Summary: We will not investigate Ms X’s complaint about the Council’s decision her late mother deprived herself of assets because there is insufficient evidence of fault in its decision making to justify our involvement.

The complaint

1. Ms X complained about the Council’s decision her late mother, Mrs Z, had deprived herself of assets and its delay in making that decision. Ms X said the deprivation was deliberately motivated to avoid residential care costs.

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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))

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How I considered this complaint

3. I considered information provided by Ms X.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mrs Z, who is Ms X’s mother, went to live with Ms X after leaving hospital in March 2020. Initially, this was intended as a temporary move until the COVID-19 pandemic ended, but Mrs Z decided to stay and put her own property on the market in September 2020. The property was sold in April 2021 and the proceeds divided between family members in line with Mrs Z’s will.
6. Ms X said Mrs Z’s health deteriorated from September 2023 and in December 2023 Ms X started considering residential care for Mrs Z, because she was no longer able to meet Mrs Z’s care needs. In January 2024, Mrs Z moved to a care home for three weeks and Ms X contacted the Council for assistance to fund Mrs Z’s residential care if it was made permanent.
7. The Council carried out a financial assessment. In April 2024, it decided that Mrs Z giving away the proceeds of the sale of her property amounted to a deprivation of assets. It said this was because Mrs Z was over 90 when the property was sold, and it was unreasonable to assume she would not have care needs in the short term. This meant it would treat Mrs Z as still having the proceeds of the sale of her property, which meant she would need to pay her residential care costs in full with effect from 5 March 2024.
8. In early May Ms X appealed. In June Mrs Z died. And in July, the Council upheld its original decision on appeal. In its decision letter it noted Mrs Z had been receiving carer's allowance since 2018 and Ms X had been receiving carer’s allowance to care for Mrs Z since November 2020. Therefore, at the time Mrs Z’s property was sold, it was reasonable to assume long term care would be needed and that care fees would need to be paid.
9. Ms X appealed again in late July 2024. Amongst other things, Ms X said:
• Mrs Z was fit and well in 2020, was able to walk and there was no indication she would need residential care;
• Moving in with Ms X was not a temporary arrangement as Mrs Z had stayed there almost four years, and the intention had been she would remain there until her death;
• When Mrs Z sold her property, she still had capacity to make decisions and wanted the proceeds of the property to be divided between family members in line with her will so she could see the money spent in her lifetime;
• Part of the sum paid to Ms X was used to make adaptations to Ms X’s property to meet Mrs Z’s needs;
• Receiving attendance allowance and carer’s allowance did not indicate Mrs Z had long term care needs; and
• She was upset by the delay in making the appeal decision and the lack of a panel discussion.
10. In October 2024, the Council wrote to Ms X with the outcome of the second appeal. It acknowledged the family support given to Mrs Z, and noted £21,740 had been used to adapt Ms X’s property. However, at the time Mrs Z sold her property, she had long term care needs, as evidenced by the benefits Mrs Z and Ms X were receiving. The family had explained how the proceeds of sale had been distributed, but had not explained why no provision was made for any future care Mrs Z might need. It upheld the decision there was a deprivation of assets.
11. Ms X remained unhappy and complained. She set out her reasons for disagreeing with the decision and raised concerns about the time taken to make a decision and the lack of a panel discussion. The Council responded that it had made its decisions at all stages in line with its policy and said the decision was correct.

My assessment

12. We are not an appeal body. It is not our role to say whether a council’s decision was correct. Unless we find fault in the decision-making process, we cannot comment on the decision reached.
13. There is no dispute that Mrs Z had sold her property and distributed the whole proceeds to family members. The Council had to consider whether this amounted to a deliberate deprivation in order to reduce the amount the person needs to pay for their care.
14. The Care and Support Statutory Guidance (the Statutory Guidance) says (at Annex E) that when deciding this, councils should consider whether, at the time of the disposal of capital, the person had a reasonable expectation of needing care and of needing to contribute towards the cost of that care. Our guide for practitioners on deprivation of assets explains councils must explore with service users and their families the reasons for disposing if capital, following which it can draw inferences on motivation, in line with the Statutory Guidance and taking into account the timing of the disposal.
15. The Council’s decisions show considered the Statutory Guidance, Ms X’s account of Mrs Z’s motivations and the circumstances at the time she sold the property, and relevant evidence of her care needs at that time. Although its initial decision letter suggested its decision may have been based on Mrs Z’s age, which would not on its own be sufficient to conclude there had been a deprivation, its appeal letters explained its reasons more fully. There is insufficient evidence of fault in the decision-making process to justify further investigation.
16. There is no statutory timeframe for financial assessment appeals, but I note the Council took 11 weeks to make the first appeal decision and 9 weeks to make the second appeal decision, which is longer than I would expect to see. However, this did not cause sufficient injustice to Ms X to warrant further investigation because the outcome remained the same and Mrs Z’s placement was not put at risk as a result of any delay in reaching a final outcome.
17. I also note the Council’s initial decision said the appeal would be considered by a panel made up of Council officers but, in fact, the appeals were considered by single officers. However, I am satisfied the Council considered all relevant information and it is unlikely that a panel discussion would have reached a different conclusion. There is therefore insufficient injustice caused to warrant further investigation of this aspect.

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Final decision

18. We will not investigate Ms X’s complaint because there is insufficient evidence of fault causing sufficient injustice to justify our involvement.

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Investigator's decision on behalf of the Ombudsman