whether the purpose of such transactions was to deliberately deprive Mrs Y of her capital.
31. When gifts were distributed, Mrs Y’s capital was under the upper capital limit. This meant she was responsible to contribute towards the cost of her care. The spending led to the depletion of her capital to the point of reaching the lower capital limit.

Complex Case Panel

32. In May 2022, the Council considered Mrs Y’s case at a Complex Case Panel meeting. The panel decided the financial assessment should remain as it was as the OPG’s report was not finalised. It explained the tariff income would not be removed and the spending would be treated as deprivation. The Council said the spending did not appear to be for Mrs Y’s benefit, and it not what it would have expected for someone in a care home to spend.
33. The Council told Miss X that if the OPG’s finalised report advises Miss X differently, it does not mean the Council will change its decision as the Council is separate to the OPG.
34. In September 2022, the Council provided Miss X with a link to the Care and Support Statutory Guidance. This guidance explained how the Council conducts financial assessments and includes what deprivation of assets is.

My findings

35. There was no fault in the Council’s actions when it carried out Mrs Y’s financial assessments. Under the Care Act, councils are required carry out a financial assessment when it first determines that a person needs care and support. Councils should review financial assessments when a person’s circumstances change, or the Council is notified that a person’s capital has fallen below a financial limit.
36. The Council reassessed Mrs Y’s finances when Miss X notified Mrs Y’s change in income in 2021, and reviewed the assessment when Miss X challenged the result. It reassessed Mrs Y again when Miss X informed the Council that Mrs Y’s capital had fallen below the lower threshold in 2022. The Council’s Complex Case Panel also considered Mrs Y’s case before reaching the decision to treat Miss X’s spending as deprivation.
37. I have seen the evidence and information provided by Miss X and the OPG that the Council considered when reaching its decision. I understand it is a complicated and often confusing process for a deputy to follow. However, I am satisfied the Council took a fair and transparent approach to its assessment. It kept in regular contact with Miss X and provided guidance and explanations of the process and how the Council made its calculations.
38. There was no fault with how the Council dealt with Mrs Y’s case. I cannot question the Council’s decision regarding notional capital or deprivation of assets if the decision was reached correctly. There is no evidence that suggests the decision was not reached in line with legislation and following the correct procedure.
39. The recent OPG report has no bearing on my decision as this is a separate body, outside of the Ombudsman’s jurisdiction.

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Final decision

40. I have completed my investigation. There was no fault with how the Council carried out Mrs Y’s financial assessments and reached its decision to treat Miss X’s spending as deprivation.

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Investigator's decision on behalf of the Ombudsman