Summary: We will not investigate this complaint about financial assessment for adult social care charges, and the Council’s decision about a deprivation of asset. This is because it is unlikely we would find fault in the Council’s decision-making process or reach a different outcome.

The complaint

1. Miss D says the Council wrongly considered a monetary gift from Mr & Mrs E to their relative Mr F to be deprivation of an asset. The Council took a long time to respond to Miss D’s challenge of the decision. Mr F has had to take a mortgage to pay the Council toward Mr & Mrs E’s adult social 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, or
• any fault has not caused significant enough injustice to the person who complained to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(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 the decision making, 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.
5. I considered the Ombudsman’s Assessment Code.
6. I considered the Ombudsman’s Deprivation of Capital guidance and the care and support statutory guidance issued by the Department of Health & Social Care.

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My assessment

7. The law allows councils to charge for adult social care it arranges. Charges are means tested based on a person’s financial resources. There is law and guidance which a council must follow when completing a financial assessment to decide what, if anything, someone should pay.
8. Deprivation of capital is when someone knowingly reduces the value of an asset they hold for financial benefit. The statutory guidance says a council can treat someone as still having the capital if it finds that person has deprived themselves of it to decrease the amount, they may be liable to pay towards the cost of meeting their needs for care and support. If the asset has been transferred to someone else the Council can seek to recover the lost income from charges from that person. This is why it has asked Mr F to pay toward the adult social care charges.
9. The Ombudsman expects councils to consider the following when deciding if there has been a deprivation of assets:

• Could the person have had a reasonable expectation of needing care?
• Did the person have a reasonable expectation of the need to contribute towards the costs of that care?
• Was avoiding care costs a significant motivation in the timing of disposing of the asset?

10. The Council must explain its reasons in writing and give the person an opportunity to challenge the decision.
11. It is not our role to say whether the decision the Council made is correct, our focus is on the decision-making process. The Council has followed the correct process to reach its decision, so it is unlikely the Ombudsman would find evidence of fault. The Ombudsman cannot question the outcome, even though Miss D strongly disagrees with it.
12. The Council’s delay is unlikely to have caused a significant enough injustice to justify an investigation.
13. Miss D also mentions the way the Council dealt with Subject Access Requests. The Information Commissioner’s Office is better placed to consider such concerns.

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Final decision

14. We will not investigate Miss D’s complaint because it is unlikely we would find evidence of fault or reach a different outcome.

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Investigator's decision on behalf of the Ombudsman