Summary: There is no evidence the Council was at fault in the way it reached its decision about a deprivation of assets.

The complaint

1. Mr A (as I shall call him) complains on behalf of his parents-in-law (Mr and Mrs X) about the way the Council took its decision there had been a deliberate deprivation of assets to avoid care costs.

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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 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)
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)
4. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)

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How I considered this complaint

5. I considered the information provided by Mr A and by the Council. I spoke to Mr A. Both parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

6. 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.
7. 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.
8. 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.
9. 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.
10. The Care and Support Statutory Guidance (CSSG) says “Deprivation of assets means where a person has intentionally deprived or decreased their overall assets in order 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 in order to reduce the contribution they are asked to make towards the cost of that care and support.”
11. The guidance says “A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:

(a) 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?

(b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?”

What happened

12. Mr X went into residential care on 23 December 2020. His care was arranged and funded by the Council.
13. In February 2021 Mr A completed a financial assessment form for Mr X. The Council says “The form contains a declaration which confirms there will be a charge for the client’s accommodation and that this will be based on savings, investments and income. (Mr A) ticked this declaration and agreed to pay the charge from the date (Mr X) entered the home”.
14. The Council says an officer contacted Mrs A on 9 August 2021 and explained Mr X would have to pay the full cost of his placement until his capital dropped below £23,250.
15. Mr X began to fund his own placement from 29 September 2021. The Council calculated the 50/50 split of Mr and Mrs X’s joint accounts at 29 August 2021. It says Mr and Mrs X each had £49,727 at that time.
16. In March 2022, the Council’s charging section calculated Mr X’s capital would drop below the capital threshold on 14 August 2022 and a council-funded contract was put in place effective from that date. The Council says that in calculating this date, it treated Mr X as having 50% of the capital in each of the joint bank accounts.
17. The Council says more than 50% of the capital was moved out of the joint accounts in January 2023 into Mrs X’s account. The Council discussed the transfers of the money with Mr A. Mr A said he had made the transfers into Mrs X’s account to protect her 50% of the share of joint capital.
18. Mr A wrote to the Council in May 2023. He said he regarded the start of the process as April 2021 when Mr and Mrs X each had £55,000 across the joint accounts. He said Mrs X’s £55,000 should be protected. He said if they now paid the £19,793 the Council said they owed, Mr X’s capital would be reduced to £11,594.
19. The Council responded in June. It said for the purposes of financial assessment, the joint accounts had been split 50/50 in August 2021. It said by transferring more than 50% out of the joint accounts in January 2023, Mr A (acting on behalf of Mr X) had reduced the amount of capital available to Mr X for paying his care costs and the level would not otherwise have fallen below the threshold amount of £23,250. It explained the guidance and said the circumstances met the criteria to say that deprivation had taken place. It confirmed its decision would stand that Mr X was eligible for council funding from 14 August 2022.
20. Mr A complained to the Ombudsman. He said the Council had reduced Mrs X’s share of the joint account by a considerable amount by the way it had included her money in the calculations.
21. The Council says, “The transfer of the assets from the joint bank accounts to (Mr X)’s single accounts were made on 09/01/2023, long after (Mr X) first entered residential care”. It says based on the conversations with Mr and Mrs A and the information they had been given, in line with the guidance it was reasonable to assume there was an expectation of the need for care, and the family was aware of the need to contribute to the cost of the care.
22. The Council says, “Using the CSSG, Stockport Council has taken the view that more than half of the capital was moved after the client had entered care in an attempt to either backdate the local authority funded contract following the self-funding period or reduce the tariff income in the financial assessment.”

Analysis

23. The Council has shown it made Mr and Mrs A aware of the relevant costs of the placement. There is no evidence of fault there.
24. The Council calculated the 50% shares of the joint accounts before Mr X started funding his own care in September 2021. That assessment had already taken place therefore well before the transfer of money in January 2023.
25. Based on the guidance, there is no reason why the Council was not entitled to decide there had been a deprivation of assets.

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Final decision

26. I have completed this investigation. I find there is no evidence of fault on the part of the Council in the way it reached a decision about deprivation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman