Summary: The Council was at fault in how it decided Mrs Y had deprived herself of an asset to avoid paying for her care. This caused Mrs Y’s representative, Mrs X, avoidable frustration and uncertainty. The Council will reconsider its decision. It will also issue a reminder for staff to ensure they consider both parts of the test for deciding if a person has deprived themselves of assets, as set out in the care and support statutory guidance.

The complaint

1. Mrs X complained the Council wrongly decided her mother, Mrs Y, had given away over £225,000 for the purpose of avoiding paying for her care and support. The Council’s decision meant Mrs Y was assessed as having to pay full cost for her care. Mrs X said this meant Mrs Y’s needs were not being met and removed the option of Mrs X having respite from her caring responsibilities.

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The Ombudsman’s role and powers

2. 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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Paying for care

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, 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.
9. When a council arranges a person’s care 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. If a person has capital over £23,250, they must pay full price for their care.

Deprivation of assets

10. When undertaking or reviewing a financial assessment a council may identify circumstances that suggest that a person may have deliberately deprived themselves of assets. Deprivation of assets means a person has intentionally deprived or decreased their overall assets in order to reduce the amount they are charged towards their care.
11. The Care and Support Statutory Guidance says “there may be many reasons for a person depriving themselves of an asset. A council should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
• Whether avoiding the care and support charge was a significant motivation in the timing of the disposal of the asset; at the point the capital was disposed of could the person have a reasonable expectation of the need for care and support? (the first test); and
• Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?” (the second test)
12. If a council decides a person has deprived themselves of a capital asset to avoid care charges, it treats the asset as if it still belongs to the person receiving care.

What happened

13. This section sets out the key events in this case and is not intended to be a detailed chronology.
14. In 2023, after suffering an acute health episode, Mrs Y sold her home and moved in with Mrs X. Mrs X gave up work to take care of Mrs Y. Mrs Y then gave away the money (over £225,000) she earned from the house sale to Mrs X and other family members.
15. In 2025, Mrs Y had another acute episode and her needs increased. Mrs X asked the Council for help meeting Mrs Y’s needs. The Council assessed Mrs Y’s finances and concluded she had deprived herself of assets to avoid paying for care. Mrs X disagreed with the Council’s decision and said:
• When Mrs Y sold her home, she could largely take care of herself. Mrs X said the only issue was that Mrs Y could not use a phone or TV remote control; and
• Mrs Y had given her money away as gifts and to help Mrs X pay the cost of rent and bills after Mrs Y moved in. Mrs X said Mrs Y did not know she would eventually need full-time care.
16. The Council’s records show it decided Mrs Y had a reasonable expectation of needing care and support when she sold her home because:
• Mrs X had begun receiving Attendance Allowance in the 2010’s. Attendance Allowance is a benefit for people with health needs who need help taking care of themselves and who have needed help for at least six months;
• Mrs Y had received Carers Allowance for Mrs X since 2022. Carers Allowance is a benefit for people who care for another person with a disability or illness, for at least 35 hours per week; and
• Mrs Y may have wanted to contribute to the costs of living at Mrs X’s home, but that did not account for the large amounts of capital she gave away to other family members.
17. With regards to the second test, the Council only said that many people have to contribute towards the cost of their care or pay for it in full. The Council noted it has to use public funds carefully to support people who cannot afford their care.
18. The Council decided that Mrs Y had deprived herself of assets to avoid paying for care and so it would treat her finances as if she had kept the money from the house sale. This meant Mrs Y would have to pay the full cost of her care.
19. Mrs X complained to the Ombudsman. She said that because of the Council’s decision, Mrs Y was not able to go to a day centre in the week, because she could not afford it. Mrs X said this meant Mrs Y’s needs were not being met, and she was not getting any respite from her caring responsibilities.

Findings

20. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.
21. The Council considered the relevant evidence when deciding Mrs Y’s case met the first test; having a reasonable expectation of needing care and support. While Mrs X said Mrs Y only needed help using a TV remote and phone, the Council noted Mrs Y had sold her home and moved in with Mrs X for the purpose of receiving care. This indicated her needs were higher than Mrs X had reported. The Council also noted Mrs X received a benefit which is only for people who need care and Mrs Y received a benefit only given to people who provide full-time care. The Council appropriately considered Mrs Y’s motivation for giving the money away. It noted that while Mrs X said it was to help with the cost of Mrs Y living with her, Mrs Y did not have to gift the rest of the capital away. Because there was no fault in how the Council considered whether Mrs Y had a reasonable expectation of needing care and support, I cannot question its decision.
22. However, the Council failed to consider the second test properly, which was fault. That test is whether the person had a reasonable expectation of needing to pay for care at the time their asset was disposed of. The Council noted that many people have to contribute towards their care, but this does not evidence how it considered whether Mrs Y specifically had a reasonable expectation of having to pay for care when she gave the house sale proceeds away. I cannot say, even on balance, that had the Council not been at fault, it would have decided Mrs Y did not have a reasonable expectation of having to pay for her care. Therefore, I have recommended the Council make its decision on the second test again, without fault.

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Action

23. Within one month of the date of my decision, the Council will take the following actions.
1. Reconsider its decision on the second test, considering whether Mrs Y had a reasonable expectation of paying for care when she gave the proceeds of her house sale away. The Council will record how it came to its decision and notify Mrs X.
2. Remind staff they must consider both parts of the test on deprivation of assets and keep suitable records of the decision on each part.
24. The Council will provide us with evidence it has complied with the above actions.

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Decision

25. I find fault causing injustice. The Council has agreed actions to remedy that injustice and prevent fault in future.

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Investigator's decision on behalf of the Ombudsman