Summary: We will not investigate Mrs X’s complaint that the Council wrongly decided she deprived her mother of assets to avoid care charges. This is because there is insufficient evidence of fault by the Council to warrant an investigation.

The complaint

1. Mrs X said the Council failed to properly apply the law when it decided she had deprived her mother, Mrs M, of assets to avoid paying care costs. Mrs X says she has been paying for Mrs M’s care for over a year which has caused financial hardship. She wants the Council to reimburse her and to pay the fees.

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The Ombudsman’s role and powers

2. 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)
3. 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. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

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

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My assessment

6. Mrs X says that in 2008, her father said he was gifting her and another family member £50,000 each. Her father died soon after and so Mrs X said they did not take the money at that time. In 2018, Mrs M entered a care home and her house was sold. At this stage, Mrs X and the other family member took the money Mrs X says they had been gifted.
7. Because Mrs M still had assets over £23,250 she paid the full cost of her care. Around 18 months ago, she ran out of assets and Mrs X has been paying some of her fees since then. This is because the Council decided Mrs M had been deliberately deprived of her assets to avoid paying care home fees. As a result it included the £100,000 that had been taken when determining if Mrs M could afford to pay for her care.
8. The Care and Support (Charging and Assessment of Resources) Regulations 2014, and the Care and Support Statutory Guidance 2014 (“the Guidance”) set out the charging rules. When a council decides to charge for care, it has to follow these rules when deciding how much a person has to pay towards their care.
9. The Guidance says anyone with over the upper capital limit (currently £23,250) can be expected to pay the full cost of their care. Annex E of the Guidance deals with the deprivation of assets. It says “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?”
10. It is not for the Ombudsman to decide if Mrs X has deprived Mrs M of capital to avoid paying care costs. We must consider if the Council has followed the correct guidance and process. We also 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 Council reached a decision.
11. In its response to Mrs X, the Council said when making decisions about deprivation of assets, it was imperative it gave particular consideration to the timing of any disposals of money. It went on to say that at the point when Mrs X took the money, Mrs M was receiving care and support in a care home. Therefore, the Council would expect her income and capital to be safeguarded to pay for that care.
12. The Council considered the relevant questions in line with the guidance. Therefore, there is insufficient evidence of fault in the way the Council has considered this matter.

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Final decision

13. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault by the Council to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman