Summary: Mrs X complained the Council incorrectly declined their request for support with care fees, failed to properly consider their evidence and based its decision on deprivation of a property sale asset on wrong assumptions. We do not find fault in the Council’s actions.

The complaint

1. The complainant, Mrs X, complains the Council:
• incorrectly declined their request for support with care fees;
• failed to properly consider their evidence; and
• based its decision on deprivation of a property sale asset on wrong assumptions.
2. Mrs X said this has caused her and her family significant distress.

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The Ombudsman’s role and powers

3. 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)
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 spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Capital limits

7. The care and support statutory guidance says the upper capital limit is currently set at £23,250. Below this level, a person can seek means-tested support from the Council. This means the Council will undertake a financial assessment of the person’s assets and will make a charge based on what the person can afford to pay.

Deprivation of assets

8. The care and support statutory guidance states 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. Assets means capital and/or income.
9. A person can deprive themselves of capital in many ways, but common approaches may be that assets have been used to purchase an investment bond with life insurance. However, this will not be deliberate in all cases.
10. A council should consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
• whether avoiding 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; and
• did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs.
11. The guidance states 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.

Summary of the key events

12. A care act assessment in August 2022 stated Mrs X’s mother-in-law, Mrs Y, had a fall and had fractured her hip. It was noted that Mrs Y was now living with Mrs X and her husband Mr X. The goal was for the fracture to heal completely to enable Mrs X to regain her independence.
13. The Council wrote to Mr X early September 2022. It said a financial assessment needed to be completed to determine how much Mrs Y should be contributing towards the cost of care. It stated if she had over £23,250 in capital assets excluding her home, she would be required to pay the maximum charge.
14. Mr X completed the financial assessment in the same month for Mrs Y. It was noted Mrs Y lived with him and Mrs X but jointly owned a property with her husband who had passed away.
15. The Council wrote to Mr X and said as Mrs Y owned a share of a property that was not her main residence, it would have to take this additional property value into account in her financial assessment. It stated Mrs Y was therefore required to pay the full cost of her care.
16. In November 2022 after the family had sold Mrs Y’s property, they sought financial advice. They decided to pay £115,000 of Mrs Y’s share into an investment bond.
17. In June 2023, Mr and Mrs X paid for a private Parkinson’s disease assessment for Mrs Y.
18. Mr X contacted the Council in August 2023 and asked if they could apply for help in covering the cost of care fees. He said Mrs Y’s savings were £16,725.80.
19. The Council told Mr X, land registry checks had noted Mrs Y was joint owner of a property she did not live at. It said Mrs Y had to pay the full care costs. But Mr X told the Council they sold the property in November and asked the Council to reconsider its position.
20. Mr X wrote to the Council in October 2023 and said:
• Mrs Y suffered a fall in April 2022 and moved in with the family on a temporary basis in July 2022;
• the initial aim was to sell Mrs Y’s home and purchase an assisted living apartment. But it became clear that Mrs Y could not live independently;
• the property sold in November 2022 and £115,000 of Mrs Y’s share was paid into an investment bond. Her remaining share was used for her day to day needs and respite care; and
• his solicitor had recently advised as the funds are an investment bond they should be disregarded if they include one or more element of life assurance which they do.
21. The Council reiterated its previous response and said as Mrs Y holds more than £23,250 in capital, she is liable for the full cost of care. The Council requested they complete a further financial assessment.
22. The Council wrote to Mr X in November 2023. It said:
• Mrs Y was already in receipt of care services and was assessed to make a contribution towards the cost of those services at the time that the property was sold;
• a subsequent investment that would be disregarded in the financial assessment calculation at that point would need to be considered in line with the statutory support guidance;
• it appeared Mr X had been advised by his solicitor and financial adviser to use this type of investment which would avoid the Council including that money in the financial assessment; and
• it therefore considered this to be a purposeful deprivation of assets.
23. In response Mr X asked the Council to reconsider. He said Mrs Y’s care was originally a temporary measure. It was during this time they took advise to suitably invest her savings. He also said Mrs Y had a recent diagnosis of Parkinson’s.
24. The Council said it considered the Care and Support statutory guidance and said:
• Mr X has stated the assets were moved while care was being provided. Although he said this was intended to be temporary there was no break in service from 5 July 2022 onwards; and
• Mr X has stated he was specifically given financial advice regarding where to place the assets. It said it should have been made clear to him by the independent financial advisor that an investment of this type, at that time, could be considered by the Council to be deprivation of assets.

Analysis- was there fault by the Council causing injustice?

25. The Ombudsman’s role is to review councils’ adherence to procedure in making decisions. Where a council has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. We do not make decisions on councils’ behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint simply because a person disagrees with a council’s decision.
26. In this case Mrs Y had been receiving care from July 2022 onwards. The assessment in August 2022 noted Mrs Y was recovering from a fracture and she was living with Mr and Mrs X.
27. The Council completed a financial assessment in September 2022 and stated Mrs Y was required to pay the full costs of her care. The family were aware at that point that the Council had taken the additional property value into account when completing the financial assessment.
28. The family sold Mrs Y’s house in November and invested £115,000 of her share into an investment bond. The remaining £15,000 was used for Mrs Y’s day to day needs and respite care.
29. Mr X contacted the Council in August 2023 to ask for help with care costs. But the Council considered the family had deliberately deprived themselves of assets and stated Mrs Y was still required to pay the full costs of her care fees.
30. Paragraph 10 sets out what the Council should consider when deciding whether deprivation for the purpose of avoiding care and support charges has occurred. The Council is entitled to make a judgement about motive by considering whether the family had a reasonable expectation of having to pay care costs in the future.
31. In this case the Council stated that whilst Mr X said the initial care was intended to be temporary, there was no break in service from July 2022 onwards. It also said the independent adviser should have made it clear that an investment of this type, at that time, could be considered by the Council to be deprivation of assets.
32. There is no fault in the Council’s decision-making process. As the Council has evidenced it did consider the circumstances in line with the guidance, I cannot criticise it. As stated in paragraph 27, the family were aware the Council had taken the additional property value into account when it completed the financial assessment. The family made an informed decision to invest Mrs Y’s share of the property into an investment bond.
33. The Council did state it appeared that Mr X had been advised by his solicitor and financial adviser to use this type of investment which would avoid the Council including that money in the financial assessment. But Mr X did not seek this advice from his solicitor/financial advisor until October 2023 as a consequence of the Council’s decision.
34. Mrs X has provided us with a copy of the advice letter from their financial advisor from November 2022. It did not refer to the family being advised about any investments being disregarded in an assessment. But I do not consider this to have affected the Council’s decision. This is because it considered other relevant evidence in line with the guidance a stated in paragraph 31.

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Final decision

35. I have completed my investigation on the basis there was no fault in the Council’s actions.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman