Summary: Mr X complains about the Council’s handling of his mother’s financial assessment and his complaint about this, which he says has caused avoidable stress and put him to unnecessary time and trouble. The Council has apologised for the delay in dealing with Mr X’s complaint and offered to pay him and his father £200 each. It continued to delay in dealing with the follow-up actions, causing further distress. It needs to apologise and pay further financial redress. It also needs to identify the action taken to prevent similar problems happening again.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains about the Council’s handling of his mother’s financial assessment and his complaint about this, which he says has caused avoidable stress and put him to unnecessary time and trouble.

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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 a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mr X and the Council, for me to consider before making my final decision.

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What I found

What happened

5. Mr X’s mother, Mrs Y, has had dementia since 2010.
6. Mr Y has had power of attorney to manage his wife’s property and affairs since late 2012. Mr X is a replacement attorney.
7. Mrs Y had a short period of intermediate care in 2013, for which there was no charge.
8. Mrs Y and a sibling had equal shares in a property which they had inherited from their mother. They shared the income from renting the property out.
9. In June 2016 Mr X asked the Council about providing care and support, in addition to the care the family had arranged for Mrs Y. After Mr X told the Council about the property his mother owned with a sibling, it told him she would have to fund her own care. Mr X says his mother lacked the capacity to manage her own finances.
10. Later in 2016 Mrs Y’s sibling sold the property and distributed her share of the money to her children.
11. In 2017 the family asked the Council for care and support for Mrs Y. She was paying for day care but the family wanted residential respite care. After doing a financial assessment in May, the Council decided Mrs Y had deliberately deprived herself of the money from the sale of the property in order to avoid care costs. It therefore treated the money from the sale as notional capital. Although the family disputed this decision, Mrs Y paid for her own respite care. Mr X says at this time the family still had the money.
12. In September 2017 the NHS decided Mrs Y was eligible for Continuing Healthcare. This meant she did not have to pay for her care. On the understanding Continuing Healthcare would be paid indefinitely, Mr X says they spent the money.
13. In February 2021 the NHS decided Mrs Y was no longer eligible for Continuing Healthcare and its funding ended in May 2021. By this time Mrs Y was living in a care home.
14. In June the Council told Mr X its 2017 decision that Mrs Y had deliberately deprived herself of capital in 2016 still stood. He asked the Council to review its decision. When it did so in July 2021, it confirmed the original decision.
15. Mr X complained to the Council in November 2021 about:
• the failure to do another financial assessment in May 2021, taking account of his mother’s up-to-date circumstances, including her NHS funding for Continuing Healthcare;
• basing its decision on the flawed 2017 decision on deprivation, which did not fully explore or evidence his mother’s “intention”;
• the incomplete minutes of the Council’s Deprivation Panel meeting in May 2017, which reviewed the original decision on deprivation, and the failure to provide minutes of the July 2021 meeting or the evidence supporting the decision on deprivation.
16. Mr X said, without knowing NHS Continuing Healthcare could be removed, his mother could not have had a reasonable expectation of needing to contribute to the cost of her eligible care needs, which the Council had told him was necessary to establish a deliberate deprivation of assets to avoid paying for care.
17. After meeting Mr X in November 2021, the Council confirmed the details of his complaint in January 2022. It asked an officer to deal with his complaint in March 2022. It apologised to him for the delay.
18. In November 2022 the officer produced a 21-page report on Mr X’s complaint. After holding an adjudication meeting with the officer in January 2023, the Council wrote to Mr X with its decision and sent him a copy of the report. It upheld the complaint about the failure to do another financial assessment in May 2021 and agreed to complete another one. While the Council accepted there were some flaws with its 2017 decision on deprivation, it did not uphold the complaint about its 2021 decision. This was because the evidence showed in December 2016 Mrs Y had a reasonable expectation of the need for care and support and had a reasonable expectation of needing to contribute towards the cost of her eligible care needs. The Council decided that while avoiding care costs may not have been the primary reason for depriving her of the capital, it remained a significant factor.
19. However, the Council upheld the complaint about the incomplete minutes of the May 2017 Deprivation Panel meeting and the failure to provide minutes of the July 2021 meeting.
20. The Council accepted it had taken too long to deal with Mr X’s complaint and apologised for any distress and inconvenience caused. It also offered to pay Mr X and Mr Y £200 each in recognition of the added stress caused by its investigation and the “unquestionable amount of time” it had taken to complete it. The Council agreed to carry out the recommendations made in the officer’s report:
• In similar circumstances to offer a financial assessment and process it in line with the Council’s procedures.
• Information shared with customers and families must be clear and consistent and provide a rationale with reference to the evidence that supports any decision made.
• Tell customers or their legal representatives they can make a freedom of information request for information.
• Respond to emails in a timely manner and if required send an acknowledgement email to confirm receipt and that a response would be provided in due course.
21. After meeting Mr X in May 2023, the Council completed another financial assessment for Mrs Y. This took account of notional capital of £71,336 (from the sale of the property owned with a sibling) and therefore decided she could afford to pay the full cost of her care.
22. The Council did not send the decision to its Deprivation Panel until August. After the meeting, it wrote to Mr X and explained why it had decided the gifting of the proceeds of the sale of the inherited property was a deliberate act in order to obtain funding from the Council. It said:
• Mr X knew Mrs Y would be expected to pay for her own care as she had owned an asset which had since been sold.
• As her power of attorney it had been his duty to act in her best interests, given that she was already paying privately for care and support.
• Given her diagnosis it would have been reasonable to expect her care needs to increase.
• Someone’s wishes, as detailed in their will, were only actionable on their death.
23. The Council said the information it had suggested Mrs Y may no longer be a self-funder, so it would carry out a diminishing capital calculation to determine when her funds (including her notional capital) had dropped below the upper capital threshold (£23,250). The Council has been paying for Mrs Y’s care while it dealt with Mr X’s complaint.

Legal and administrative background

24. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 (the Regulations), and the Care and Support Statutory Guidance 2014 (the Guidance). When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
25. The rules state that people who have over the upper capital limit (£23,250) have to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
26. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of their care.
27. The Guidance says:
1. “When undertaking or reviewing a financial assessment a local authority may identify circumstances that suggest that a person may have deliberately deprived themselves of assets in order to reduce the level of the contribution towards the cost of their care. In such circumstances, the local authority should have regard to this guidance. Clearly, local authorities should treat this issue with sensitivity and care.” (Annex E, paragraph 3)
2. “People should be treated with dignity and respect and be able to spend the money they have saved as they wish – it is their money after all. Whilst the Care Act 2014 represents an important step forward in redefining the partnership between the state and the individual, it is important that people pay the contribution to their care costs that they are responsible for. This is important to the overall affordability of the care and support system. A local authority should therefore ensure that people are not rewarded for trying to avoid paying their assessed contribution.” (Annex E, paragraph 4)
3. “But deprivation should not be automatically assumed, there may be valid reasons why someone no longer has an asset and a local authority should ensure it fully explores this first. However, the overall principle should be that when a person has tried to deprive themselves of assets, this should not affect the amount of local authority support they receive.” (Annex E, paragraph 5)
4. “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:”
1. “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?”
2. “did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?” (Annex E, paragraph 11)
5. “For example, it would be unreasonable to decide that a person had disposed of an asset in order 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.” (Annex E, paragraph 12)
6. “If a local authority decides that a person has deliberately deprived themselves of assets in order to avoid or reduce a charge for care and support, they will first need to decide whether to treat that person as still having the asset for the purposes of the financial assessment and charge them accordingly.” (Annex E, paragraph 18)
7. “As a first step, a local authority should seek to charge the person as if the deprivation had not occurred. This means assuming they still own the asset and treating it as notional capital or notional income.” (Annex E, paragraph 19)
28. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
29. Regulations do not say how long a complaint investigation should take. But they do say an expected timescale must be explained at the start, usually in discussion with the complainant. If the complainant does not want to discuss this, the responsible body must decide the timescales and confirm them to the complainant in writing. The body must keep the complainant informed of progress during the investigation ‘as far as reasonably practicable’. If the responsible body has not provided its response after six months (or after a longer period agreed with the complainant), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

Is there evidence of fault by the Council which caused injustice?

30. Mr X’s complaint appears to have been based on the mistaken understanding that changes in Mrs Y’s circumstances, most notably the NHS’s decision to end her Continuing Healthcare funding in 2021, had implications for the decision on whether she, or those acting on her behalf, deprived her of capital in 2016 to avoid care charges. But that was not the case. The only circumstances relevant to the decision on deprivation were those leading up to the decision to distribute the proceeds of the sale of the property to her children in 2016.
31. The Council accepts it delayed in dealing with Mr X’s complaint. It apologised and offered to pay him and Mr Y £200 each for the distress and inconvenience they had been put to. There are no grounds to ask the Council to do more than that for its faults up to February 2023. However, the Council compounded its initial faults by taking four months to do another financial assessment and another three months to put the deprivation decision to its Panel. Neither action served any significant purpose, as the Council had made a sound decision on deprivation in 2021. Nevertheless, given the time Mr X had to wait for a response to his initial complaint, the Council should have given greater priority to completing the follow-up actions.

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Agreed action

32. I recommended the Council:
• Within fours weeks writes to Mr X and Mr Y apologising for the additional delays and the distress they have caused, pays each of them a further £100, and, if it has not already done so, completes the diminishing notional capital calculation for Mrs Y; and
• Within eight weeks confirms the action it has taken to implement the recommended service improvements agreed in January 2023, and identifies the action it is going to take to ensure complaints are dealt with more promptly and follow-up actions are carried out without delay.
33. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation on the basis there has been fault by the Council causing injustice which warrants a remedy.

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Investigator's decision on behalf of the Ombudsman