Summary: We will not investigate this complaint about the Council’s decision to include notional capital in Mrs Y’s financial assessment for care. There is insufficient evidence of fault in how the Council came to its decision.

The complaint

1. Mrs X complained her mother (Mrs Y) was wrongly found to have deliberately deprived herself of assets. She said the Council failed to properly consider
   Mrs Y’s circumstances at the time she made a gift of £50,000.
2. Mrs X said this caused significant distress about how Mrs Y’s care will be funded. She wanted the Council to take the relevant information into account and reconsider its decision.

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The Ombudsman’s role and powers

3. 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

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. The Council carried out a financial assessment for Mrs Y to decide whether it should contribute to her care costs. It discovered she had gifted £50,000 to her children shortly after she had been admitted to hospital. The Council decided this was a deprivation of capital and included the £50,000 as ‘notional capital’ in her financial assessment.
7. The Care and Support Statutory Guidance says “In some circumstances a person may be treated as possessing a capital asset even where they do not actually possess it. This is called notional capital. Notional capital may be capital which:
• (a) would be available to the person if they applied for it
• (b) is paid to a third party in respect of the person
• (c) the person has deprived themselves of in order to reduce the amount of charge they have to pay for their care

(Care and Support Statutory Guidance, Annex B, sections 28-29)

8. The Ombudsman is not an appeal body. We consider whether there is fault by an organisation and whether that fault has caused injustice, such as a different outcome. Where there is no fault in the organisation’s decision-making process, we cannot substitute our view for that of the Council.
9. The Council considered the timing of Mrs Y’s gift and her previous need for care. It considered previous conversations it had held with Mrs Y’s family, and information it had provided to them about paying for care privately. The gift brought Mrs Y’s capital below the upper limit of £23,250, at which point a local authority would normally pay towards a person’s care. The Council decided Mrs Y had reasonable expectation that she would need care, and that she would need to pay for that care, at the time she made the gift.
10. The Council considered the relevant factors when coming to its decision, and explained its reasons when communicating its decision to the family. Mrs X disagrees with the Council’s decision, but that does not make it fault. There is insufficient evidence of fault in how the Council came to its decision, so we could not question that decision. It is not proportionate for us to investigate the matter further.

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Final decision

11. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman