Summary: Ms Y complained the Council wrongly decided her late mother, Mrs X, deprived herself of assets to reduce her care fees. The Council made this decision in line with relevant law and guidance without fault.

The complaint

1. Ms Y complained the Council wrongly decided her mother, Mrs X deprived herself of assets to reduce her care fees. Ms Y said this meant Mrs X was paying for her care when should not.

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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 evidence provided by Ms Y and the Council as well as relevant law, policy and guidance.
5. Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Paying for care

6. 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.
7. 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.
8. 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

9. 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.
10. 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?
• did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?”
11. 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’.

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What happened

12. This section sets out the key events in this case and is not intended to be a detailed chronology.
13. In June 2021, Mrs X set up a trust which Ms Y was the sole beneficiary of. Mrs X had £100,000 in savings and she put £90,000 of this in the trust. Ms Y says she has an incurable health condition and this sum of money was for her to use for treatment and care.
14. Mrs X received short-term reablement care from September-October 2022 followed by long term care and support from November 2022 funded by Adult Social Care.
15. The Council became aware of the trust and made some further enquiries about this with Ms Y and her legal representative. The Council noted Ms Y had already taken a £15,000 loan out of the trust to treat her health condition. The Council asked Ms Y to provide evidence of this expenditure and quotes for further treatment she requires. Ms Y and her legal representative did not provide the evidence saying it was not relevant. However, they did confirm Ms Y spent 20% of the £15,000 on treatment and she further spent some on transport cost.
16. In May 2024, the Council issued a new financial assessment decision applying the test set out in the Care and Support Statutory Guidance. It concluded Mrs X was a self-funder and intentionally removed/disposed of assets to avoid paying for care and support. It advised that a balance of approximately £10,000 was now payable to the Council as it had been paying for the care.
17. In June 2024, Ms Y appealed the decision. The Council upheld its decision and noted the following:
• The medical evidence shows Mrs X had a fall and arthritic knees. She also had other health conditions. Therefore, the Panel concluded that Mrs X did have a reasonable expectation that she would need care and support at the time of setting up the trust fund.
• Mrs X’s husband was previously known to Adult Social Care and the Council confirmed to him and Ms Y that he would pay for the full cost of his care as he had capital over £23,250. Therefore, the family was aware care and support was means tested. The Panel concluded Mrs X had a reasonable expectation of needing to contribute to the cost of their care.
• Ms Y has not provided evidence of her eye condition, the associated costs or that it cannot be treated on the NHS. The Panel also queried why the £15,000 was a loan. The Panel concluded that avoidance of care charges was the motivation in disposing of the assets.
18. In July 2024, Ms Y’s legal representative contacted the Council and asked whether the Panel would reconsider the decision if they provided the evidence and answers to the panel’s questions about Ms Y’s health condition and associated costs. In September 2024, the Panel decided to not reconsider its decision.
19. Ms Y remained dissatisfied with the Council’s handling of the matter and complained to us.

My findings

20. 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.
21. The Council’s May 2024 financial assessment decision stated Mrs X needed to pay for the full cost of her care as it concluded she had intentionally removed/disposed of assets to avoid paying for this. After Ms Y appealed, the Council upheld its decision in July 2024. The initial decision and review shows the Council considered all the circumstances of the case in line with the Care and Support Statutory Guidance. It considered the timing and motivation behind the trust, whether Mrs X had a reasonable expectation of needing ongoing care and support and whether she would have expected to contribute towards the cost. It was for the Council to decide what weight to give the evidence it saw, and we cannot substitute our view for that of the Council. Whilst I appreciate, Ms Y would like to submit further evidence for the Council to consider, she had the opportunity to do this prior to the initial decision and with her appeal. There is no evidence of fault in the way the Council reached its decision so I cannot question it.

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Decision

22. I have not found evidence of fault by the Council

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman