Summary: We will not investigate this complaint about the Council’s decision Ms Y deliberately deprived herself of capital to avoid paying for care. There is insufficient evidence of fault by the Council.

The complaint

1. Mr X complained the Council wrongly decided his great aunt (Ms Y) had deliberately deprived herself of capital to avoid paying care fees. He said there was no evidence Ms Y’s attorney’s motivation for investing in financial products in 2021 was to avoid paying for care.
2. Mr X said the Council’s decision had caused an unnecessary financial burden to Ms Y’s estate, and said the matter had also caused him stress.
3. Mr X wanted the Council to retract its finding of deprivation of assets, exclude the products from Ms Y’s capital and reassess her finances.

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The Ombudsman’s role and powers

4. 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

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Ms Y moved into a residential home in 2020. In 2021, her attorney invested in financial products after receiving financial advice. Ms Y continued paying privately for her care until 2025, when Mr X contacted the Council to ask for its help in funding her care given her available money had become depleted. He asked it whether the financial products in question could be disregarded.
8. The Council decided the investment had been a deliberate deprivation of capital in order to avoid paying for care. Mr X disagreed with this, and said the fact Ms Y had continued paying for her care between 2021 and 2025 evidenced the investment was never intended as a way of avoiding paying for care. He said the purchase had been made for low-risk capital preservation and cautious growth.
9. The Council considered what Mr X said, including the alternative explanation of intention Mr X had provided, but upheld its decision. It explained:
• at the point of investment, Ms Y was already in residential care, so her attorney knew she had a need for care and support;
• Ms Y was funding her own care, so the attorney had a reasonable expectation she would need to pay for her care and support; and
• the timing of the disposal was important given the above, and led it to conclude “knowledge of the capital threshold was a motivation for placing the capital into these particular products at the time, when there may have been an alternative financial product available”.
10. Mr X complained to us and said the Council had focused too heavily on the timing of the disposal in coming to its decision rather than properly considering intent.
11. Annex E of the Care and Support Statutory Guidance explains the three tests councils should consider when deciding whether someone has intentionally deprived themselves of capital to avoid paying for care. It says they must consider:
• whether the person knew they needed care and support;
• whether the person had a reasonable expectation they may need to pay towards that care and support; and
• whether the timing of the disposal indicates a motivation to avoid paying for care.
12. Councils are entitled to draw inferences on motivation based on the three factors set out in the guidance, including taking account of the timing of disposal.
13. We are not an appeal body, and where the Council has made its decision properly, taking the relevant factors into account, it is not for us to substitute our own decision for that of the Council. In this case, the Council has clearly set out how it considered the relevant factors when coming to a decision and explained why the timing of the disposal led to its inference regarding intent. There is insufficient evidence of fault in how it came to its decision and it is not therefore proportionate for us to investigate the complaint.

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Final decision

14. We will not investigate Mr 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