Summary: There is no evidence of fault in the way the Council reached its decision that Mrs X had deliberately deprived herself of assets in order to avoid care home costs.

The complaint

1. Ms A (as I shall call the complainant) complains about the Council’s decision that her mother Mrs X had deliberately deprived herself of assets in order to avoid care home costs. She says the Council did not consider the individual circumstances and made a blanket decision.

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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 all the information provided by Ms A and by the Council. Both parties had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. The Care Act 2014 (section 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.
6. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
7. 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. In such circumstances, the local authority should have regard to this guidance.
8. 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.
9. The Care and Support Statutory guidance says, “There may be many reasons for a person depriving themselves of an asset. A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:

(a) 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?

(b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?”

What happened

10. Mrs X is now 92. Her daughter Ms A has held power of attorney for her since 2007. In 2020 Mrs X went to live in sheltered housing. She sold her property in 2021.
11. Mrs X began to experience ill-health in 2022 and after a hospital admission, was discharged in September back to her sheltered housing with a care package. The hospital discharge note reads that her long-term plan will be “to explore the option of residential care placement”.
12. The Council’s records show that Ms A asked the Council in September 2022 about financial assistance with a package of care.
13. In October Ms A asked about funding a residential placement for Mrs X. She completed a financial assessment form in which she disclosed that Mrs X had previously sold her property, and from the proceeds had gifted an amount of money to Ms A.
14. The Council wrote to Ms A in February 2023 asking for more details about the gifts which had been made. The finance officer explained the Council had to consider the timing and motivation of the gifts which had been made. He detailed the support which Mrs X had required over the past few years and said the records indicated that Mrs X had not only a reasonable expectation of requiring care and support, but also of the need to contribute towards the cost of care. He asked for details of the purpose of the loans and gifts which had been made.
15. In July 2023 the Council requested copies of Mrs X’s bank statements from July 2020.
16. In September 2023 the Council wrote to Ms A explaining that it intended to treat the amount of £21,882 - gifts made by Mrs X to Ms A and to her son - as notional capital (as though Mrs X still possessed it). It said the timing of the gifts and the fact that there was no previously established pattern of gifting had contributed to the decision there had been deliberate deprivation. It said that amount would raise Mrs X’s assets above the lower threshold amount of £14,240 and that it would therefore invoice her on a tariff basis for her contribution until such time as the care ended or the assets fell below the threshold amount.
17. Ms A appealed against the decision. She said Mrs X had never had a substantial amount of money to gift before the sale of her home (and so there was no established pattern of gifting). She said Mrs X had had full expectation she would remain in her sheltered accommodation, but the diagnosis of a new condition in 2022 had made a move into residential accommodation the only option as the care being provided at home was inadequate. She said she believed the Council had made a blanket decision that Mrs X would move into residential care, because of her age. Ms A also complained about the delay in waiting for the outcome of the financial assessment.
18. The Council arranged an appeal hearing in February 2024, which Ms A attended.
19. Two senior officers who had not previously been involved in the case led the appeal: finance officers were in attendance for points of detail but were not part of the appeal process itself. The notes show the chairperson asked Ms A to explain why she wanted to appeal. Ms A said there was no attempt by Mrs X to deliberately deprive herself of assets in order to avoid care: she had given monetary gifts to Ms A in gratitude. In addition to the points she had already made, Ms A said she did not know why Mrs X did not get funded rehabilitation care after her discharge from hospital in 2022 but paid privately instead. One of the officers said the records showed Mrs X had been offered a ‘discharge to assess’ placement but her family had refused.
20. The Panel considered the points made by Mrs A. The chairperson wrote to Ms A shortly after. He said the appeal was not upheld. Supporting papers set out how the Council had complied with the statutory guidance in reaching its decision. In particular the papers noted Ms A’s view that the Council had made a blanket decision in respect of her mother’s age but also complained about the length of time taken to consider her case, and said these two issues were contradictory.
21. The chairperson apologised for the delay in considering the matter before the letter of 14 September was issued. He also agreed a four-week credit in respect of a period after Mrs X’s hospital discharge when it was unclear whether she had rehabilitation potential.
22. Ms A complained to the Ombudsman. She said the Council had delayed in its responses to her, had made a blanket decision that anyone old should expect to use residential care, and that it had not taken account of the change in Mrs X’s health in 2022, after the gifts had been made.

Analysis

23. There was some delay between February 2023 when the Council first asked Ms A for more details, and September 2023 when it wrote with its decision. The Council apologised for that. However, there was sufficient detail in the February letter to alert Ms A that a deprivation decision was possible.
24. There is no evidence the Council reached a blanket decision in respect of Mrs X. The evidence shows the Council considered all the relevant information in accordance with the guidance.
25. Our role is not to ask whether we agree or disagree with what an organisation did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
26. There is no evidence of fault in the way the Council made this decision.

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Final decision

27. I have completed this investigation on the grounds there was no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman