Summary: We will not investigate Ms X’s complaint about the Council’s decision that the setting up of a family trust amounted to a deprivation of assets. The Council has agreed to make a payment to recognise the uncertainty caused by its delay in making the decision. There is insufficient evidence of fault to justify us investigating the decision-making process.

The complaint

1. Ms X complained about the Council’s decision that the creation of a family trust amounted to a deprivation of assets and that her mother should therefore be treated as still having the capital when calculating her contribution towards her residential care costs. Ms X said the Council had not properly considered relevant guidance and her mother’s situation at the time the family trust was set up. She also complained about delays in decision-making.
2. As a consequence of the Council’s decision, Ms X’s mother has been assessed as needing to pay the full costs of her care.

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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 provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

4. I considered information provided by Ms X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Ms X’s mother, Mrs Y, had a diagnosis of cognitive impairment in January 2015. The property she lived in with her husband, Mr Y, was put into a family trust in May 2015. Mrs Y had a diagnosis of missed dementia in August 2015 and moved into residential care in 2021. In 2022, the Council assessed Mrs Y as needing to pay a contribution towards her residential care costs, based on her income. It did not take into account the value of the family home as it understood this was jointly owned and Mr Y was still living there.
7. Mr Y died in 2022. Some of his pensions transferred to Mrs Y and the Council adjusted her contribution to reflect her increased income. Around this time, the Council became aware of the family trust. It asked Mrs X the reasons for setting up the trust and for a copy of the trust documents. Mrs X explained the reasons and provided the documents in late August 2022.
8. The property in the family trust was sold in early 2023.
9. The Council asked further questions about the family trust in June 2023 and decided in July that putting Mr and Mrs Y’s former family home into the trust in 2015 amounted to a deprivation of assets. Its letter did not explain its reasons for deciding this, so Mrs X asked the Council to review its decision. The Council issued a review decision letter in November, and a further review decision in December 2023.
10. In a final complaint response in early 2024, the Council accepted there was a delay in making the review decisions, for which it apologised. An apology is an appropriate remedy for any injustice caused by this delay.
11. If we investigated this complaint, it is likely we would find fault because there was a delay in reviewing the financial assessment for Mrs Y between August 2022, when Ms X provided information about the family trust, and June 2023.
12. This delay caused an injustice to Mrs X because there was uncertainty about how the Council would consider the family trust, which was not resolved when the property was sold. This meant, Mrs X did not have all relevant information when deciding how to deal with the proceeds of the sale.
13. Therefore, we asked the Council to consider remedying the uncertainty caused by paying Ms X £400 to resolve the complaint early, which it has agreed to do within one month of the date of this decision. It also agreed to share our final decision with relevant staff to ensure it learns from what went wrong.
14. If we investigated this complaint. It is also likely we would find fault with the Council’s the failure to explain the reasons for its decision in its decision letters in July and November 2023. However, any injustice caused by this was remedied by a further review letter in December 2023, in which the Council set out its reasons in detail.
15. We are not an appeal body. We cannot comment on the decision made unless there was fault with the decision-making process. The Council’s letter in December 2023 shows it has considered all relevant factors, including all the evidence provided and relevant guidance. It was for the Council to decide how much weight to give to the evidence under consideration. There is insufficient evidence of fault in its decision-making to justify further investigation.

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Final decision

16. We have upheld the complaints about delays in decision-making and an initial failure to provide proper reasons for its decisions because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Ms X and sharing our decision with relevant staff to improve its service for others. We will not investigate Ms X’s complaint about the decision in December 2023 because there is insufficient evidence of fault to justify doing so.

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Investigator's decision on behalf of the Ombudsman