Summary: Mr X complained the Council did not properly consider the history of gifting when calculating notional capital due to deprivation of assets. There was no fault on this point. There was some delay and failure to pay the correct amount to the care home but this did not cause significant injustice to the family.

The complaint

1. The complainant, Mr X, complains for his father Mr D. Mr X says the Council has not paid the care home from 22 August to 2 September 2024.
2. Mr X also says the Council has not properly considered the history of gifting when calculating the notional capital due to deprivation of assets, which has meant that his father has used more of his savings for care costs than he should have done.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. Mr X 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

7. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
8. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

9. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.
10. 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.
11. When the Council arranges a care home placement, 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.
12. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
13. Deprivation of capital is when someone knowingly reduces the value of an asset they hold for financial benefit. The regulations say a council can treat someone as possessing capital (notional capital) if they find that person has deprived themselves of it, for the purpose of decreasing the amount they may be liable to pay towards the cost of meeting their needs for care.

Care home fees

14. The Council has said that it paid the care home fees net on 17 March 2025. It has said it was at fault, as it should have paid the gross amount, which was paid by 14 July 2025. This remedies the injustice to the family and no further investigation is needed on this point.

Deprivation of assets - gifting

15. The Council wrote to Mr X on 26 September 2024. It says ‘evidence of historical gifting supplied do represent a precedent for gifting, however, the gifting is usually for £3000 at any given time. As this gifting totals £17,000, the difference of £14,000 will be included in the assessment as notional capital’.
16. Mr X has said he considers the gifting total made on behalf of Mr D was £8083 across 20 months. This would leave a notional capital of £8,917 instead of £14,000. Mr X has also said that he sent new evidence to the Council showing a pattern of gifting to his sister and her family of £1050, across 20 months this would be £1750.
17. The Council has said that the family asked for funding assistance on 19 September 2023, stating that Mr D had savings of approximately £30,000 at that point. The Council said there was gifting of £17,000 from Mr D’s account from 28 September until 25 December 2023. The Council said ‘the amount gifted was over half of Mr D’s capital at a time he needed care and it was disproportionate given the guidance says ‘any gifts should not impact on a person’s ability to be able to pay for their care for the rest of their life and should be comfortably affordable’. The Council said it concluded that an amount of £3,000 fell within the Office of Public Guardian’s (OPG) guidance, resulting in the remaining £14,000 included in Mr D’s financial assessment as notional capital.
18. I have looked at all the information. Mr X’s view, if I understand it correctly, is that the amount gifted in the 3 months from September 2023 should be averaged out over the time Mr D has been in care and so would be around £3,000 per year if it had been considered in this way. The Council’s view is that the £17,000 was gifted in 3 months and was over half of the savings he had at a time when he was aware that the money was needed for care.
19. My role is not to consider which of the viewpoints is correct, but to determine whether the Council’s decision was made without fault. In my view, there was no fault. It has considered all the available facts and reached a view on a reasonable.
20. I have considered the Ombudsman’s guidance for practitioners on the deprivation of capital. This says the Council should consider three factors:
• 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 the disposing of the asset?
21. I can see the Council has considered these three factors. Mr D went into the care home in 2022 so he knew he needed care and had to contribute towards the costs in 2023. The Council also said the disposal of assets that occurred in the first year that Mr D was in care was significantly higher than before he went into care. This shows the Council considered whether avoiding care costs could be a significant motivation in the timing of the disposal of the asset.
22. The Ombudsman’s guidance also includes guidance on gifts. The gifts from Mr D’s account were made by his attorneys, which included Mr X. The OPG guidance on gifting says that ‘gifts mush always be well within what the person can comfortably afford’. The Council has considered this and reached the view that gifting over half of Mr D’s savings in three months is not reasonable, especially taking into account the size of the Mr D’s estate.
23. I understand Mr X’s concerns. But I cannot find any evidence that there was fault leading up to the decision on the notional capital. The Council has reached its view after considering the information from Mr X and the law and guidance. I appreciate Mr X disagrees with the decision, but it is one the Council is entitled to take.
24. I have noted there was some delay during the financial assessment and complaints process. I do not consider that this caused Mr X an injustice as it has not changed the outcome of the process.

Deprivation of assets - Credit card payments

25. Mr X said that items on Mrs D’s credit card should not be considered as notional capital as the items bought were for Mr D. The Council has said that it agrees, the £4342 on Mrs D’s credit card was not considered as notional capital. There is no dispute on this point. Mr X was informed of this by letter on 26 September 2024.

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Decision

26. I have completed my investigation and I find fault not causing injustice. This complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman