Summary: We will not investigate Mr C’s complaint about the Council’s decision to treat his mother’s, Mrs D’s, gifts of money from the sale of her property as a deprivation of asset. This is because it is unlikely we would find enough evidence of fault with the actions taken by the Council to warrant an ombudsman investigation.

The complaint

1. Mr C complained the Council included his mother’s, Mrs D’s property in her financial assessment and although she has sold the property and gifted some of the capital from the sale, will treat the gifts as though she still has it. Mr C says Mrs D moved to live with her daughter, Mrs E, in 2018 not because she needed care but because she was isolated and wanted to live and end her days with her daughter. Mr C says although Mrs D received Attendance Allowance at the time she gifted the money she was independent and had no care needs indicating she would need care in the future. Mr C says Mrs E’s health has deteriorated, and she can no longer provide support to Mrs D whose own health has since deteriorated, resulting in her needing residential care. Mr C says prior to selling the property and gifting the money they sought financial advice to ensure they were acting correctly and are worried now the money has been spent what will happen to Mrs D in the future.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I considered information provided by the complainant.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The Council considered Mr C’s appeal against the decision to include Mrs D’s property in her financial assessment at its complex case panel. It said given Mrs D was in receipt of Attendance Allowance, which is only applicable to a person requiring care, she could have foreseen she would need chargeable care sometime in the future and at the point she gave the money from the sale of the property to her family. The Council explained the gifts will be treated as a deprivation of capital for the purpose of avoiding care costs and advised Mr C to continue paying Mrs D’s care fees directly to the care home until her capital falls below £30,000. At this time Mr D should contact it again to undertake a financial and social care assessment.
6. Mr C disputed the Council’s decision, and it responded further in August 2022. It considered Mr C’s views but on the evidence it had said there was a reasonable expectation of Mrs D continuing to receive care in the future which would need to be paid for when she gifted the money.
7. Mr C says Mrs D did not require care when she sold her property and went to live with Mrs E. However, she was in receipt of Attendance Allowance, and she had met the eligibility criteria for the allowance. You can get Attendance Allowance if you’ve reached State Pension age and the following apply:

• you have a physical disability (including sensory disability, for example blindness), a mental disability (including learning difficulties), or both
• your disability is severe enough for you to need help caring for yourself or someone to supervise you, for your own or someone else’s safety
• you have needed that help for at least 6 months (unless you might have 6 months or less to live)

8. On the balance of probability, Mrs D would have had a reasonable expectation she would have needed care sometime in the future because she was in receipt of Attendance Allowance. In this case we could not say there is any evidence if fault with the Council for including the gifts in the financial assessment. If there is no fault in the decision making, we cannot question the outcome.
9. The Care Act statutory guidance explains how councils should respond when they suspect a person has deliberately deprived themselves of an asset in order to avoid or decrease paying for care.

Care and support statutory guidance - GOV.UK (www.gov.uk)

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Final decision

10. We will not investigate Mr C’s complaint because it is unlikely we would find enough evidence of fault with the Council’s action to warrant an ombudsman investigation.

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Investigator's decision on behalf of the Ombudsman