Summary: Mr X complained on behalf of his mother, Mrs Y, that the Council unfairly determined gifts of money made to family members were intentional deprivation of assets available to pay for her care. Mr X says this has caused them distress and has affected them financially. We have found fault in the Council for failing to consider motivation in its decision on whether deprivation of assets had taken place. We recommend the Council apologise and review its decision in line with the applicable guidance.

The complaint

1. Mr X says the Council unfairly determined gifts of money made by his mother to family members were intentional deprivation of assets available to pay for her care fees. Mr X says when the gifts were made, they were not aware that Mrs Y’s situation would change and additional care would be required.
2. Mr X says the decision has caused the family distress and has affected them financially.

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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 have discussed the complaint with Mr X and reviewed the correspondence he provided. I have made enquiries with the Council and considered the comments and documents it provided. Mr X and the Council were invited to comment on my draft decision. I have considered the comments they have made before making this final decision.

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What I found

6. 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” (CSSG). When the Council arranges a care home placement, it must follow these rules when completing a financial assessment to decide how much a person must pay towards the costs of their residential care.
7. The rules state that people who have over the upper capital limit, £23,250, should 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.
8. Regulation 22 says councils must treat people as still having capital they have deprived themselves of for the purpose of reducing the amount they need to contribute to the costs of their care. Capital treated this way is often called ‘notional capital’.
9. However, the CSSG says councils should not automatically assume deprivation. It says there may be valid reasons someone no longer has an asset and councils should ensure they fully explore this first.
10. Annex E of the CSSG says that when deciding if someone has deprived themselves of assets, councils should consider:
1. Whether avoiding the care and support charge was a significant motivation;
2. 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?; and
3. Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

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What happened

11. Mrs Y had been receiving care at her home since around 2019. Mrs Y’s care was increased in early 2021 to allow her to be assisted to have a shower.
12. In early November 2021 Mr X transferred some money on Mrs Y’s instruction to family members. Mr X says this was discussed with Mrs Y shortly before the transfer.
13. The following day Mrs Y had a fall and was admitted to hospital. The intention was for Mrs Y to return home but unfortunately this was not possible, and Mrs Y moved to a care home.
14. The Council completed a financial assessment and liaised with Mr X about the payments made by Mrs Y to family members shortly before entering the care home.
15. The Council concluded the amount given by Mrs Y to family members should be included as notional capital in the financial forecast as evidence of previous similar gifting could not be provided.
16. Mr X appealed this decision in July 2023 because he did not believe the Council could show the funds had been intentionally moved knowing that Mrs Y’s care needs would increase.
17. The Council responded to confirm why it had included the money as notional capital. It explained Mrs Y had been receiving care services since 2019 and therefore knew she had a need for care. It also said both Mrs Y and Mr X had been told of the threshold for having to pay for care previously so would have had a reasonable expectation of needing to contribute to the costs of care.
18. The Council went on to explain gifts which had been considered as notional capital could not be shown to be a previous pattern of spending and therefore concluded on the balance of probabilities, there had been deprivation of assets.
19. Mr X was unhappy with the explanation and brought his complaint to the Ombudsman.

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Analysis

20. We expect Councils to follow the CSSG guidance and guidance produced by the Ombudsman. The fact that an individual may have an existing care and support need or know in general terms that they may be expected to pay for care, may not solely be sufficient grounds to demonstrate there was an intent to benefit from deprivation. The Council still needed to evidence how it considered the individuals motivation in disposing of an asset and explain the reasons for its decision.
21. The Council has shown it considered whether there was a reasonable expectation of the need for care and support and the need to have to contribute to this. However, it did not show that it considered whether there was a significant motivation to benefit from the deprivation. This was fault, and not in line with the CSSG guidance.
22. The Council should have considered motivation and explained this in its decision, and in failing to do so, the Council has caused Mrs Y and her representative distress and confusion.

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Agreed action

23. I recommend the Council should within one month of this decision:

• Write to Mr X and apologise for the fault noted above.
• Review its decision taking into account the CSSG and fully explain its reasoning to Mr X.
• Remind officers in writing that they should address the issue of motivation when considering deprivation of assets cases.

24. The Council should provide us with evidence it has complied with the above actions.
25. The decision made by the Council regarding whether deprivation has occurred may remain the same following a review. We cannot consider the outcome if there has been no fault in the way in which the Council has reached its decision.

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Final decision

26. I have found fault in the Council for failing to consider motivation in its decision on whether deprivation of assets had taken place.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman