Summary: We will not investigate this complaint about the Council’s decision that Mrs Y deliberately deprived herself of assets. There is insufficient evidence of fault to justify an investigation.

The complaint

1. Ms X complained that the Council wrongly considered that Mrs Y deliberately deprived herself of assets when she made a financial gift to Ms X. Ms X considers that the Council failed to carry out a mental capacity assessment for Mrs Y and incorrectly interpreted evidence provided by Ms X when making the decision.
2. Ms X also complained that the Council is unfairly seeking recovery of the financial gift by placing a charge on her house and seeking a monthly repayment.
3. Ms X says the Council’s decision that Mrs Y deliberately deprived herself of capital and the method of recovery have caused significant distress to her.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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

5. I considered information provided by Ms X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council made an appointment for Mrs Y for a Care Act assessment as her health had deteriorated. A few days before the Council carried out the assessment, Mrs Y made a financial gift to Ms X. The Council carried out the Care Act assessment and decided Mrs Y was eligible for care and support.
8. Deprivation of assets is where a person has intentionally deprived or decreased their overall assets to reduce the amount they are charged towards their care. A council must consider if a person had a reasonable expectation that they would need care. It must also consider if a person reduced their assets in order to reduce their contribution towards their care.
9. The Council investigated the financial gift when assessing how much Mrs Y should contribute towards her care. The Council wrote to Ms X explaining that it found Mrs Y was aware that the financial gift would affect how the Council calculated her contribution towards her care. In the letter the Council explained it had considered the information provided by Ms X and spoken to Mrs Y before reaching its decision. It also explained its reasons for considering Mrs Y could have expected to need care and support and why the timing of the gift showed Mrs Y deliberately deprived herself of capital. The Council explained that Ms X was liable to pay the different between what the Council could have charged based on Mrs Y’s current assets and income and what it would have charged if Mrs Y had not made the financial gift.
10. Ms X complained to the Council about its decision as she considered the Council should have carried out a mental capacity assessment when speaking to Mrs Y. She also disputed that Mrs Y was aware she would need care and support when making the gift and intended to deprive herself of assets.
11. In response to the complaints, the Council explained that officers visiting Mrs Y were satisfied she had capacity to understand the officers’ questions and the impact of making the gift to Ms X on her contribution to her care. So, the Council did not need to carry out a mental capacity assessment. The Council also explained why it considered Mrs Y would have been aware she may need care and support when she made the gift and why she intended to deprive herself of assets.
12. We are not a right of appeal and we do not come our own view on whether a person has deliberately deprived themselves of assets. Our role is to consider if there is fault in how the Council reached its decision. We will not question a decision if we consider there is no fault in how the Council reached the decision.
13. The Council’s decision letter and responses to Ms X’s complaint show it considered the appropriate tests and evidence when making its decision. The letters provide a reasoned explanation for why the Council considered Mrs Y had a reasonable expectation that she would require care and support. The letters explain why it considered she had intentionally deprived herself of assets when making the gift. The letters also show that the Council considered the evidence provided by Ms X and Mrs Y when reaching its decision. I am mindful that Ms X disagrees with the Council’s interpretation and weight placed on evidence. But it is a matter for the Council to decide how it interprets evidence and the weight placed on it.
14. A council must presume a person has capacity to make a decision and must only assess a person’s mental capacity to make a decision if their capacity is in doubt. The Council explained why it considered Mrs Y had capacity to understand its questions and the implication of making the gift to Ms X.
15. So, there is insufficient evidence of fault to justify investigating Ms X’s complaint about the Council’s decision that Mrs Y had deliberately deprived herself of assets.
16. In its letter notifying Ms X of the decision, the Council apologised for the time taken to reach its decision and acknowledged the distress caused to Ms X. An apology for the time taken is an appropriate and proportionate remedy so we will not investigate any delays in the Council’s decision.
17. We will not investigate Ms X’s complaint that the Council is recovering the care charges by placing a charge on her house and by monthly payment. The law allows the Council to recover the charges from Ms X as she was the beneficiary of the asset. It is a matter for the Council to decide how to recover the charges. So, there is insufficient evidence of fault to justify an investigation.

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Investigator's decision on behalf of the Ombudsman