Summary: We found the Council made its decision that Mrs Y deprived herself of assets in line with relevant law and guidance without fault.

The complaint

1. Mrs X complained about the Council’s decision that her grandmother, Mrs Y, deprived herself of assets.
2. Mrs X says her grandmother set up a discretionary trust to protect her home when she had no foreseeable need for care. Mrs X says the Council has ignored supporting medical evidence and overturned a lawful trust.

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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.
4. 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)
5. 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(1), as amended)

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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Rules and regulations

8. 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. 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.
9. 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.
10. 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.
11. Regulations say a council can treat someone as ‘possessing 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 and support’ (Care and Support (Charging and Assessment of Resources) Regulations 2014, Regulation 22).
12. The guidance outlines a council should take care when considering any potential deprivation of assets and fully explore any reasons why someone may no longer own an asset before deciding if this was a deprivation. The Council should consider three factors when deciding if a deprivation of assets has taken place:
• whether there was a reasonable expectation of needing care;
• whether there was a reasonable expectation of the need to contribute towards the costs of that care; and
• whether avoiding care costs was a significant motivation in disposing of the asset.

What happened

13. In 2019, Mrs Y put her house into trust for the benefit of her son-in-law, Mr Z, and Mrs X.
14. In November 2024, Mrs Y was admitted to hospital following a fall. The hospital discharged Mrs Y with a recommendation of 24-hour care in a care home setting.
15. The Council completed a care assessment of Mrs Y in December 2024 and told Mr Z it needed to complete a financial assessment and asked him to provide information.
16. In January 2025, the Council completed a financial assessment of Mrs Y and applied the 12-week disregard to Mrs Y’s property. The Council continued to liaise with Mr X and sought further information about Mrs Y’s property into February 2025.
17. In February 2025, Mr Z provided the trust documents to the Council. Mr Z told the Council Mrs Y set up the trust to prevent the property passing down to the family of a deceased partner and to ensure it passed to himself and Mrs X.
18. The organisation that set up the trust for Mrs Y told the Council that Mrs Y’s motivation for setting up the trust was to provide for Mrs X following Mrs Y’s daughter passing away in 2019. The organisation elaborated the trust was a robust mechanism to safeguarding Mrs Y’s property for her chosen beneficiaries and avoids disputes, lengthy estate administration and legal costs.
19. In March 2025, the Council made an internal case note detailing its thinking about whether Mrs Y’s property was a deprivation of assets. The Council noted:
• Mr Z and the organisation who set up the trust said Mrs Y’s motivation to set up the trust was to ensure the property passed down to her chosen beneficiaries.
• Legally, step-children who are not adopted by the person who died cannot inherit under the rules of intestacy.
• The organisation’s website mentions that trusts can be used to avoid properties being used for care fees.
• When Mrs Y set up the trust she was 85 years old and had a number of long-term health complaints so must have known she needed care and support.
• Mrs Y’s long term partner moved because of care needs two years before Mrs Y set up the trust showing that Mrs Y would have a reasonable expectation of needing to pay towards care costs.
• It needed more information about Mrs Y’s motivation for setting up the trust before it could make a formal decision.
20. The Council sought more information from Mr Z about Mrs Y’s circumstances, notably about Mrs Y’s former partner’s family. Mr Z provided as much information as he could but explained he did not know all the details about that other family. However, Mr Z could confirm that when Mrs Y met her former partner his children were already adults.
21. At the end of March 2025, the Council wrote to Mr Z to confirm it considered Mrs Y placing her property in trust was a deprivation of assets. The Council explained how Mr Z could appeal this. The Council said:
• It considered Mrs Y had a reasonable expectation they would need care and support. The Council said Mrs Y put her property into trust when she was 85 years old and had a number of long-term health complaints. The Council said Mrs Y started to receive attendance allowance in 2016 at the highest rate payable, meaning she was assessed as needing someone to help look after her, since before she set up the trust.
• It considered Mrs Y had a reasonable expectation of needing to contributed towards the cost of eligible care needs. The Council said means testing for adult social care has been widely publicised and commonly known for years. Added to this, the organisation who set up the trust’s website mentions avoiding care fees as a reason to set up a home protection trust. And, the Council outlined in 2017, Mrs Y’s partner stopped living with Mrs Y because of his care and health needs. The Council said it was highly likely Mrs Y was involved in conversations about the cost for his care.
• It considered Mrs Y had a motivation to avoid care fees by putting her property into trust. The Council said the organisation who set up the trust explained that Mrs Y’s motivation was to protect the property for Mrs X. The Council said a Will would have achieved this same goal. Given the information Mr Z provided, Mrs Y’s former partner’s family would have had no claim to the property because they were not adopted by Mrs Y.
22. In April 2025, a third party acting for Mr Z contacted the Council to dispute its decision that Mrs Y had deprived herself of the asset of her property. The third-party said Mrs Y did not have a foresight of needing care when she created the trust and being entitled to attendance allowance did not automatically imply a need for residential care. The third-party also said Mr Z would not have known Mrs Y’s full motivations in setting up the trust because this was a private conversation with the organisation who set it up. The third party disputed that a Will would have achieved the same goals and the trust had some key benefits over a Will and Mrs Y did not set it up to avoid care charges.
23. In May 2025, the Council requested further information from Mrs X for Mrs Y’s medical records and any notes from the organisation, or other professionals, involved in setting up the trust for Mrs Y. The Council said it would review its decision on receiving this information.
24. In June 2025, the organisation provided the written agreement with Mrs Y when setting up the trust. Mrs X provided Mrs Y’s medical records.
25. In July 2025, the Council provided a complaint response to Mrs X. The Council said it upheld its decision that Mrs Y deprived herself of assets and explained its rationale and directed Mrs X to the Ombudsman. The Council said:
• It accepts a person can receive attendance allowance without a need to go into residential or nursing care. However, it noted that Mrs Y could only have received attendance allowance because she had care needs and this combined with her age gave a reasonable foreseeable expectation of needing care.
• The extra information provided by the organisation who set up the trust included a signed disclaimer by Mrs X. This disclaimer confirmed Mrs X understood that a trust would not protect against a council claiming against the property for potential care costs. This showed Mrs X was aware that care provision would come at a cost.
• It understood Mrs Y’s motivation to set up a trust was to ensure the property stayed in the family. But the Council maintained its position that a Will could have achieved the same purpose and Mrs Y used a trust to try to avoid care fees.

Analysis

26. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine or define the law.
27. The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decision Mrs Y deprived herself of assets. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.
28. A council must consider three main questions when deciding if a person has deprived themselves of assets. This is whether a person has a reasonable expectation of needing care, a reasonable expectation of needing to contribute towards the cost of care and whether avoiding care costs was a significant motivation in disposing of an asset. A council should not be deciding a person has deprived themselves of assets without suitable justification as a person can dispose of an asset without this being a deprivation.
29. The Council has shown it has considered the full circumstances involved in Mrs Y placing her property into trust. The Council made enquiries of Mr Z and Mrs X to get relevant information and reviewed the information provided by Mr Z, Mrs X and the organisation who set up the trust. The Council applied itself to the three questions about foreseeable need for care, foreseeable need to contribute towards care costs and motivation for placing the property into trust. And, the Council has shown it has explained its rationale to Mr Z and Mrs X.
30. Overall, the Council has made a merits decision that Mrs Y deprived herself of assets considering the relevant guidance. This was a decision the Council was entitled to make and I do not find fault with the Council in the absence of fault in the process and procedure.

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Decision

31. I have completed my investigation as there was no fault with the Council.

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Investigator's decision on behalf of the Ombudsman