Summary: Mr F complained on behalf of his mother, that the Council failed to disregard her property in its financial assessment and has wrongly decided that she deprived herself of assets to avoid paying towards her care costs. We found no fault.

The complaint

1. Mr F complained on behalf of his mother, Mrs J, that the Council has failed to disregard her property in its financial assessment and has wrongly decided that she deprived herself of assets to avoid paying towards her care costs. As a result she has been made liable for the full cost of her residential care and is unable to meet the costs causing distress to the family.

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The Ombudsman’s role and powers

2. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

4. I considered the information Mr F sent, the Council’s response to my enquiries, and:
• The Care Act 2014 (“the Act”)
• The Care and Support Statutory Guidance 2014 (“the Guidance”)
• The Care and Support (Charging and Assessment of Resources) Regulations 2014 (“the Regulations”)
5. Mr F and the Council 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

Relevant law and guidance

Charging for care and financial assessments

6. Councils can charge for care and support services they provide or arrange. The law states that people who have over the upper capital limit (£23,250) are expected to pay the full cost of their care. Once their capital has reduced to less than the upper capital limit, they must only pay an assessed contribution. The Regulations and Guidance set out the rules councils must follow when undertaking a financial assessment of a person’s assets (capital and income) to decide how much a person has to pay towards the costs of their residential care.
7. The person's beneficial interest in their home will be taken into account in assessing their capital assets. But a council must disregard the value of a person’s property in their financial assessment for the first 12 weeks of a permanent care home placement. The start date for this disregard is when the person would have become eligible for financial support from the council. (Section 45 of the Care and Support Statutory Guidance Annex B)

Deprivation of assets

8. 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. The Guidance says people should be able to spend the money they have saved as they wish. However, it is also important people pay their fair contribution towards their care and support costs. Local authorities should ensure people are not rewarded for trying to avoid paying their assessed contribution. Councils must therefore assess a person to determine whether they have intentionally deprived themselves of assets to avoid paying care fees.
9. A person can deprive themselves of capital in many ways, for example by putting property they own into a trust.
10. Local authorities should not assume someone has intentionally deprived themselves of assets to reduce their contribution to care fees. The Guidance says there may be other valid reasons. In deciding whether the purpose of the deprivation was to avoid care fees, local authorities should consider:
• 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?
• Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?
11. If a local authority decides a person has deprived themselves of assets to avoid paying care fees, it may treat those assets as if the person still owns them (notional capital) in its financial assessment.

What happened

12. Mrs J lived alone and owned her own home. In March 2020 a relative of Mrs J’s sought advice from the Council about options for day care services, as Mrs J was feeling socially isolated. An assessor spoke to Mrs J and the relative on the phone to consider her care and support and occupational therapy needs.
13. The assessments say that Mrs J had recently visited her GP to discuss periods of confusion. The GP had referred her for further memory testing. Mrs J was starting to struggle with some daily living tasks such as getting in and out of the bath and some continence issues. This was in addition to reduced eyesight, and severe arthritis in her hands which reduced her dexterity and impacted her ability to sit and stand. The Council sent a chair assessment pack, to consider raising her chair. It also suggested some day services and cleaning agencies.
14. In July 2020 Mr F and Mrs J met an estate planning company which advised she placed her property in a trust. Mr F says the adviser was satisfied Mrs J had capacity to make this decision.
15. Mrs J went into hospital following a fall in 2021. When she was discharged, she moved into a care home in July 2021, which she funded with her savings. She was diagnosed with moderate dementia in January 2022.
16. Mr F approached the Council in May 2022 about financial support once Mrs J’s savings fell below the upper capital limit. At that stage she had about £54,000 in savings and the care home costs were about £1,000 per week. He also asked whether the property in trust would be taken into account in the financial assessment. The Council arranged an appointment for a financial assessment, but Mr F then cancelled this to allow him to first discuss with his financial advisor.
17. Mr F came back to the Council in January 2023. It asked for information about the property trust.
18. On 5 June 2023 the Council wrote to Mr F with a decision that at the time of transfer of the property to a trust the need for future care could be foreseen. It had therefore determined that Mrs J had deprived herself of assets with the intention of reducing future care charges. Therefore the value of the property and assets in the Trust would be taken into account in the financial assessment.

Mr F’s appeal against deprivation of assets decision

19. Mr F appealed. He said in March 2020 Mrs J had felt socially isolated as he had been ill so could not support her, the memory checks were routine, the problems with standing and accessing the bath had been caused by a knee replacement and there had been no intention or expectation of needing long term care.
20. The Council rejected the appeal on 24 July 2023. It said its records showed that Mrs J had been referred for memory tests due to periods of confusion. It considered the property trust had been created to protect Mrs J’s assets from future care costs. Mr F made a stage two appeal, but on 11 September 2023 this was again rejected. The Council said Mr F had not explained what the trust was protecting Mrs J’s assets from, if not future care costs.

My findings

21. It is the Council’s responsibility to decide whether Mrs J has deliberately deprived herself of capital to avoid care costs. The Ombudsman is not an appeal body. It is not for me to say whether the disposal was deliberate deprivation, or what Mrs J’s motivation was in putting her property into a trust. My role is to decide whether the Council followed the Guidance and considered relevant information in coming to its decision. If a council considers all this information properly the Ombudsman cannot challenge its decision.
22. The Guidance says putting assets into a trust can be treated as deprivation of capital. However, any deprivation must be with the intention of reducing the amount they are charged for their care. In determining this the Council must consider two questions:
• In July 2020 could Mrs J have had a reasonable expectation of the need for care and support?
• In July 2020 did she have a reasonable expectation of needing to contribute to the cost of her eligible care needs?
23. As there is no direct evidence of Mrs J’s motive, the Council is entitled to make a judgment about it by considering whether she had a reasonable expectation of having to pay care costs in the future. It decided she did, given she had approached the GP about periods of confusion and had had some problems with daily living. The Council is not required to show that Mrs J knew what specific care and support she might need.
24. The evidence shows the Council considered whether Mrs J had a reasonable expectation of the need for care and support and of the need to contribute to the costs of her care at the time the payments were made. These were the considerations it needed to make, and there was no fault in the way it made them. I therefore cannot challenge its decision that there was deprivation.
25. The Council was therefore correct to treat Mrs J’s property as notional capital, that is as though she owned it when she went into permanent residential care. The 12-week property disregard therefore applies from the point Mrs J would have become eligible for support from the Council (i.e. from the point when her savings fell below the upper capital limit).

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Final decision

26. There was no fault by the Council. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman