Summary: Mr X complained the Council delayed carrying out a financial assessment for his mother Mrs Y’s contribution to her care costs and then wrongly decided his mother has deprived herself of assets to avoid care costs. There was no fault in the way the Council decided Mrs Y had deprived herself of assets. Through its complaints investigation the Council identified faults with its initial decision making regarding deprivation, delay in the financial assessment process and in information provided to the family. It offered to apologise and pay Mr X £250 which was appropriate. It also agreed to take action to prevent recurrence of the faults.

The complaint

1. Mr X complained the Council delayed carrying out a financial assessment for his mother’s contribution to her care costs and then wrongly decided his mother has deprived herself of assets to avoid care costs. He also complained it failed to clearly explain her care costs. He wants the Council to confirm it will not take her property into account and provide a breakdown of the care fees.

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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 have considered the information provided by Mr X and have discussed the complaint with him on the telephone. I have considered the information provided by the Council in response to my initial enquiries and the relevant law and guidance.
5. I gave Mr X and the Council the opportunity to comment on my draft decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

6. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests. There are two types of LPA: property and finance and health and welfare.

Charging for care and support

7. The Care Act 2014 (sections 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.
8. Where the person has capital above the upper capital limit of £23,250 the person will need to pay the costs of their care in full. Otherwise, the council will carry out a financial assessment to determine how much they should contribute to the cost of their care.
9. The “personal expenses allowance” (PEA) is the amount of money a council must ensure a resident provided with care in a care home is left with after any charges are made for their care. It is set by the Government and in 2022/23 was set at £25.65 a week.
10. When someone enters a care home as a permanent resident the value of their main or only home must be disregarded for 12 weeks in calculating their care costs.
11. Regulations say a council can treat someone as possessing capital if they decide a person has deprived themselves of it for the purpose of decreasing the amount they may be liable to pay towards the cost of meeting their needs for care and support. The Care and Support Statutory Guidance sets out that where a council considers a person has deliberately deprived themselves of assets to reduce the contribution to their care costs it can treat them as still having the assets. The amount of those assets is called notional capital.
12. The Guidance says there may be many reasons for a person depriving themselves of an asset and the council should fully explore this first. The council must consider:
• If the user of services “must have known that they needed care and support”.
• Did the person have a “reasonable expectation” they may need to pay towards that care and support at the time of deprivation.
• The timing of the disposal of the asset. The guidance tells a council to ask itself if “at the point the capital was disposed of could the person have a reasonable expectation of the need for care and support?”. In addition, “did the person have a reasonable expectation of needing to contribute to the cost of their eligible needs?” at that time.

What happened

13. The following is a summary of the main events relevant to this complaint.
14. Mrs Y lived in a former council property which she purchased under the ‘Right to Buy’ scheme in the late 1980s. This scheme allows council tenants to buy their own home at a discount. Mr X says Mrs Y in part used some funds left as an inheritance to one of her children, Mr Z, following her husband’s death towards the purchase price.
15. Mrs Y has a number of health conditions which affect her mobility. Mr X and his siblings provided support to Mrs Y with cleaning and shopping, meals and weekly showering.
16. In September 2021 Mrs Y transferred the property to a family trust with 25% of the property being passed to each of her three adult children. The remaining 25% remained in Mrs Y’s name, to be transferred to Mr Z (whose inheritance was used towards the purchase price) on her death.
17. Later that same month Mr X found Mrs Y on the floor after a fall. Mrs Y was admitted to hospital. After her discharge Mrs Y received some support paid for by covid funding (funding to provide support for up to four weeks to support hospital discharges). Mrs Y cancelled the care package in December 2021 and the family continued to provide her with support. At the time the family declined a financial assessment due to only having a few calls prior to cancelling the service.
18. In March 2022 Mr X contacted the Council as Mrs Y’s care and support needs had increased. A care coordinator arranged to assess Mrs Y’s care needs. Mrs Y agreed to a respite stay in a care home and Mr X found a placement for three weeks which family funded on a private basis.
19. Mr X identified a care home for a longer term stay and Mrs Y moved there in late April 2022. The family moved Mrs Y to another care home in May 2022 where Mrs Y still lives.
20. In October 2022 Mr X called the Council. Mr X was unhappy Mrs Y had yet to be financially assessed. Following Mr X’s call the Council arranged for a welfare rights/benefits advice assessment for Mrs Y. Mrs Y’s care coordinator completed her needs assessment and care and support plan in late October 2022.
21. In November 2022 a Council officer completed a financial assessment with Mr X and one of his siblings who holds LPA for Mrs Y. The officer requested information regarding Mrs Y’s property. In the meantime, it disregarded the value of Mrs Y’s property for 12 weeks in the financial assessment.
22. The Council officer contacted Mr X in January 2023 to request further information regarding the family trust.

The first charging review panel

23. The Council’s charging review panel, in January 2023, discussed the financial assessment. It deferred its decision as it sought additional information about the timing of the transfer of the property. At a further meeting in February 2023 the Council considered information from Mr X about the transfer, notes from Mrs Y’s GP and notes showing Occupational Therapy involvement in 2020 resulting in a request for adaptations.
24. It decided “the son’s account/timeline of events leading up to [Mrs Y] requiring care and support are inconsistent with case notes and referral made by her GP in July 2021 which stated the client was bed bound. Therefore, the meeting had significant concerns regarding the intention of creating the family trust and the timing of its creation given that it is dated [September 2021] and [Mrs Y] was admitted to hospital on [later in September 2021] and a financial assessment was declined”.
25. The Council wrote to Mr X to advise it considered the transfer of Mrs Y’s home to a family trust to be a deliberate deprivation of capital assets.
26. Mr X spoke to a senior welfare rights officer in early March 2023. Mr X said the GP information was incorrect and he had evidence to prove this. The welfare rights officer advised Mr X to contact the Council’s customer relations team to escalate this to a complaint.
27. In April 2023 Mrs Y’s solicitor wrote to the Council. They said Mrs Y was anxious to ensure her property was secured for the eventual repayment of the loan made to her by Mr Z and for any maintenance works he carried out. The letter said as the house was a council property Mr Z could not have purchased it in his sole name or jointly with Mrs Y as he was not the tenant, therefore the assumption was that Mrs Y was holding the property on trust for him.
28. In May 2023 the Council’s charging review panel deferred its decision on Mrs Y’s case. Mr X had provided information which showed Mrs Y was not ‘bed bound’ for two years. It requested proof of the loan from Mr Z to Mrs Y.

The second charging review panel

29. In June 2023 the Council’s charging review panel considered the case. It considered the information Mr X provided, OT records and information from Mrs Y’s solicitor. It decided “the timing of the creation of the Trust is questionable. The creation of the trust in [the Council’s] view puts [Mrs Y’s] beneficial interest in the property out of the scope of our charging policy. It was not necessary to put the property in trust to reflect the carious interests this could have been archived via a tenancy in common or her will. The meeting’s view that [Mrs Y] has a 60% beneficial interest in the property as a result of the discount afforded to her when the property was purchased”.
30. It wrote to Mr X following the meeting. It said:

“no explanation has been provided with regard to the rationale for the creation of the Trust and the Council considers that, as a result of her deteriorating medical condition, there was a realistic prospect of [Mrs Y] requiring residential care at some future date. The Council does accept that [Mr Z] may have a beneficial interest in the value of the property but would point out that the value of the discount granted to [Mrs Y] under the Right to Buy scheme was 60% of the value of the property at the relevant time. Accordingly, the Council considers that at least 60% of the current value of the property should be taken into account in the financial assessment.”

The Council’s complaint response

31. Mr X remained unhappy and complained to the Council. It wrote to Mr X in late July 2023 summarising the complaint which included his concerns about the deprivation of assets decision, delays in the financial assessment process and a large debt accruing whilst the situation was resolved. An officer investigated the complaint and wrote to Mr X in September 2023 enclosing a copy of its investigation report. The investigating officer found:
• The first charging review panel did not properly consider whether avoiding care costs was a significant motivation and whether Mrs Y had a reasonable expectation of needing to contribute to the cost of her eligible care needs.
• The first charging review panel’s decision letter to Mr X was brief and did not give a clear account of the decision-making rationale.
• They were satisfied the second charging review panel considered the three key questions [as set out at paragraph 13 above] and followed the guidance as it had made enquiries of the family and had considered this, Mrs Y’s will and deed of trust and information from her solicitor. The timing of setting up the trust was a significant factor in the panel’s decision making.
• The Council had considered Mrs Y’s desire to protect Mr Z’s share in the property and had acknowledged his share would be considered and protected when assessing the property as capital.
• Mrs Y had received a 60% discount on the purchase price of the property under the Right to Buy scheme. The Council accepted Mr Z had a beneficial interest in the property as money left to him was used towards the purchase price and Mrs Z had stated in her will her desire to recompense Mr Z for the loan and for maintenance he had carried out over the years. The Council therefore considered Mrs Z owned a minimum of 60% of the property with the remaining share being Mr Z’s, ensuring the loan to him was repaid.
• The Council was at fault for the delay in completing Mrs Y’s needs assessment and support plan between May and late October 2022. This delayed Mrs Y’s financial assessment. There were also no records to show these were shared with Mrs Y. They considered Mrs Y’s care home stay prior to late October 2022 should be charged as a temporary stay (and so her property would not be taken into account).
• The care home charged a flat rate weekly fee which was detailed in the admission letter the family should have received when Mrs Y moved to the care home. The investigating officer provided Mr X with a copy of the care home fees booklet. They acknowledged a large debt was accruing but considered this was unavoidable due to the debt being placed on hold whilst the Council explored the deprivation of assets.
• There was a lack of information provided to the family about whether it could use her money to purchase personal items such as clothes and toilets. Regardless of the deprivation of assets decision, they considered the Council should have explained about the personal expenses allowance to the family.
32. The Council apologised to Mr X and offered him £250 in recognition of the distress and anxiety the faults caused to him. Mr X remained unhappy and complained to us. The investigating officer also recommended that charging review panel decision letters be detailed with a clear rationale of why deprivations were considered to have occurred, fully outlining their rationale in line with the Care and Support Statutory Guidance.

Findings

33. The Ombudsman is not an appeal body. Our role is to consider the process followed by the Council, whether it followed the guidance and whether there was fault in the way it reached its decision. If it considered the information properly, we cannot find fault just because a person disagrees with the decision.
34. Mrs Y was entitled to do what she wished with her capital. But having done so the Council was entitled to investigate whether at the time she did so, Mrs Y had a reasonable expectation of needing care and support and whether Mrs Y had a significant motivation or intent to avoid care costs.
35. The Council made its initial decision on information that was wrong. When Mr X produced additional evidence, the panel considered this against all the information it had, including information regarding Mrs Y’s health, her support needs and the timing of the deed of trust. It decided Mrs Y had deliberately deprived herself of assets. It explained its reasoning in its decision letter. This was a decision the Council was entitled to make and as there was no fault in the way it did so, I cannot question it.
36. The Council has accepted Mr Z has a beneficial interest in the property. It has decided that a minimum of 60% of the value of the property should be included in the financial assessment as this was the discount Mrs Y received under the Right to Buy scheme. It is for the Council to decide how to calculate Mr Z’s beneficial interest in the property.
37. When Mr X raised further concerns the Council undertook an investigation into his complaint which set out in detail the chronology of events. The Council’s complaint investigation was robust, clearly setting out the investigating officer’s consideration of Mr X’s complaints and there is no obvious fault in the way the Council investigated the complaint. The complaint investigation acknowledged fault by the Council in that:
• The charging review panel’s initial decision did not consider all the key factors and the letter following this did not clearly explain the panel’s decision making.
• The Council delayed completing the needs assessment and support plan and completing the initial financial assessment.
• There was a lack of information provided to the family about Mrs Y’s personal expenses allowance.
38. These faults caused Mr X distress and anxiety. The Council recommended an apology and payment of £250 to Mr X to acknowledge the distress and anxiety caused to him. This was appropriate and in line with our guidance on remedies. The investigating officer also recommended an action to prevent recurrence of the fault which the Council accepted and so I have not made any recommendations for any further service improvements.

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Final decision

39. I have completed my investigation. The Council was at fault causing injustice which it has already remedied.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman