Summary: We will not investigate Mrs Y’s complaint, made on behalf of Mrs X, about the Council’s decision to treat financial gifts from Mrs X’s accounts to family members as a deprivation of assets and notional capital for care fees purposes. There is not enough evidence of Council fault to justify us investigating.

The complaint

1. Mrs X has paid for her care from her own money for several years. Mrs Y is Mrs X’s daughter and holds Powers of Attorney for Mrs X. Mrs Y gifted on behalf of Mrs X £20,000 of her remaining money to relatives. Mrs Y complains the Council has wrongly treated that money as notional capital and as a deprivation of Mrs X’s assets.
2. Mrs Y says Mrs X paying for her own care has saved the Council a considerable amount of money and considers it unfair that the family cannot have a small percentage of Mrs X’s assets.

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The Ombudsman’s role and powers

3. 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)
4. 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 from Mrs Y, and the Ombudsman’s Assessment Code.

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My assessment

6. We are not an appeal body. We may only criticise a council decision where there is evidence of fault in the decision-making process and but for that fault a different decision would have been made. So we consider the process followed to make the decision. We cannot replace a decision with our own or someone else’s opinion if the decision was reached after following proper process.
7. The Council considered Mrs X’s finances and the information received from Mrs Y about the monetary gifts when deciding to treat the gifting as a deprivation of assets and the money as notional capital. It was for officers to consider whether there was a reasonable expectation that Mrs X would need care, and which she had to pay for or contribute to. They also had to determine whether avoiding spending Mrs X’s money on care was a significant motivation for the gifts.
8. The Council found there was a reasonable expectation on Mrs X and Mrs Y that Mrs X needed care because she had been receiving it for over five years before the gifts were made on her behalf. Officers found there was also a reasonable expectation Mrs X would need to contribute towards that care because she had been self-funding it for those years, the invoices being paid by Mrs Y as a financial attorney. The Council says Mrs Y told officers Mrs X had wanted to make the gifts, which amounted to over a half of the money Mrs X had left, before all her money was used up. Officers therefore considered that avoiding care costs was a significant motivation in the gifts to Mrs X’s family members.
9. There is not enough evidence of fault in the Council’s decision-making process to warrant us investigating. Officers took into account relevant information from Mrs X’s finances and from Mrs Y and applied the relevant tests to reach their decisions. We recognise Mrs Y disagrees with the Council’s decisions but it is not fault for a council to properly make decisions with which someone disagrees.
10. We understand Mrs Y considers Mrs X has spent enough of her own money on care fees and is frustrated the social care system has required Mrs X to use so much of her own money for this purpose. But the current national system requires people with the financial means to do so to fund their own care. That requirement does not stop after a particular time or care fee amount has been paid. Only once a person’s money is at the upper threshold of £23,250 may they receive some financial support from their local authority.
11. We realise Mrs Y may want the social care funding system to be different. But the Council has a duty to follow the system as it stands. If Mrs Y wants that system to change, she would need to raise the matter with her MP, her representative at national government level which put the social care funding rules in place.

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Final decision

12. We will not investigate Mrs Y’s complaint because there is not enough evidence of Council fault to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman