Summary: Ms X complained the Council treated her mother’s, Ms Y’s, purchase of a car as a deprivation of assets when completing a financial assessment. The Council is at fault for attaching weight to the V5 certificate which it says shows legal ownership of the vehicle.

The complaint

1. Ms X complained the Council treated her mother’s, Ms Y’s, purchase of a car as a deprivation of assets when completing a financial assessment. Ms X says the car was bought by Ms Y to enable Ms X to drive her to appointments and care for her daily needs. The Council treated the car as notional capital in the financial assessment which means Ms X must pay for her care and support which she cannot afford, causing her financial distress. Ms X and Ms Y want the Council to accept the car is not a deprivation of assets and overturn the decision.

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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)

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What I have and have not investigated

4. I have only investigated the new complaint about the purchase of the car being a deprivation of assets in the recent financial assessment. Information about the original complaint and financial assessment is for background information only.

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How I considered this complaint

5. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Care Act 2014, The Care and Support (Charging and Assessment of Resources) Regulations 2014, The Care and Support Statutory Guidance.
6. Ms X, Ms Y and the Council had 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 legislation

7. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
8. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment.
9. When charging for non-residential care, a person’s capital should not fall below income support. The upper threshold remains £23,250, the lower threshold £14,250. Capital that falls between the two figures should be assessed as notional e.g. £1 per £250 per week.
10. The statutory guidance explains what it meant by deprivation of assets. Where a person deliberately disposes of capital when they had a reasonable expectation they needed care which they needed to contribute towards, they are considered to have deliberately deprived themselves of their assets. Deprivation can include a lump-sum payment, for example as a gift, large and sudden spending which is out of character with previous spending.
11. The test for deprivation is threefold:
• Step one: Did the person know or should have known they needed care?
• Step two: Did the person have a reasonable expectation they would need to pay for care?
• Step three: When was the disposal (step three, part one) and what was the motivation (step three, part two)?
12. In considering the test, the council should consider any historic patterns of spending and gifting and the size of spending in relation to their capital.

Legal ownership of a vehicle

13. The DVLA website provides information about the differences between the registered keeper and the owner of a vehicle, which can be different.
14. The registered keeper (as named on the V5 certificate) should be the person who is using the vehicle and keeping it, which can sometimes be different to the owner of the vehicle or the person who is responsible for paying for it.
15. The DVLA emphasises the person who is named on the registration document (the V5 certificate), may not necessarily be the owner. The V5 certificate is not proof of ownership.

The Council’s policies and procedures

16. The Council’s website has information about calculating how much people must pay towards their care. It explains adult social care is not a free service and many people will have to pay a contribution towards or pay the full cost of their care. If someone has more than £23,250 in savings and other assets, the Council will not provide any funding towards the cost of care. The person will be a self-funder.
17. The Council explains it will carry out a financial assessment and look at the individual’s savings, assets and income. It may follow up where the individual has ‘given away assets and this has the effect of reducing the amount you pay towards your care. This is called deprivation.’
18. The website explains where someone disposes of savings, capital or income, the Council may decide the person did this with the express purpose of avoiding or reducing their contribution to the cost of care. The law allows the Council to treat the person as still having the asset which means the Council could charge the full cost of their care. Disposing of assets includes making large gifts to relatives.

What happened

19. I have summarised below the key events; this is not intended to be a detailed account.
20. The Council completed a financial assessment in February 2023 and considered Ms Y deprived herself of some of her assets; it included them as notional capital when calculating care fees. In September 2023, the Ombudsman found the Council at fault for failing to apply all the steps for the deprivation of assets test and asked it to reconsider the decision and understand the motivation behind the spending.
21. In early October 2023, the Council emailed Ms X and asked several questions to understand the reasons and motivation for buying the car and the timing. It also asked for documents about the purchase.
22. In late October, Ms X responded to the Council. She explained the old car she used had been in poor condition and she had been looking for a replacement since March 2022. Ms X said she used the car to transport her disabled son and her mother. The car needed to be reliable, easy to access and with space for her mother’s wheelchair.
23. The Council asked further questions of Ms X. It asked her to confirm whose name the car was registered in and why it was the most cost-effective choice.
24. Ms X sent the Council a copy of the invoice which is in Ms Y’s name. On request from the Council, she also sent a copy of the V5 certificate which was in Ms X’s name. The invoice shows Ms X traded her old car in against the value of the new car. Ms X reiterated they decided on the car because of size and ease of access (low seats and wide door frame) and consulted price guides.
25. Ms X said she viewed the car in the middle of October 2022, while Ms Y was receiving step-down care and before the Council had conducted the financial assessment. She said the motivation for the purchase could not be deprivation of capital as care had not been arranged. They bought the car in late October 2022.
26. In the middle of November 2023, the Council emailed its decision to Ms X. It said the purchase of the car was a deprivation of assets. It referred to the information Ms X provided in her response to the Council’s questions. It noted that Ms X’s old car was in poor condition, and she was using the new car for other uses, for example transporting her son, and not just to accommodate Ms Y’s needs. It also referred to the V5 certificate which shows Ms X is the registered keeper, it therefore considered the money was a gift to her. It said Ms X had not provided a detailed explanation why the vehicle was required for it to consider if the expense was necessary. It decided that on the balance of probabilities, it was a deprivation of assets and included it as notional capital in the financial assessment.
27. Ms X complained to the Ombudsman in January 2024. She said the car belongs to Ms Y and is not a deprivation of capital. She also said the Council has incorrectly concluded that Ms X owns the car because the V5 certificate is in her name. She said the V5 certificate is not proof of ownership. Ms X said she wants the Council to accept the car is legally Ms Y’s and is not a deprivation of assets.

Analysis

28. The previous Ombudsman decision found the Council satisfied the first two steps of the test for deprivation of assets, but did not do enough to satisfy the third step. In completing the test, the Council said Ms Y knew she needed care (step one) and was aware she would need to pay for this if she had savings over the financial threshold (step two). These two steps were satisfied. The Council also considered the timing of the spending which satisfied the first part of the third step of the test. It highlighted Ms X viewed the car after it had discussed the care plan and finances with her and Ms Y. At this point they knew care would be required and how finances were assessed. The Council followed the steps of the test until this point. It is not at fault.
29. The previous Ombudsman decision found the Council did not do enough to understand the motivation of the spending, which forms the second part of the third step. The Ombudsman asked the Council to reconsider its decision and ask questions to understand the motivation of the spending. In response to my enquiries, the Council provided email correspondence which showed it asked Ms X to explain the motivation and reasons for buying the specific car. After receiving the response from Ms X, it was not satisfied she had provided details why it was the most cost effective alternative and asked her for further details. Ms X explained the family had specific needs and she had taken advice from various websites and used price guides. The Council was right to ask these questions to understand the motivation to purchase the car and satisfy the second part of step three. The Council acted correctly and is not at fault.
30. The Council asked Ms X whose name the car was registered in and asked for the V5 certificate as evidence. Ms X explained the V5 certificate was in her name and the invoice was in Ms Y’s name, therefore Ms Y was the legal owner of the car. In its decision letter, the Council said Ms X ‘had not previously disclosed that the vehicle was registered to yourself. As such the monies would be considered as a gift to you.’ In response to my enquiries, the Council said had the car been registered in Ms Y’s name, it would have been treated as her car and not as a gift to Ms X. It is clear the Council attached significant weight to the V5 certificate being in Ms X’s name and said this shows she is the legal owner. Considering the information above from the DVLA website, this is not necessarily the case. The registered keeper can be the person who is using the car and keeping it (Ms X), which can be different from the person who paid for it and is the owner (Ms Y). The Council is at fault for attaching weight to the V5 certificate when it considered ownership of the car.
31. In response to my enquiries, the Council said despite who owned the car, it would still have questioned the amount spent and the timing of the purchase. Ownership is only part of the Council’s consideration, but it is clear it formed an important part.

Summary of fault causing injustice

32. The Council told me ‘It is the amount spent on the new car and the fact it is registered in the Ms X’s name that the Council has considered deprivation given the timing of the purchase’. The Council is correct to consider the timing of the purchase and the amount spent. It is at fault for attaching weight to the name on the V5 certificate which led it to consider the car as a deprivation of assets.
33. Ms Y’s injustice is uncertainty as she does not know what the result of the assessment should be.

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Agreed action

34. Within four weeks of my decision, the Council will reconsider its decision the purchase of the car is a deprivation of assets and treated as notional capital. It will consider the guidance from the DVLA about legal ownership of the car before coming to a decision.
35. The Council agreed to provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. The Council is at fault for attaching weight to the V5 certificate which it says shows legal ownership of the vehicle.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman