Summary: Mr C complained about the Council’s enquiries when considering if his father had deliberately deprived himself of assets. Mr C says he suffered avoidable distress and time and trouble and continued to receive demands for payment which did not include agreed backdating. We have found no fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains about the way the Council assessed his late father’s contribution towards his residential care fees. In particular, Mr C says the Council made unreasonable enquiries when considering if his father had deliberately deprived himself of assets to avoid care charges. Mr C also complains the Council has failed to backdate funding to January 2022 as agreed during its complaint procedure.
2. Mr C says because of the Council’s fault, he suffered avoidable distress and time and trouble in pursuing the matter and continues to receive demands for payment which do not include the agreed backdating.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I read the papers provided by Mr C and discussed the complaint with him.
7. I have considered some information from the Council and provided a copy of this to Mr C.
8. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Relevant law and guidance – charging rules

9. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
10. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
11. Where a local authority has chosen to charge a person for the services it is arranging it must undertake a financial assessment. When doing so, it must assess the income and capital of the person. A capital asset is normally defined as belonging to the person in whose name it is held, the legal owner. In most cases the person will be both the legal and beneficial owner.
12. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person is entitled to access council support to meet their eligible needs. People who have over the upper capital limit are expected to pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

Law and guidance – deprivation of assets

13. The Care and Support Statutory Guidance says, “When undertaking or reviewing a financial assessment a local authority may identify circumstances that suggest that a person may have deliberately deprived themselves of assets in order to reduce the level of the contribution towards the cost of their care. In such circumstances, the local authority should have regard to this guidance.”
14. The guidance also says, “Deprivation of assets means where a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care. This means that they must have known that they needed care and support and have reduced their assets in order to reduce the contribution they are asked to make towards the cost of that care and support.”
15. It goes on “There may be many reasons for a person depriving themselves of an asset. A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:

1. (a) 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. (b) 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”.

What happened

16. Mr C’s father was a permanent self-funding resident at a care home from late 2017. Mr C says he first contacted the Council in November 2021. The Council has no record of this contact. Mr C has provided a copy of an email dated 9 November which was advise the Council his father’s funds were running low and were likely to fall below the relevant threshold the following year. The Council replied to suggest Mr C contact it again when close to the threshold to seek a financial assessment. Given the general nature of this contact I do not consider it is material to my findings.
17. Mr C submitted online information to the Council on 6 January 2022. The Council sought some further information from Mr C. Mr C contacted the Council on 13 January to say his father was at the end of life and so did not consider it was necessary to proceed with the financial assessment.
18. Mr C contacted the Council again in March as his father was improving to proceed with the assessment and provided further information including details of substantial financial gifts made to him and his sister by his father in 2018.
19. The Council spoke with Mr C by telephone in April to explore how the sale proceeds from his father’s former property had depleted. Mr C further explained his father had made a substantial gift to both him and his sister in 2018 following the sale of his property. Mr C also explained he had been told his father was not expected to live for long at that time and so there would be enough funds to cover his care. The Council asked Mr C to provide a letter from his father’s doctor as supporting evidence in an email dated 28 April.
20. Mr C provided extracts from his father’s medical records on 10 May. The Council accepted this evidence and confirmed the gifts would be ignored for charging purposes.
21. In summary, the Council made enquiries to establish the motivation for making the gifts before reaching a decision for charging purposes. The Council has explained it sought to answer the following questions:

• Did Mr C’s father know he needed care and support when making the gifts in 2018? This was confirmed as he had been receiving care and support as a permanent care home resident from October 2017 when he made the gifts.
• Could he have had a reasonable expectation that he would be required to pay towards that care and support in 2018? This was also confirmed as he had been self-funding his care home fees from October 2017.
• What was the motivation for the large disposal in 2018? Mr C informed the Council his father was terminally ill in 2018 and could not have foreseen a need to pay for his care in the longer-term. The Council did not have any records about this situation and asked Mr C to obtain a letter from his father’s doctor as supporting evidence as set out above.

22. During the course of Mr C’s subsequent complaint to the Council it agreed in October 2022 to provide retrospective funding from January 2022 (from the date the relevant capital threshold was established as being met) net of the assessed charge for the period which would result in a credit payment of £7294.37. Mr C advised the Ombudsman this agreement had not been actioned.
23. The Council has confirmed retrospective funding has been applied and a credit made to the account as previously set out to Mr C. However, there followed further correspondence with Mr C about this issue and he confirmed he remained unhappy with the outcome and the matter was now with the Ombudsman. In his complaint to the Ombudsman Mr C was seeking all fees to be waived.
24. The Council had confirmed to Mr C in September that it was placing the account on hold to stop any debt recovery demands being issued but monthly statements would continue to be sent until the matter was concluded.
25. The Council has kept the account on hold pending the outcome of my investigation. The Council has provided details of the final account to the Ombudsman which includes the credit amount previously advised to Mr C in its complaint correspondence.

My analysis

26. Mr C’s father had made substantial gifts to Mr C and his sister following the sale of his property. There is no evidence to suggest Mr C was not open about this from the outset or that the Council did not accept his explanation. However, the Council was required to follow the relevant guidance to consider the motivation for the gifts. This process is always likely to feel intrusive at the best of times and the Ombudsman would only seek to remedy any avoidable distress as a result of some fault by the Council.
27. Based on the information provided, I am satisfied the Council has followed the statutory guidance in considering the issue of deprivation of assets and made reasonable and proportionate enquiries. I have seen no evidence of fault during this process which has caused Mr C avoidable distress. Therefore, there are no grounds for me to recommend a remedy requiring the waiver of fees.
28. The Council placed the account on hold pending the outcome of my investigation which was not required but welcomed by the Ombudsman as good practice. The Council has confirmed retrospective funding will be applied and a credit made to the account as previously advised to Mr C. I am satisfied any delay in settling the account has not caused Mr C an injustice.

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Final decision

29. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman