Summary: We have not found fault in the way the Council carried out a financial assessment. There was some fault relating to the delay in carrying out the assessment. The Council has agreed to apologise, offer a repayment plan for the debt and remind officers of good practice.

The complaint

1. Mrs B complains on behalf of her mother, Mrs C. Mrs B complains about the Council’s financial assessment of her mother’s capital and its decision that a deprivation of assets has taken place.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)

Back to top

How I considered this complaint

4. I have considered the evidence that Mrs B and the Council have provided, the relevant law, guidance and policies and both sides’ comments on the draft decision.

Back to top

What I found

Law, guidance and policies

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Needs assessment and care plan

6. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.

Financial assessment and timing

7. Section 17 says councils must carry out a financial assessment if they decide to charge for the care and support. This will assess the person’s capital and income.
8. Section 26 says a personal budget (which should be included in the care plan) must specify:

• the cost to the council of meeting the person’s needs
• the amount the person must pay towards that cost based on the financial assessment
• any amount the council must pay towards the cost.

9. Therefore, generally speaking, we would expect councils to complete the financial assessment once it has decided a person’s needs are eligible for council support or involvement and before creating a personal budget and care and support plan.

Threshold for council funding

10. I will only set out the regulations and Council policy insofar as they applied to Mrs C’s complaint.
11. The upper capital limit to be eligible for council funding is set at £23,250 and the lower limit at £14,250. A person with assets above the upper capital limit will have to pay for their own care. Those with capital between the upper and the lower limit will make a contribution known as ‘tariff income’ from their capital.

Deprivation of assets

12. Deprivation of assets means where a person has intentionally deprived or decreased their overall assets 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 to reduce the contribution they are asked to make towards the cost of that care and support.
13. 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:
• 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?
• did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?
14. For example, it would be unreasonable to decide that a person had disposed of an asset 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.

Notional capital

15. Notional capital may be capital which:
• the person has deprived themselves of in order to reduce the amount of charge they have to pay for their care.
16. Where a person has been assessed as having notional capital, the value of this must be reduced over time. The rule is that the value of notional capital must be reduced weekly by the difference between the weekly rate the person is paying for their care and the weekly rate they would have paid if notional capital did not apply.’

What happened

17. Mrs C is an older woman who has underlying physical and cognitive conditions which mean that she requires care and support.
18. The Council’s social worker carried out an assessment of Mrs C’s needs for care and support on 6 July 2020, after Mrs C had been admitted to hospital in May 2020. The social worker concluded that Mrs C had significant needs which could not be met without a care package. Mrs C was unable to mobilise without support and was incontinent. She needed support with all aspects of her care. Mrs C was discharged from hospital with a care package of four visits a day.
19. Mrs C’s family told the social worker that Mrs C’s finances were over the threshold of £23,250 so the social worker concluded that Mrs C would have to pay for the support package privately.
20. The assessment stated ‘[Mrs C] was made aware that if/when her savings drop below the current threshold or if there are any significant changes in [Mrs C’s] circumstances, she is able to re-refer to Social Care and Health…’
21. Mrs C self-funded her care package over the following months.
22. On 11 August 2021, Mrs C gave £10,000 to her children.
23. Mrs C contacted the Council on 24 August 2021 and said her capital was now below the £23,250 threshold and she wanted the Council to pay towards her care package. She said her capital was £21,000. The Council said Mrs C would be placed on the waiting list for a re-assessment of her needs to determine whether she was eligible for a care package funded by the Council.
24. The social worker re-assessed Mrs C’s needs on 29 September 2021 and noted that the care package had increased to 5 visits a day as Mrs C’s needs had increased. The assessment concluded that Mrs C was eligible for a package of care and said the personal budget was £311 per week, but did not say what Mrs C’s contribution to the cost would be.
25. The Council started to pay for Mrs C’s care package on 11 October 2021. The Council did not carry out a financial assessment so Mrs C did not pay any contribution from her income towards the care.
26. The Council sent the financial assessment form to Mrs B on 17 January 2022. The form asked for the details of all of Mrs C’s income and outgoings. The form stated that evidence had to be provided of any bank accounts showing all transactions over the last 12 months.
27. Mrs C moved into a care home on 9 March 2022.
28. Mrs B returned the filled in financial assessment form on 3 March 2022. Mrs B said on the form that Mrs C had two bank accounts:
• Account 1 – balance of £17,000.
• Account 2 – balance of £7,429.
29. Mrs B included a printout of bank account 1 with the financial assessment form but this printout did not show the debits or the balance of the account. She did not include a printout of bank account 2.
30. The Council asked Mrs B to send full printouts of both accounts. Mrs B sent the full printouts of both accounts in June 2022.
31. The Council carried out the financial assessment in July 2022. It identified the gift of £10,000 and told Mrs B it was going to include the £10,000 as capital as this appeared to be a deprivation of assets. Mrs B sent an email on 5 July 2022 and said it was unfair that the Council was including the £10,000 as capital in the financial assessment. She said:
• At the time of the gift, Mrs C received care from an agency and she paid for this care from her own savings. Mrs C’s children also provided a lot of the care, so surely they should be considered as carers. Mrs C’s children were not paid for providing the care as there was an expectation that they provided the care for free.
• Mrs C wanted to treat her children out of her own money which the children were reluctant to take.
32. The Council completed the financial assessment on 18 August 2022 and concluded that Mrs C’s capital was over the threshold of £23,250 as it said the £10,000 Mrs C gave to her children was a deprivation of assets. It said that, if Mrs C had not given away £10,000, her capital would have reduced to the level of £23,250 on 21 April 2022.
33. The Council said Mrs C should therefore have been self-funding her care package until 21 April 2022. It calculated the cost and sent her an invoice for £12,592 on 27 September 2022 relating to the charges for the care at home. It sent a further invoice for £7,895 for the charges at the care home.
34. Mrs B rang the Council several times in the following months as she did not agree with the Council’s financial assessment.

Mrs B’s complaint and the Council’s response

35. I have summarised Mrs B’s complaint and the Council’s responses to Mrs B and the Ombudsman.
36. Mrs B complained in October 2022 and said:
• It was her understanding that, under UK law, councils could only ‘claw back’ the cash to pay care home fees if the gifts were made within 6 months of entering care.
• When Mrs C made the gift, she was still living at home and paying for her care package privately. The family was not to know that Mrs C’s health would decline.
• Mrs C was assessed before she went into the care home and the family had always been upfront about the money, so why was the Council reclaiming the money now?
• Mrs C had never deceived the Council and had paid her council rent and council tax her entire life. She had raised five children without ever asking for a handout.
37. The Council responded and said:
• Mrs C had been known to the Council’s adult social care department since 2014. She was assessed by the Council’s social worker on 6 July 2020 as having eligible needs for care and support.
• During that assessment, the social worker explained the threshold of £23,250 to Mrs C and Mrs C accepted that she was over the threshold and would therefore have to self-fund her care package.
• The social worker told Mrs C that, once her capital was £23,250, she should contact the Council as she would be eligible for Council funding.
• The Council referred to the test for considering a deprivation of assets in the Care and Support Statutory Guidance 2014 (CASS Guidance) and said Mrs C clearly had a reasonable expectation of the need for care and support as she was already receiving care and support funded by the Council when she made the gift.
• She also knew that that she would have to contribute to the cost of the care package as the social worker had explained the threshold of £23,250 and she had been paying her care privately, before the Council started to pay.
• The Council considered these factors and concluded there had been a deliberate deprivation of assets.
38. In its response to the Ombudsman the Council added the following. It said that, in addition to the factors considered above the Council also considered the following in terms of motivation of the gift and the decision that there was a deprivation of assets:
• The Council checked the accounts and said there had been no similar gifts in the past. There was no pattern of gifting.
• The Council noted the timing of the gift and the fact that the request for Council funding was made shortly after the gift was made, but leaving enough time for the cheques to have cleared.
• The Council noted that Mrs C made the £10,000 gift at the time when her capital was £33,217 which meant that the capital reduced to £23,217 which was just under the threshold of £23,250.

Analysis

39. It is not the Ombudsman’s role to carry out a financial assessment or to say whether there has been a deprivation of assets or not. I have investigated whether there is any fault in the way the Council carried out the financial assessment and whether the Council has properly considered the relevant law, guidance and policies as well as the facts in doing so.
40. The Council took into consideration the relevant facts and the CASS Guidance. It considered the fact that Mrs C was aware of the threshold of £23,250. It said Mrs C had already been assessed by the Council to require a package of care and had been told that she was over the threshold of £23,250 to be eligible for Council funding. Mrs C was already self-funding her care package when she made the gift. The Council noted the timing and the short time lapse between Mrs C’s gift and her request for funding by the Council. The Council noted there was no pattern of gifting.
41. The Council considered these factors and the CASS Guidance and concluded that Mrs C had made the transfer to avoid paying care fees and there had been a deprivation of assets. I find no fault in the way the Council made the decision. I cannot question the merit of a decision if there is no fault in the way the decision was made.
42. I have also investigated whether there was fault in the delay in carrying out the financial assessment. The CASS Guidance and the Act make it clear that a person should know, once the care plan is in place, what the costs will be. The Council should provide the person with a personal budget at the same time as it provides the care plan.
43. The personal budget should include the amount the person must pay towards that cost based on the financial assessment.
44. The Council re-assessed Mrs C’s needs on 29 September 2021 and started paying for the care package in October 2021, but did not complete the financial assessment until July 2022 so clearly there has been a long delay.
45. However, the passage of time does not, in itself, mean there was fault by the Council.
46. I am of the view that the initial delay between September/October 2021, when the Council carried out the needs assessment and started to pay for the care package and January 2022 when the Council sent out the financial assessment form was fault.
47. I know that, in practice, there is often some delay between the provision of the care plan and the completion of the financial assessment. However, in this case, the Council should at least have started the process of the financial assessment in September/October 2021 and should not have waited until January 2022 to send out the financial assessment forms.
48. However, Mrs B did not return the financial assessment form until March 2022 and did not send the necessary evidence regarding the bank balances until June 2022 so the later delay was not the Council’s fault. The Council was not able to complete the financial assessment until this information had been sent.
49. I have considered whether Mrs C and her family suffered any injustice because of the delay in the financial assessment between September/October 2021 and January 2022. The outcome of the financial assessment would have been the same and was not affected by the delay but the family would have known a few months earlier that the gift of £10,000 would be included as capital and the invoice would have been sent earlier.
50. I appreciate that there is now a large invoice to pay so the remedy would be for the Council to offer Mrs C and her family a repayment plan if the invoice cannot be repaid immediately.

Back to top

Agreed action

51. The Council has agreed to take the following actions within one month of the final decision. The Council will:
• Apologise to Mrs B for the delay.
• Offer Mrs C and her family a repayment plan for the outstanding debt.
• Remind relevant officers of the importance of completing the financial assessment at the same time as the care plan and personal budget are being prepared.

Back to top

Final decision

52. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

Back to top

Investigator's decision on behalf of the Ombudsman