Summary: Ms X complained that the Council unfairly decided to treat her mother’s former home as notional capital and her gifting of it to her son as a deliberate deprivation of an asset. The Council was not at fault.

The complaint

1. Ms X complained that the Council unfairly decided to treat her mother’s former home as notional capital and her gifting of it to her son as a deliberate deprivation of an asset.
2. Ms X says this caused her mother anxiety and distress.

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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 cannot question whether a council’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)
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 considered the information provided by Ms X and the Council.
6. I considered the relevant law and guidance as set out below.
7. I considered our Guidance on Remedies.
8. I considered the comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

9. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs.
10. 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.
11. When a council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
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 can get council support to meet their eligible needs.
13. People who have over the upper capital limit must 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.
14. The council may consider a resident has deliberately deprived themselves of an asset, such as a property they own, in order to reduce the charges they are asked to pay. The council should consider whether deprivation has occurred, what its purpose was, and the timing of that deprivation. Having considered the facts, the council may decide to treat the resident as still owning that asset when assessing how much they should pay towards their care.
15. The Care and Support (Charging and Assessment of Resources) Regulations 2014 say, “a local authority may disregard the value of any premises which is occupied in whole or in part by a qualifying relative of the adult as their main or only home where the qualifying relative occupied the premises after the date on which the adult was first provided with accommodation in a care home under the Act… A “qualifying relative” means the adult’s partner, other family member or relative who is aged 60 or over or who is incapacitated, or a child who is under 18”.

What happened

16. Ms X’s mother, Mrs Z, has needed residential care since 2008. She had a property in her name at this time but was no longer living there. Mrs Z was self-funding her care.
17. On 28 September 2015 Mrs Z gifted her property to her adult son - who had moved into the property several years prior - by transferring the property deeds into his name.
18. By January 2022 Mrs Z’s savings were nearing the upper capital limit threshold, so the Council carried out a financial assessment to assess how much she should pay towards her care.
19. In June 2022 the Council informed Ms X, who was representing her mother in property and financial matters, that it considered Mrs Z’s transfer of the property deeds to her son, to be a deprivation of an asset.
20. It said Mrs Z knew she would need long-term residential care when she transferred the property to her son. Therefore the value of the property would be assessed as capital that Mrs Z could contribute towards the cost of her care.
21. Ms X appealed the Council’s decision on her mother’s behalf. She said her brother had moved into the property because he would have been homeless otherwise and needed a property where he could have his children stay with him on a regular basis.
22. She said the Care Act 2014 allowed the Council to use discretion to disregard the value of a property in its financial assessment, where a family member who was unable to work was living in the property. Ms X said if the home was sold, her brother would most likely become homeless.
23. The Council asked Ms X when her brother began receiving benefits due to his health conditions and she responded to say that he had been in receipt of “sickness benefit” since 2019.
24. The Council’s appeal panel upheld the decision that the transfer of the property should be considered a deprivation of an asset. It said this was because Mrs Z already had care needs at the time she transferred the property to her son and she did not need to transfer the deeds of the property to her son in order for him to have a place to live. The panel reiterated that Mrs Z would therefore be liable for the full cost of her care placement.
25. Ms X complained to the Council about the panel’s decision but the Council did not uphold her complaint. Ms X then complained to the Ombudsman.

My findings

26. The Council considered the relevant law and guidance when it made its decision about the deprivation of assets. It considered whether Mrs Z had reasonable expectation that she would have ongoing care costs when she transferred the deeds of her property to her son in 2015. The Council was not at fault.
27. When Ms X appealed against the decision, the Council made further enquiries and considered the additional information Ms X provided regarding her brother’s personal circumstances. Following this, it decided not to use its discretion to disregard the value of the property when calculating Mrs Z’s capital. The Council’s decision making was in line with the relevant law and guidance. The Council was not at fault.

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Final decision

28. I have ended my investigation. I have not found fault with the Council.

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Investigator's decision on behalf of the Ombudsman