Summary: Mr X complained that the Council wrongly decided his father, Mr Y, deprived himself of assets for the purpose of reducing his care fees. We found that the Council’s decision was not supported by all the available evidence, and so was fault. That fault caused Mr X and his siblings an injustice for which we have recommended a remedy.

The complaint

1. Mr X complained the Council wrongly decided his father, Mr Y, deprived himself of assets for the purpose of reducing his care fees. Mr X said this meant Mr Y is required to pay for his care when he should not be.

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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. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
5. 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

6. I have considered:
• the information Mr X provided, and discussed the complaint with him and his brother;
• the Council’s correspondence with Mr X; and
• the relevant law, policy and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Relevant Law and guidance

Paying for care

8. 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.
9. When a council arranges a person’s care 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. If a person has capital over £23,250, they must pay full price for their care.
10. When a person’s house is their main or only home its value is not included in the person’s financial assessment. However, if the person moves into a residential placement, their house is normally included in their financial assessment because it is no longer their main or only home.

Deprivation of assets

11. When undertaking or reviewing a financial assessment a council may identify circumstances that suggest that a person may have deliberately deprived themselves of assets. Deprivation of assets means a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care.
12. The Care and Support Statutory Guidance says “there may be many reasons for a person depriving themselves of an asset. A council should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
• 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? [the First Test]
• did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?” [the Second Test]
13. If a council decides a person has deprived themselves of a capital asset to avoid care charges, it treats the asset as if it still belongs to the person receiving care. This is called ‘notional capital’.

What happened

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. Mr Y’s wife, Mrs Y, died in June 2016.
16. Mr Y transferred the ownership of his home into “The Y Family Trust” in December 2016.
17. Mr Y, who has dementia, became a permanent resident of a care home in May 2024.

The first Council decision

18. The Council sent a financial assessment decision to Mr X in June 2024.
19. The letter included consideration of the factors set out in the Care and Support Statutory Guidance. In relation to the First Test, the Council considered that:
• “At the time Mr Y gave away full control of his most valuable asset”, “he was 86 years old”, and
• He had “diagnoses of hypertension and oesophagitis, which were managed by medication, as well as having had the onset of a cataract”.
20. Considering the Second Test, the Council took into account that:
• “Adult social care has been means tested for many years. It has been a contentious issue and widely discussed in the public domain for decades […] It is well known that people have to pay for care and support if their assets are above a certain threshold or contribute to that provision”.
• “The obligation to pay for care is not just limited to people in receipt of residential care”.
• Before she died in 2016, Mrs Y had been involved with the social care system, and there was correspondence sent at the time regarding payment towards social care.
21. The letter also included consideration of Mr Y’s medical records between 2014 and 2018.
22. The Council decided that the significant motivation for Mr Y gifting his property to his children was deliberate deprivation to avoid paying for care fees in the future.

The second Council decision

23. Mr X appealed the decision in July, saying that his father’s motivation in creating the Trust was to ensure that the property was split equally between his four children on his death.
24. The Council’s Decision-Making Panel considered Mr Y’s case in August and wrote to Mr X with its decision. This letter again included consideration of Mr Y’s medical records between 2014 and 2018.
25. The Panel decided, in relation to the First Test, that:

“[Mr Y] had been diagnosed with other conditions such as hypertension, which can be serious if not treated. Panel noted that your father was on long term medication to treat this condition. […] Panel agreed that if someone is suffering with hypertension then it would be reasonable for them to expect to need care in the future.

[…]

Panel have considered this point and given that your father was on long term medication to control hypertension he was not fit and well at the time of disposal. Panel do believe that your father would have reasonable expectation that he would need care and support at the time of disposal.”

26. The factors considered by the Panel in relation to the Second Test were substantively the same as those set out in the original financial assessment decision, but it made more explicit its view that Mr Y’s involvement with Mrs Y’s care meant that he would have been aware of the potential need to contribute to the costs of care and support.
27. The Panel noted the stated motivation for creating the Trust could have been achieved by Mr Y creating a will which would have meant that his four children received equal shares of his property upon his death from his estate.
28. The Panel concluded that, at the time he created The Y Family Trust in December 2016, Mr Y had a reasonable expectation of needing care and support in future, had a reasonable expectation of needing to contribute to the cost of that care, and that the significant motivator for Mr Y creating the Trust was to avoid paying for care and support.

The third Council decision

29. Mr X appealed again.
30. The Council’s Revisit and Review Panel considered Mr Y’s case in November and wrote to Mr X with its decision. It did not refer to Mr Y’s medical records after 2016. The Panel’s conclusions were broadly the same as in previous decisions, that is it considered that Mr Y had a reasonable expectation of needing care and support in future, had a reasonable expectation of needing to contribute to the cost of that care, and that the significant motivator for Mr Y creating the Trust was to avoid paying for care and support.

Findings

31. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
32. In this case, the Council considered the circumstances of the case in line with the Care and Support Statutory Guidance. It considered the timing and motivation behind the creation of the Trust, whether Mr Y had a reasonable expectation of needing ongoing care and support, and whether he would have expected to contribute towards the cost of that care. It also reviewed the decision when asked to do so by Mr X. This was evidence of good administration.
33. However, I find that the Council did not consider all factors properly. Our published guidance on deprivation of capital says:

“The council should consider if the user of services ‘must have known that they needed care and support’. This will be a case specific judgment. For example, many people live with chronic long-term health conditions but may never need care and support. While others may have conditions that will degenerate and where it is anticipated such needs will arise.”

34. In this case, the Council relied on the argument that a diagnosis of hypertension (a chronic long-term health condition) was sufficient Mr Y to have expected, in 2016, to need care in the future. The Council said that untreated hypertension can increase the risk of developing a condition which could result in someone needing care and support, but also noted that Mr Y’s hypertension was being treated.
35. If the medication Mr Y was taking controlled his hypertension adequately, he would not necessarily have been at higher risk of needing care than anyone else.
36. The Council does not appear to have explored the question of whether Mr Y’s hypertension was controlled at the time he created the Trust in December 2016. That information should have been available in Mr Y’s medical records, specifically in his annual medication reviews.
37. The Council’s conclusion that a diagnosis of hypertension alone meant Mr Y would have had a reasonable expectation of needing care and support (the First Test) is not supported by all the evidence that was available to the Council, and therefore is fault. That fault caused Mr X and his siblings an injustice in that the Council’s conclusion was not robustly evidence-based.
38. I also find fault with the Council for referring, in its decisions of June and August, to Mr Y’s medical records after 2016. These were not relevant to the decision Mr Y made to create a Trust in 2016. However, this fault did not cause injustice because the Council made its third decision, of November 2024, without reference to these later medical records.

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Action

39. Within two months of my final decision, the Council should arrange for Mr Y’s case to be reconsidered by its Revisit and Review Panel, taking account of my findings at paragraphs 34-37 above.
40. The Council should provide us with evidence it has complied with the above action.

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Decision

41. I find fault causing injustice. The Council has agreed to the recommended action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman