Summary: There is no fault by the Council. It made a decision there had been deprivation of assets in relation to residential care costs after considering the law, guidance and all the information supplied.

The complaint

1. The complainant, Ms X, complains the Council has not taken all information into account when deciding there has been deprivation of assets when carrying out a financial assessment for care home fees for her father, Mr Y.
2. Ms X complains of harassment from the Council, due to invoices she has received for Mr Y’s care. And, that she will suffer financially if she has to pay the invoices.

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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 read the papers put in by Ms X and discussed the complaint with her.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. Ms X and the organisation 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

Law and guidance

8. 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, or a carer’s support needs. 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.
9. When the 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.
10. 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. 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.
11. The council may consider a resident has deliberately deprived themselves of an asset 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.

Key dates

12. Mr and Mrs Y lived in the house they owned in 2017. They had carers visiting. The Council sent a financial assessment form to the family in October 2017.
13. Ms X contacted the Council in January 2018 as her father’s care needs had increased, to ask about live in care or a residential care home. The Council asked for the financial assessment form to be completed in January 2018, 2019 and 2020.
14. Mr and Mrs Y transferred the ownership of the house to Ms X in March 2018.
15. The Council received the financial assessment form in October 2021. This form said that Mr Y had not owned a property in the last 5 years.
16. The Council checked with the land registry which showed that Mr Y had owned the house until March 2018, when it was transferred to Ms X. The transfer of the house happened after Mr Y went into residential respite care on 16 January 2018.
17. The Council wrote to Ms X in December 2021, after completing the financial assessment and checks. It said that from January 2018 Mr Y would pay:
• £238 per week for the first 4 weeks.
• £138 per week from week 5.
• The full cost of the residential care from week 13 onwards.

The letter said that as Mr Y owned a property but had less than upper capital limit in savings, the Council would assist in funding the placement for up to 12 weeks. From the 13th week Mr Y’s property value was included in the calculation of capital so Mr Y would pay the full cost of the residential care home. The letter included details of how Ms X could appeal the charge.

18. Mrs Y went into respite residential care in February 2018, which became a permanent placement in October 2018. Mrs Y died in 2020.
19. The Council understands that Ms X rented out the property in 2020.
20. Ms X explained to the Council that the intention had always been for her parents to transfer the property to her. But, because of a difficult divorce this did not happen until 2018.

My analysis

21. My role is not to make a decision on whether or not deprivation of assets has occurred. This is for the Council to decide. My role is to ensure that it took all the relevant information into account when making its decision.
22. The Council should consider 3 factors when deciding if deprivation of assets has occurred:
• Could the person have had a reasonable expectation of needing care?
• Did the person have a reasonable expectation of the need to contribute towards the cost of that care?
• Was avoiding care costs a significant motivation in the timing of disposing of the asset?
23. As both Mr and Mrs Y were in residential care when the house was transferred to Ms X and had received the financial assessment forms from the Council they did have a reasonable expectation of needing care and needing to contribute financially towards it.
24. Ms X’s complaint is about the Council’s decision that the timing of the transfer of the property to her was to avoid care costs. Ms X argues that the Council did not take into account the reasons the property was not transferred earlier.
25. Ms X explained to the Council that the property was not transferred to her in 2007 because of a difficult marriage and then divorce and fears that the property would be taken away from her. I can see that Ms X provided the Council with evidence of the personal difficulties she had in 2010, including court orders.
26. The Council said ‘it decided not to exercise discretion to disregard the value of the property after the financial assessment team explored the reasons why Mr and Mrs Y no longer owned the property. It requested evidence to support the parents’ intention to gift Ms X their house 10 years prior and no evidence was provided.  The team took into account the very sensitive mitigating evidence from Ms X but noted that some considerable time had passed since these events and Ms X has lived independently in her own property from 2013. The information provided on the completed financial assessment form also sets out that Mr and Mrs Y had not owned a property for five years, which was incorrect. The Council noted the timing of the transfer of the property to Ms X, which happened when Mr Y was being financially assessed to pay for his care. The Council considers that for the reasons explored above, there was a deprivation of assets. The property was included in the financial assessment and invoices were issued in line with the usual process for payment of care’. 
27. I have looked at all the information and I find no fault by the Council. It has considered all the information Ms X has provided before reaching a decision that there has been deprivation of assets. I understand that Ms X disagrees with the decision but it is a decision the Council is entitled to reach and I cannot say it has not taken account of all the relevant information.
28. Ms X alleges the Council said it would disregard the property and not treat the transfer as deprivation, only to later change its position. I have not seen any evidence to show that a Council officer said this. Unfortunately, if it was said during a private conversation there would be no way to find out exactly what was said and why.
29. Ms X also says the Council has harassed her, by sending her invoices when she was going through the complaints process. While I understand the matter was distressing for her, I do not consider sending her invoices is fault. The Council has not started court proceedings to recover the money but the debt is rising and it does have to keep Ms X informed of the cost as her father is still in care.

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Final decision

30. I have completed my investigation of this complaint. This complaint is not upheld as there is no evidence of fault.

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Investigator's decision on behalf of the Ombudsman