Summary: Miss Y complains about the Council’s decision to include the value of her mother’s property as notional capital when assessing her finances for social care. The Council reviewed its decision but maintained that Mrs Y intentionally deprived herself of capital to avoid paying care fees. We have reviewed the Council’s decision making and, in our view, there is no evidence of fault. However, the Council did delay in making its decision which the Council will apologise and make a symbolic payment for.

The complaint

1. The Council refuses to fund Mrs Y’s social care because it says she has intentionally deprived herself of assets to avoid paying residential care fees. Miss Y, her daughter, complains about how the Council reached this decision because she says it incorrectly determined her mother’s need for social care was foreseeable four years ago.
2. Miss Y also says the Council ignored information she provided when it made the decision, failed to respond to the family’s contact and then delayed in dealing with the complaint.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I discussed the complaint with Miss Y and considered information she provided.
6. I made enquiries of the Council and considered its response. I also consulted any relevant law and guidance, referenced where necessary in this statement.
7. Miss Y 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

What should happen

8. The capital limits, specified in regulations issued under the Care Act 2014, set the levels of capital (excluding any capital that has been disregarded) that a person can have while qualifying for financial support from their local authority.
9. A person with assets above the upper capital limit is responsible for the full cost of their care in a care home. A person with assets between the capital limits will pay what they can afford from their income, plus a means-tested contribution from their assets (calculated as £1 per week for every £250 of capital between the capital limits). A person with assets below the lower capital limit will pay only what they can afford from their income.
10. Deprivation of capital is when someone knowingly reduces the value of an asset they hold for financial benefit. Regulations say a council can treat someone as ‘possessing capital’ if they find that person has ‘deprived themselves’ of it, ‘for the purpose of decreasing the amount they may be liable to pay towards the cost of meeting their needs for care and support’ (Care and Support (Charging and Assessment of Resources) Regulations 2014, Regulation 22).
11. For a council to treat someone as possessing notional capital it must be satisfied that they have:
• deprived themselves of an asset, and;
• have done so with the intent of reducing what they have to pay towards the cost of their care and support.
12. The LGSCO produced guidance for practitioners which sets out the approach we expect councils to take when deciding whether a person possesses notional capital following a deprivation of assets. In summary, this says:
• Councils should make enquiries and obtain a version of events from the service user or their representatives before making a decision;
• Councils should consider if the service user ‘must have known that they needed care and support’;
• The person must have had a ‘reasonable expectation’ they may need to pay towards care and support at the time of the deprivation; and
• Councils should consider the timing of the asset disposal to help inform a decision about the person’s motivation.

What happened

13. In 2017, and when Mrs Y was 85 years of age and registered disabled, she transferred the ownership of her house to Miss Y and her other daughter. Miss Y says her mother was very independent, but no longer wanted the responsibility for the property’s upkeep, maintenance and insurance.
14. Mrs Y moved into a residential care home in December 2020 following an unexpected diagnosis of dementia, which meant that she was no longer able to live independently. Miss Y applied to the Council for financial assistance. On the financial assessment form Miss Y explained that Mrs Y transferred ownership of her house in 2017.
15. The Council made further enquiries with Miss Y to assist the Council in deciding whether a deprivation had occurred. In response, Miss Y explained:
• Mrs Y became a widow in 1999 and solely responsible for the house and finances. She considered whether to transfer ownership of the property to her daughters at this time but decided to continue handling her own finances.
• As Mrs Y got older, she wanted to lessen her worries and responsibilities. She took legal advice before transferring the ownership of the property to her daughters.
• Following heart surgery in 2008, Mrs Y experienced occasional breathlessness and had rails fitted around her property to lessen the risk of falls.
• When Mrs Y transferred her property, she intended to remain living there independently for the remainder of her life. At this time Mrs Y had capacity to deal with her finances. However, if the need arose, Miss Y would extend her own property and Mrs Y could move in with her daughter.
• Mrs Y lacked social interaction during the COVID-19 pandemic. Miss Y extended her home, and her mother came to live with her until the end of the COVID-19 restrictions.
• From May 2020 Mrs Y experienced confusion. However, she appeared to improve both physically and mentally and in September told her daughter she would like to remain with her permanently.
• Later that year, Mrs Y was hospitalised with delirium and received a diagnosis of dementia.
16. The Council considered the information provided by Miss Y. However, it decided in May 2021 that Mrs Y had intentionally deprived herself of assets to reduce her financial contribution towards social care. The Council wrote to Miss Y setting out the reasons for its decision:
• Mrs Y was 85 years old at the time of transfer. She did not have dementia.
• In October 2015 Mrs Y was registered disabled and had a bathing assessment due to her mobility difficulties and risk of falls. Grab rails were fitted.
• Mrs Y’s daughters have held ‘Enduring Power of Attorney’ for property and finances since 2007.
• Mrs Y wanted to lessen her financial responsibility by transferring ownership of the property. However, this had already been achieved by the granting of the power of attorney and so there was no need to transfer the property for the same reason.
17. The Council also explained it had considered LGSCO decisions and focus reports about deprivation of assets before making its decision.
18. Miss Y responded to appeal the Council’s decision. She re-stated the reasons for transferring the property and clarified that it was never the intention for the family to place Mrs Y in residential care. To the contrary, Miss Y had always planned to care for her mother at home. Therefore, there was never any motivation by Mrs Y or her family to avoid paying care fees.
19. The family’s solicitor also explained that Mrs Y’s dementia diagnosis was unexpected and could not have been foreseen in 2017. The solicitor said the obligation was on the Council to prove Mrs Y’s intentions when gifting the house.
20. The Council held an appeal hearing to consider the representations. After weighing up the information, the panel decided that the avoidance of care and support charges was a significant motivation in the timing of the disposal of Mrs Y’s asset. The Council therefore maintained its decision to consider the value of the property as notional capital which meant that Mrs Y was not entitled to any financial support from the Council towards her residential care costs.
21. Dissatisfied with the decision, Miss Y approached the LGSCO for an impartial review of her complaint.

Was there fault in the Council’s actions causing injustice?

22. The LGSCO’s focus is to consider whether the Council followed the correct process when making its decision. It is not for us to decide whether a deprivation of capital occurred. If there is no fault in the decision-making process, we will not comment on the decision reached. However, if we do find fault, we may ask the Council to reconsider its decision and may recommend other action to remedy injustice caused by fault.
23. Based on the available evidence it is our view that there is no fault in the decision making. This is because the Council:
• made enquiries of Miss Y and considered her representations before making a decision. This included a letter from the family’s solicitor.
• considered whether Mrs Y and her daughters must have known whether Mrs Y needed care and support. As part of these considerations, the Council looked at records relating to a previous bathing assessment and the installation of minor adaptations in the house.
• considered Miss Y’s argument that the dementia diagnosis was not anticipated but decided in the context of the timing, Mrs Y’s age and general mobility that there was a reasonable expectation Mrs Y would need some care and support. The Council is not required to consider whether Mrs Y could have had a reasonable expectation of the need for the specific care she later required, only that there was a reasonable expectation of the need for some care and support in general.
• considered whether Mrs Y had a reasonable expectation they may need to pay towards future care and support at the time of deprivation. The solicitor confirmed Miss Y had extended her home to care for her mother and the motivation of transferring the house was not to avoid charges. The Council said it was evident from this the family was aware that social care is chargeable.
• considered the timing of the disposal and Mrs Y’s motivations. This was considered in the context of Mrs Y’s age, health and registered disability.
• maintained records of its decision making and provided Miss Y with a right of review, which she utilised. The Council considered relevant guidance, case law and published LGSCO decisions.
24. As part of her complaint, Miss Y raised concerns about the make-up of the appeal panel and its ability to fairly review Mrs Y’s case. We have considered the Council’s ‘Charging Policy for Social Care and Support’. This says, “The appeal will be determined by the Council’s Complex Case and Appeal Panel. This Panel consists of the Head of Service – Access and Digital, Adult & Communities and an Operational Service Manager. The panel can seek advice from other council officers and external sources. The Service User can meet the panel to explain why they think the decision is incorrect, if they wish to”.
25. The notes of the appeal hearing show the panel was constructed as per the Council’s policy. The Council has confirmed another officer was present during the hearing to answer any questions the panel had, but that officer was not part of the panel or decision-making process. There is no fault in the construction of the panel.
26. However, the Council has acknowledged it delayed in hearing Miss Y’s appeal. It points to significant staff shortages and the impact of the COVID-19 pandemic. The Council has proposed to apologise and make a payment of £250 in recognition of the distress, time and trouble. We welcome this proposal.

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Agreed action

27. The Council will provide evidence within four weeks of my final decision to show it has:
• apologised and paid £250 to Miss Y in recognition of the delay in hearing her appeal against the Council’s decision to include assets as notional capital.

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Final decision

28. I have completed my investigation with a finding of no fault in the substantive matter. However, there was fault caused by delay in the Council’s decision making which caused injustice to Miss Y. The actions proposed by the Council are an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman