Summary: The complaint is about how the Council completed a financial assessment for the charge for Mr Y’s care package. We did not uphold most of the complaints. However, the decision to treat the purchase of a car as a deliberate deprivation of capital was flawed as the decision-maker did not apply the relevant tests in statutory guidance and there was no contemporaneous written record. The Council will apologise and reconsider the decision.

The complaint

1. Ms X complained for Mr Y as his attorney for finances. She said the Council:
1. Did not properly inform her about the rules and guidelines to work out the charges for Mr Y’s care, especially about the minimum income guarantee;
2. Refused to include the costs of a car and felling a tree as disability related expenditure (DRE);
3. Treated cash in a joint account as if it belonged just to Mr Y; and
4. Did not offer a face-to-face appointment.
2. Ms X said the Council’s fault has caused her avoidable distress and confusion and a possible financial loss to Mr Y.

Back to top

The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

Back to top

How I considered this complaint

5. I considered Ms X’s complaint to us, the Council’s responses to her complaint and documents in this statement. I discussed the complaint with Ms X.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

7. The LGSCO’s Principles of Good Administrative Practice says we expect councils to act fairly and proportionately and to be open and accountable. This includes:
• Explaining clearly the rationale for decisions and recording them;
• Stating the criteria for decision-making and giving reasons; and
• Keeping proper and appropriate records.
8. The government sets a minimum income guarantee (MIG) which changes from time to time. This is the minimum amount of money (income) people in different age and disability groups must be left with before a council can charge them for their care. For 2022/2023, for a single person of pensionable age, it was £194.60.

(Social care – charging for care and support: local authority circular – LAC (DHSC) (2022)1)

9. A council must provide local people with information and advice about care and support for adults and support for carers. (Care Act 2014, section 4)
10. Care and Support Statutory Guidance (CSSG) is statutory guidance which councils should normally follow. It says councils can charge people for care they provide and if there is a charge, this should follow national regulations on charging. I have summarised relevant paragraphs of CCSG below:
1. Councils must be transparent, so people know what they will be charged. There should be enough information available so they can understand any charge. (Paragraphs 8.2 and 8.3)
2. Councils should provide or signpost to advice and information when people come into contact with them. They should provide information to help people understand what they may have to pay, including an explanation of the charging framework. (Paragraph 3.43)
3. The financial limit, called the upper capital limit sets out what point a person can access local authority funding for care. The upper limit is £23,250. If a person has savings (capital) over the upper capital limit, a council may charge them the full cost of their care. When their capital falls below the upper limit, they are entitled to seek means-tested support from the authority. This means the council will do a financial assessment of the person’s assets and will charge based on these rules. (Paragraphs 8.11 and 12)
4. Some types of income are not taken into account in a financial assessment. This is called ‘disregarded income’ and includes some benefits, earnings and some tax credits.
5. Capital includes savings in a current bank account. Capital normally belongs to the person in whose name it is held, the legal owner. Where the council disputes ownership, it should seek written evidence to prove ownership (Annex B, Paragraphs 6(g), 10 and 11)
6. Where a person has joint beneficial ownership of capital, the total value should be divided equally between the joint owners, except where there is evidence a person owns an unequal share. (Annex B, Paragraph 12)
7. A council may treat a person as having capital when the person has deliberately decreased their assets as a way of reducing their charge. A person can deprive themselves of capital in many ways including making a gift to someone else or converting it into something that would be disregarded under the financial assessment like personal possessions. The person must have known they needed care and support and have reduced the assets in order to reduce their contribution. (Annnex, E Paragraphs 6 and 8)
8. There may be many reasons for a person depriving themselves of an asset. A council should consider the following before deciding whether deprivation is for the purpose of avoiding care and support:
1. Was avoiding the charge a significant motivation in the timing of the disposal of the asset: at the time the capital was disposed of, could the person have a reasonable expectation of the need for care and support?
2. Did the person have a reasonable expectation of needing to contribute towards the cost of care? (Annex E Paragraphs 10 and 11)
9. Disability Related Expenditure (DRE) are expenses that a person has to pay connected to their disability. They are an allowance in a person’s financial assessment and reduce their weekly charge. DRE can include specialist items and services such as wheelchairs. They can include extra heating or laundry costs, equipment and aids and regular payments such as wheelchair insurance and gardening costs. A council must leave a person with enough money to pay for necessary DRE to meet needs that are not being met by the local authority. The care plan may be a starting point for considering DRE, but councils need to be flexible. It may be reasonable not to allow for an item where a cheaper alternative is available. (Annex C, Paragraphs 39 and 41)
11. The Council has guideline allowances for DRE. This explains that when it carries out a financial assessment, it considers a person’s disability benefits to consider offsetting allowances for expenses arising from a disability. The allowances are:
1. £10 a week for the lower rate of Disability Living Allowance (DLA) care
2. £15 a week for medium DLA care, low Attendance Allowance (AA) or standard Personal Independence Payment (PIP)
3. £25 a week for high DLA care, AA or PIP.
12. The Council may increase DRE to more than £25 a week in individual cases.

What happened

13. In August 2022, the Council completed a social care assessment for Mr X and decided he was eligible for care and support. The covering letter, which the Council sent out in September, said social care was chargeable and there would be a financial assessment. The letter gave a link to the Council’s website for more information on social care charges.
14. The Council’s letter of 8 November said Mr Y needed to have a financial assessment to work out his care charge. It asked him to complete a form setting out his income and capital. The letter included a link to information on the Council’s website about adult social care charging. Ms X completed all the paperwork on her father’s behalf. The letter also included a brief summary of the main charging rules.
15. On 25 November, a finance officer emailed Ms X asking about a transaction for £4000 for fencing and about four other payments on 16 August. Ms X provided a receipt and responded saying the account was a joint bank account in hers and Mr Y’s name and asked if the Council was aware of this and if so, if it would be treating only half the funds in the account as Mr Y’s. The finance officer said the bank account statements Ms X provided between April and October showed only money being paid into the account belonged to her father. So, unless she could provide evidence that she paid any of her money into the account, then the balance could not be split.
16. On 2 December, the finance officer emailed Ms X saying her father was currently only attending a day centre once a week which cost £35 and had no other care and support package. The email went on to explain as he currently had savings above the upper capital limit, he would need to pay the full cost of his care. The finance team confirmed this in a letter.
17. On 16 December, the Council issued an amended notification of charges and emailed Ms X a DRE appeal form. She returned the completed form and set out requests for DRE for additional care, laundry, chiropody, cleaning and gardening. Ms X provided handwritten receipts (in her writing) for these services. Some of the services she was claiming as DRE were provided by her and her husband.
18. On 16 January, the Council wrote to Ms X setting out its decision on DRE. It included allowances for gardening, cleaning, chiropody, a meal out, but not private care as Mr Y was now receiving a care package for this.
19. In January 2023, Ms X complained to the Council about the matters she has raised with us. She asked if someone from the Council would visit her to explain the charges. The Council’s first response to the complaint said it had reviewed the financial assessment and it was completed in line with the charging policy and with CSSG. The response went on to say:
• Ms X needed to submit receipts to support the handwritten evidence of expenses she had submitted for DRE and
• The MIG was £194.70 a week for her father. This was set by the government and is the amount the government considers appropriate to cover his living costs.
20. In February 2023, the finance team emailed Ms X to say the Council had allowed £1600 for decorating and £750 for tree felling. It went on to say that the £8000 gift to her of a car will not be allowed and the money would be included as notional capital. (The Council had decided Ms X had deliberately deprived Mr Y of capital and so it was going to treat Mr Y as still possessing the £8000 meaning the date his capital would fall below the upper threshold would be put back.)
21. In April, the finance team emailed Ms X after a phone call to confirm the car would not be allowed as a DRE if it was transferred into his name because Mr X had funded transport to the day centre.
22. Ms X was unhappy and escalated her complaint. The second complaint response in April 2023 said:
• She contacted social care in August 2022 and asked for an assessment for Mr Y;
• The papers indicate staff advised her Mr Y would need to have a financial assessment; and
• The social care assessment included a link to the website which had information about charging.
23. The Council told me Ms X asked for a visit when she complained, but the relevant officer instead had a phone call with Ms X to give her the opportunity to ask questions. Ms X told me she wasn’t expecting to have an in-depth discussion by phone and the officer didn’t give her the option of an appointment.
24. Since complaining to us, the Council has revised Mr Y’s financial assessment to include additional gardening costs (tree felling) as a DRE and to reflect an increase in his Attendance Allowance and backdated it to the date of increase.

Comments from the Council.

25. In relation to the car, the Council’s finance manager told me:

“Ms X brought a car for herself from Mr Y’s funds. As this was an asset in her name, we advised that we would not reduce the capital and include this as notional capital. Further conversations were had around this, and Ms X asked if we would take the car off the capital balance if she transferred it back into his name. Ms X has advised that she uses the car for the following:

‘My husband and I are both retired, and only need one car, but 2 cars are required to enable us to take him (Mr Y) to appointments, collecting prescriptions, going to the laundrette due to the extra washing and drying of bedding, shopping, collecting him to bring him to our house for visits, which helps with his mental health. My father enjoys going out in a car, and as £194.70 per week, won’t cover the cost of taxis each week, the cost of a car and the running of it has to come out of the capital.’

The council considered that these could be made in a more cost-efficient way then the £8000 (the cost of the car), for example online shopping deliveries. It also considered that Ms X is being paid for shopping and laundry, whilst her husband is being paid to take Mr Y out for recreational trips, therefore if we were to allow the expense of the car then we are likely to be paying for these twice, once in DRE and once from the capital. However, we also considered whether this was required for the assessed need which was daycare. I corresponded with the Social Worker and had a discussion where they advised it was not required as he had transport and they also advised that Ms X lived nearby. As the transport need was being made, then we considered that the cheaper alternatives could be looked at, that we were already allowing for the expenses claimed by Ms X and confirmed we would not allow the car as expenditure from the capital.”

Was there fault?

26. Everyone pays a charge for most social care, except for specific things which aren’t relevant to Mr Y’s case. The LGSCO’s role isn’t to decide what the charge should be. We consider whether the Council followed relevant law and guidance on charging (CSSG). If it did, we will not uphold a person’s complaint. If we find a council did not have regard to CSSG, we are likely to find fault.

The Council did not properly inform Ms X about the rules and guidelines to work out the charges for Mr Y’s care, especially about what is included in the minimum income guarantee

27. The Council sent a copy of the social care assessment and a letter which included a link to the Council’s website which has information about financial assessments. The financial assessment included a breakdown of how the Council had calculated the charge. The Council acted in line with paragraphs 8.2, 8.3 and 2.43 of CSSG, so there is no fault.
28. The government sets the MIG (which is the amount the government has decided is necessary to cover a person’s daily expenses), not the Council. Council officers cannot explain how the government does this, as this information is not in the charging rules or guidance. The circular summarised in paragraph eight explains the amount but there is no publicly available information about how the government decides what to include in the MIG. It goes up some years to reflect increases in the cost of living. The Council cannot give Ms X the explanation she seeks and it has discussed charges including the MIG with her on the phone and in writing in the complaint responses. So there is no fault.

The Council refused to include the costs of a car and felling a tree as DRE

Tree felling

29. The Council has included DRE allowances for gardening. It is entitled to require proof of expenses (receipts) to check the expense has been incurred. This is in line with Annex C of CSSG and there is no fault.

Car

30. The Council has made two decisions in relation to the car. It:
1. Refused to treat it as DRE.
2. Treated the purchase of the car as a deliberate deprivation of capital.
31. In relation to (a), there is no fault. The Council is entitled to consider the cost of cheaper alternatives when assessing DRE. Annex C Paragraphs 39 to 41 of CSSG allows for this.
32. In relation to (b) the Council has not evidenced it considered the matters in Annex E Paragraphs 10 and 11 of CSSG. The Council has not explained how it reached the conclusion that a significant motivation behind the purchase was to avoid care charges (as opposed to for the convenience of having a second car which Mr Y could benefit from.) Had the Council considered these matters, I would expect it to have set them out in its response to my enquiries. I would also expect the Council to have specifically explored timing of the purchase and motivation with Ms X before making its decision. There is no evidence it did. This is not in line with our Principles of Administrative Practice which expect a clear contemporaneous record of the decision. This is fault.

The Council treated cash in a joint account in both their names as if it belonged just to Mr Y

33. Generally, cash held in joint names is split 50/50 but this isn’t an absolute rule. The Council is entitled to question joint ownership and seek evidence where it considers there is an unequal share. The Council informed Ms X that the bank statements she had submitted indicated the account only contained payments in of Mr Y’s money. It asked Ms X to explain. She does not appear to have responded. The Council acted in line with Paragraphs 10 to 12 of Annex B of CSSG and there is no fault.

The Council did not offer a face-to-face appointment

34. There is no requirement for the Council to meet in person with Ms X. The finance manager spoke to Ms X on the phone and discussed the charging process. This is in line with paragraphs 8.2, 8.3 and 2.43 of CSSG, so there is no fault.

Back to top

Agreed actions

35. I have not upheld most of Ms X’s complaints about the charging process. However, the Council failed to properly explain, applying Annex E of Care and Support Statutory Guidance why it considered purchasing a car was a deliberate deprivation of Mr Y's capital.
36. The aim of our remedies is to try and put the person back into the position they would have been in ‘but for’ the fault. The Council has agreed, within one month of my final decision to:
1. A different officer reconsidering the decision to treat the purchase value of the car as notional capital, applying the guidance in Paragraphs 10 and 11 of Annex E of Care and Support Statutory Guidance. The Council should provide us with a written record of the fresh decision. If it alters Mr Y’s financial assessment, the Council should set this out as well.
2. apologize to Ms X for the avoidable confusion.
37. We will require evidence of compliance.

Back to top

Final decision

38. The complaint is about how the Council completed a financial assessment for the charge for Mr Y’s care package. We do not uphold most of the complaints. However, the decision to treat the purchase of a car as a deliberate deprivation of capital was flawed as the decision-maker did not apply the relevant tests in statutory guidance and there was no contemporaneous written record. The Council will apologise and reconsider the decision.
39. I completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman