Summary: We will not investigate Mr X’s complaint about the Council’s decision that the transfer of his mother’s property to him and his brother, was deprivation of assets to avoid paying for residential care. This is because there is insufficient evidence of fault.

The complaint

1. Mr X complains about the Council’s decision to treat his mother’s (Mrs Y) transfer of property to him and his brother as a deprivation of assets to avoid care charges. Mr X says Mrs Y transferred the property so her sons would be responsible for its upkeep. Mr X believes it is unfair for the Council to insist the property is sold to cover Mrs Y’s residential care charges. He wants the Council to pay for the shortfall in care home charges that are not covered by Mrs Y’s pension.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. 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)

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How I considered this complaint

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

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My assessment

6. In March 2024, the Council told Mrs Y’s sons (Mr X and Mr Z) it had decided to treat the value of the property she lived as notional capital following transfer of its ownership to her two sons in 2015.
7. Councils may consider a resident has deliberately deprived themselves of an asset, such as a property they own, to reduce the charges they are asked to pay towards their care. Annex E of the care and support statutory guidance sets out the following tests a council should consider when deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
1. was avoiding care charges 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 need for care and support?
2. did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

For example, it would be unreasonable to decide a person had disposed of an asset in order to reduce the level of charges for their care if at the time the disposal took place they were fit and healthy and could not have foreseen the need for care and support.

8. 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 a person disagrees with the decision the organisation made.
9. In this case, the Council considered Mr X and Mr Z’s explanation that Mrs Y transferred her property to them because she did not wish to remain responsible for its maintenance and upkeep. The Council explained it was not persuaded such a transfer was needed to enable Mrs Y’s family to maintain the property on her behalf. The Council did not accept Mr X and Mr Z’s explanation that the transfer was also connected to their father’s death, which occurred more than 20 years prior. In addition, the Council noted Mrs Y had been known to its Adult Social Care Team for a number of years and had received some form of support or assistance from the Council since 2012. Because of this, the Council concluded Mrs Y had a reasonable expectation of needing care and support, together with an awareness of needing to contribute to the cost of her care needs.
10. The Council has considered an appeal against its decision in Mrs Y’s case and maintained its view that a deprivation of assets had occurred.
11. The Council has considered the relevant tests set out in the statutory guidance and given access to an appeal process to review its initial decision. In the absence of evidence to show there has been a procedural fault in the Council’s decision-making, we have no grounds under which to justify investigating this matter further.

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Final decision

12. We will not investigate Mr X’s complaint because there is insufficient evidence of procedural fault to justify our involvement.

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Investigator's decision on behalf of the Ombudsman