Summary: Mrs X complained on behalf of Mrs Y, that the Council did not inform her of her care charges and did not properly reach its decision about an intentional deprivation of assets. We found fault which caused injustice to Mrs X and Mrs Y. The Council should apologise and reconsider its decision.

The complaint

1. Mrs X complains on behalf of her mother (Mrs Y), as her attorney for health and finances. She said the Council:

a) Did not inform her about Mrs Y’s care charges or confirm her agreement to paying before placing Mrs Y in a care home.

b) Did not properly consider all the relevant information before deciding Mrs Y had intentionally deprived herself of assets and is liable for the full costs of her care.

2. Mrs X says the Council’s decision-making has left Mrs Y in debt and caused Mrs X and her family avoidable distress about repayment.

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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. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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(i), as amended)

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How I considered this complaint

5. During my investigation I spoke to Mrs X to discuss his complaint and considered information she provided. I also made enquiries of the Council and considered its response.
6. Mrs X and the Council had an opportunity to comment my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

7. The LGSCO’s Principles of Good Administrative Practice says we expect councils to act fairly and proportionately and to be open and accountable. This includes:
• Explaining clearly the rationale for decisions and recording them;
• Stating the criteria for decision-making and giving reasons; and
• Keeping proper and appropriate records.
8. A council must provide local people with information and advice about care and support for adults and support for carers. (Care Act 2014, section 4)
9. Care and Support Statutory Guidance (CSSG) is statutory guidance which councils should normally follow. It says councils can charge people for care they provide and if there is a charge, this should follow national regulations on charging. I have summarised relevant paragraphs of CCSG below:
1. Care and support should put people in control of their care. A vital part of this process for people with ongoing needs which the local authority is going to meet is the care and support plan. The plan must detail the needs to be met and how the needs will be met. (Paragraph 10.1 and 10.31)
2. The local authority must take all reasonable steps to agree with the person the way the plan details how needs will be met, before the authority signs off the plan (Paragraph 10.81)
3. At the time of assessment of care and support needs, and financial assessments the Council should establish if the person has capacity to take part. If the person lacks capacity, the Council should find out if the person has for example, a Power of Attorney and involve their representative in the decision making. (Paragraph 8.18)
4. Upon completion of the plan, the local authority must give a copy of the final plan which should be in a format that is accessible to the person for whom the plan is intended, any other person they request to receive a copy, and their independent advocate if they have one and the person agrees (Paragraph 10.87)
5. Councils must be transparent, so people know what they will be charged. There should be enough information available so they can understand any charge. (Paragraphs 8.2 and 8.3)
6. Councils should provide or signpost to advice and information when people come into contact with them. They should provide information to help people understand what they may have to pay, including an explanation of the charging framework. (Paragraph 3.43)
7. Where a local authority has decided to charge, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and if there is any fluctuation in charges, the reason. (Paragraph 8.16)
8. The financial limit, called the upper capital limit sets out what point a person can access local authority funding for care. The upper limit is £23,250. If a person has savings (capital) over the upper capital limit, a council may charge them the full cost of their care. When their capital falls below the upper limit, they are entitled to seek means-tested support from the authority. This means the council will do a financial assessment of the person’s assets and will charge based on these rules. (Paragraphs 8.11 and 12)
9. A council may treat a person as having capital when the person has deliberately decreased their assets as a way of reducing their charge. A person can deprive themselves of capital in many ways including making a gift to someone else or converting it into something that would be disregarded under the financial assessment like personal possessions. The person must have known they needed care and support and have reduced the assets in order to reduce their contribution. (CCSG Annnex, E Paragraphs 6 and 8)
10. There may be many reasons for a person depriving themselves of an asset. A council should consider the following before deciding whether deprivation is for the purpose of avoiding care and support charges:
1. Was avoiding the charge a significant motivation in the timing of the disposal of the asset: at the time the capital was disposed of, could the person have a reasonable expectation of the need for care and support?
2. Did the person have a reasonable expectation of needing to contribute towards the cost of care? (Annex E Paragraphs 10 and 11)

What happened

10. Mrs X told me:
• Mrs Y (her mother) now has advanced dementia. Since December 2018, Mrs X, and her siblings (Mr N and Mr O) have had Power of Attorney (POA) for Mrs Y’s health and finances.
• In late 2014, Mrs Y decided to transfer her home to her three children. Mrs Y and her new partner intended to marry. The new partner had done the same with his children, as the couple wanted to avoid future inheritance issues arising between them and their children.
• In early February 2015, Mrs Y started the legal process with a solicitor. Unfortunately, the following day she suffered a fall and was hospitalised.

Mrs Y’s care needs background

11. The available records say:
• Mrs Y had hospital rehabilitation and was discharged home.
• In April 2015, the Council completed a care and support plan for Mrs Y which included four home visits to help with food, medication, and personal care.
• In May, it financially assessed Mrs X and decided she did not have to make a personal contribution towards her care costs. The Council said it could not provide a copy of the financial assessment, because it had since updated its financial records system.
• In early June, Mrs Y’s property transfer was completed. Mrs X, and her siblings became the new owners. The records say Mrs Y had mental capacity to transfer the property at the time.
• In late 2018, Mrs X’s care needs increased, and she moved into supported housing.
• In early 2020, the transferred property was sold, and the sale proceeds were shared between Mrs X and her two siblings.

Mrs Y’s care and support needs assessment- 2021

12. In October 2021, Mrs Y fell and was hospitalised again. Following treatment, in late October Mrs Y was discharged to a permanent nursing home with 24-hour care.
13. The records say the discharge assessment was completed by the hospital’s safeguarding officer. The assessment record confirms Mr N, as POA was consulted about the plan and agreed the cost for a week until a further review in a weeks’ time.
14. The available records show the Council reviewed Mrs Y’s care needs in mid-November. Her care and support plan says:
• The Council discussed Mrs Y’s new care situation with Mrs X and Mr N. They agreed Mrs Y should remain at the nursing home.
• Mr N advised the financial assessor (‘the assessor’) that Mrs Y did not have any savings which would require her to contribute to her care charges. However, the assessor explained this would be subject to a financial assessment.
• The weekly care charges would be approximately £500 until the financial assessment was completed.
15. The records do not show if the Council provided Mrs X or Mr N with a copy of Mrs Y’s care and support plan. However, the plan says the contents were agreed with Mrs Y’s representative and would be posted. The records do not show if this happened. Mrs X told me the assessor did not discuss the care costs or explain if Mrs Y would be liable for any further charges during her contact.

Mrs X’s financial assessment – 2021

16. The records show, in late November 2021, the Council completed a telephone financial interview with Mr N. The assessment record does not set out everything that was discussed. However, it noted Ms X may have previously owned a property and the assessor informed Mr X that this would need to be explored further.
17. The following day the assessor emailed Mr N and asked for a copy of the Power of Attorney document (POA) and copies of Mrs Y’s bank statements. They informed Mr N the Council was checking if a deprivation of assets had occurred and provided further information about the process.

Council’s deprivation of assets decision- 2022

18. In late April 2022, the Council issued a financial assessment outcome letter, to say:
• The records showed Mrs Y had contact with adult social care since 2008 after a stroke. Mrs Y also had home care visits since 2015.
• During the 2015 financial assessment, the effect of disposing assets would have been explained to Mrs Y. Mrs Y would have also known she needed on-going care at that point and while transferring her property. Mrs Y would also have had a reasonable expectation that she would need to contribute to her care charges.
• The Council was of the view, Mrs Y had intentionally deprived herself of assets and was liable for her care charges since November 2021.

Mrs X’s complaint

19. In response, Mrs X and Mr N complained to the Council. They said they did not accept the Council’s decision as it had failed to obtain relevant information before reaching its decision. They also requested copies of Mrs Y’s care records.

The Council’s responses

20. In its stage one response the Council said:
• It accepted some of the care documents were no longer available.
• The available evidence indicated the Council may have breached statutory guidance in initially assuming the property transfer was asset deprivation. Some of the evidence was consistent with Mrs Y being unaware she would need long-term care in the future.
• However, it was upholding its decision because the avoidance of care charges must be considered a motivation. It said Mrs Y had lived in her home for many years, and it was her sole residence when it was transferred to her children.
• Mrs Y was also receiving care from the local authority and had an expectation that her health would decline, and care needs would increase. It could not establish any other any purpose for the transfer.
21. In reply, Mrs X and Mr N explained:
• The Council had not obtained all the relevant information about Mrs Y’s motivations and intentions from them (as POAs), before reaching its decision about why she transferred the property.
• Mrs Y’s relationship with her late partner and the transfer being related to avoiding of inheritance issues as they planned to marry.
• Mrs Y did not know she would fall and become unwell when she started the property transfer process in February 2015.
• The Council did not discuss capital limits or asset disposals during its 2015 financial assessment. Mrs N told the Council she was making the transfer, but it had never previously raised it as an issue.
22. In its stage two response the Council said:
• It was upholding its stage one findings despite the additional information provided. It appreciated the timing of Mrs Y’s visit with her solicitor was before her fall in 2015. But she had continued the transfer process despite knowing her care needs were increasing.
• Mrs Y would therefore have known she would need 24-hour care at some point in the future. A transfer of property at this time would therefore have resulted in avoiding paying care home fees and amounted to a deprivation of assets.
23. Unhappy with the Council’s response, Mrs X approached the Ombudsman.
24. Mrs X explained that the nursing home has continued to send invoices for Mrs Y’s care which remain unpaid. Mrs X explained this had caused her and her sibling’s uncertainty and distress about the repayment.

Was there fault and did it cause injustice?

i) Mrs X says the Council did not inform her about Mrs Y’s care charges or confirm her agreement to the costs before placing Mrs Y in a care home.

25. The records show, Mrs Y’s transfer to the nursing home (October 2021) was arranged by the hospital. Mrs Y’s discharge assessment confirms the hospital contacted Mr N. This was because the Council had Mr N listed as Mrs Y’s main attorney contact. The assessment says Mr N agreed with Mrs Y’s transfer, the weekly cost and understood it would be reviewed by the Council after a week. The Council’s actions at this point were consistent with the CSSG guidance as set out above at paragraph 9 (b) and (c), as it consulted one of Mrs Y’s attorneys. I do not find any fault in relation to this aspect of Mrs X’s complaint.
26. In mid-November 2021 the Council reviewed Mrs Y’s care and support plan. The plan confirms the Council liaised with both Mrs X and Mr N, who agreed Mrs Y should remain at the nursing home (paragraph 14). Mrs X says they agreed with the location, but were not made aware of, or agreed to pay any further costs.
27. However, the plan confirms the contents of Mrs Y’s review (including the weekly care home charges) were confirmed with Mrs Y’s attorneys. The records do not show if the Council provided or posted a copy to Mrs X or any of the other attorneys. The failure to provide a copy is inconsistent with the CSSG guidance (paragraph 9) and is fault. However, I do not consider this meant Mr N or Mrs X were unaware of the on-going costs. The plan notes, Mr N’s discussion with the care assessor about Mrs Y’s lack of savings and that she would not have to make any contribution to her care charges (paragraph 14). I think it is more likely than not, Mr N would not have raised this issue unless he had been made aware of Mrs Y’s on-going care charges in the first place. I do not find the Council failed to make Mrs Y’s attorneys aware of Mrs Y’s care charges or place her in a care home without their agreement.

ii) Mrs X says the Council did not properly consider all the relevant information in deciding Mrs Y had intentionally deprived herself of assets and was liable for the full costs of her care at the care home.

28. The Ombudsman is not an appeal body. It is not our role to decide whether Mrs Y’s action amounted to an intentional deprivation of assets, that is the Council’s job. Our role is to review the process by which decisions are made. If we consider there was no fault in the decision-making process, we cannot question the merits of the Council’s decision.
29. I have considered the steps the Council took when deciding if Mrs Y had intentionally deprived herself of capital to avoid paying care charges from 2015. In my view the Council has not clearly evidenced it considered the matters in Annex E Paragraph 11 of CSSG. The Council accepts this in its stage one complaint response, in which it says it initially breached the guidance in assuming asset deprivation (paragraph 20), although some of the evidence showed it might be otherwise. The Council offered a different explanation in its stage two response, where it added the timing of the disposal meant avoidance of care charges was still a motivation and she knew she would require 24-hour care in the near future.
30. The Council has not properly explained, how it reached the conclusion in 2022, that a significant motivation behind the transfer of Mrs Y’s property in 2015, was to avoid care charges, as opposed to resolving potential inheritance issues which could arise when she married her new partner. Had the Council considered these matters, I would expect it to have set them out in its response to my enquiries. I would also expect the Council to have specifically explored the timing of Mrs Y’s disposal with her or one of her attorneys (Mr N or Mrs X) in more detail before making its decision. There is no evidence that it did. This is not in line with our Principles of Good Administrative practice, which expect a clear contemporaneous record of the decision (Paragraph 7). This is fault which meant the Council's decision was taken without all the relevant information and discussion with Mrs Y’s attorneys. This caused Mrs X uncertainty and frustration about whether the Council had reached the correct outcome. This is injustice.

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Agreed action

31. I have not upheld Mrs X’s complaint about the charging process. However, I have found the Council failed to properly explain, applying Annex E of the Care and Support statutory guidance why it considered the transfer of Mrs Y’s home to her children was a deliberate deprivation of Mrs Y’s capital.
32. The aim of our remedies is to try and put the person back into the position they would have been in ‘but for’ the fault. The Council should:

a) Within two months of my final decision, assign a different officer to reconsider the decision to treat the transfer of value of Mrs Y’s property as notional capital, applying the guidance in Paragraphs 10 and 11 of Annex E of Care and Support Statutory Guidance. The Council should provide us with a written record of the fresh decision. If it alters Mr Y’s financial assessment, the Council should set this out as well.

b) Within one month of my final decision, apologise to Mrs X for any avoidable uncertainty and frustration caused by the Council's failure to consider the transfer of value of Mrs Y's property in line with Annexe E and the Care and Support Statutory Guidance.

33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have found fault by the Council which caused injustice to Mrs X and Mrs Y. I have made recommendations which the Council has agreed to address the injustice.
35. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman