Decision date: 22nd December 2020
What happened
Mrs X suffered from a brain disease which affected her balance, causing falls. She also had an operation in 2010 which ultimately affected her ability to cope with daily living. In 2014 she sold her house to jointly purchase a new house with her son Mr A and his family so they could all live together, and Mr A could care for Mrs X.
A deed of trust was created in March 2014. The deed said, “the property was purchased to provide a home for the owners [Mr and Mrs A] and the beneficiary [Mrs X] in order that the owners can care for the beneficiary alleviating the necessity for the beneficiary to move into a residential care home”. The deed also said that the property was held on trust as tenants in common in equal shares, “subject to a right to reside being granted to the beneficiary by the owners for the duration of her lifetime or until such time that she is medically unable to remain living in the property as her care requirements are more than the owners are able to provide for her within the property”.
Mr A and his family were able to provide the care Mrs X needed. During this time Mrs X:
- contributed £150,000 from the sale of her property towards the purchase of the shared house
- paid £30,000 towards legal fees
- gifted £45,000 to her two daughters.
In November 2018 Mrs X had a stroke and did not fully recover. Mr and Mrs A employed carers to help whilst they were at work. Mr A said Mrs X’s care needs were only related to the stroke, and not to any pre-existing conditions.
In February 2019 Mrs X went into respite care for 4 days but it was then agreed she should stay in the respite care home longer than planned, as she had developed pressure sores. Mr and Mrs A planned to purchase special equipment to facilitate her return home.
Mrs X ended up staying for 40 days in the respite care home. Mr A said that he was told that the first two weeks of the stay would be charged as the flat rate of respite care, and the rest would be charged as a temporary resident. Mrs X returned home in March 2019.
Mr A completed the financial assessment (in March) and paid the invoices subsequently issued. At this time the Council also asked for clarification about the amount of money Mrs X had given her daughters in 2014 and Mr A responded in April.
Mrs X unfortunately passed away in June 2019.
In July the Council’s financial officer wrote to Mr A. It said that the evidence led her to believe that at the time Mrs X had given money to her daughters (2014), the need for future care could have been foreseen. She told Mr A that “in making the gifts, your mother had deprived herself of assets with the intention of reducing future care costs.”
The officer therefore included the £45,000 in the calculation of Mrs X’s assets and said Mrs X should have been charged the full cost of her care in the care home, and an invoice for £4,030.97 would be issued.
The officer also referred to the clause in the Trust deed which said Mrs X would remain living with Mr and Mrs A “until such time that she is medically unable to remain living in the property”.
Mr A complained to the Council in August. He highlighted that he had promptly provided any details the Council had requested, and paid all invoices immediately. Furthermore, it had taken the Council 6 months to notify him about the decision about the charges.
He also said that Mrs X had returned home in March and remained there until her death, so the reference to the clause in the deed about her being “medically unable to remain living in the property” was irrelevant.
He disputed that her future care needs could have been foreseen in 2014.
The Council replied, stating that the reason for delay was because they were exceptionally busy in April 2019, which is when they received the information about the gifts Mrs X had made. The officer stated that at the time Mrs X had made the gifts, she was aware of the limits for charging purposes and had reduced her assets below those limits. She reiterated the Council’s position that Mrs X had deliberately deprived herself of assets to reduce future care home costs.
Mr A then complained to the LGO.
He said that Mrs X’s estate was finalised in July 2019. He said he and his wife did not benefit from Mrs X’s estate as they shared the house, and that Mrs X’s GP confirmed that her stroke could not have been foreseen.
What was found
The LGO first highlighted the Council’s delay in notifying Mr A that the full cost of care should be payable, so was at fault. The Council received the information about the £45,000 in gifts in April, but did not notify Mr A of its change in view until July, by which time Mrs X’s estate had already been disbursed. The LGO said that this delay caused serious consequences and was fault.
The LGO noted the Council contradicted itself when it relied on the deed clause that Mrs X was, “medically unable to remain living in the property”. Mrs X was in fact able to return to the shared family home for the last 2 months of her life, and the Council had regarded her as a temporary resident in the respite care home, in any case.
The LGO commented that the Council, “set aside from its consideration that the purchase of the shared house was made precisely to avoid the likelihood of Mrs X requiring permanent residential care in the future.”
The LGO recommended that the Council review its decision that there was a deliberate deprivation of assets “in the light of the statement in the Care and Support Statutory Guidance (paragraph 7 above) that ‘deprivation should not be automatically assumed’, and to recognise the delay in communicating its decision to Mr A by waiving the care charges.
Points to note for councils, professionals, people who use services and their carers, advocacy providers and members of the public
The Care and Support statutory guidance is very clear that people with care and support needs are free to spend their income and assets as they see fit which includes making gifts to friends and family. It also recognises the importance for people to recognise that they also have to pay a fair contribution towards their care and support costs. How one reconciles that apparent dichotomy might well be illustrated by what the OPG expects of an attorney: customary gifts ONLY. But that is not part of the law of charging for social care.
Advice for councils on this matter is set out in Annex E of the guidance and outlines examples of when a deprivation may have occurred for the benefit of determining this issue. This council decided that Mrs X could have reasonably foreseen her care costs and therefore the gifts given to her daughters amounted to a deprivation.
So how would any council feel confident about that? Usually this is about the timing of when a person needs care and support and when the person actively manages their assets to avoid paying the cost of care.
But recent guidance from the LGO, since this case, may assist readers: https://www.lgo.org.uk/information-centre/news/2022/aug/ombudsman-issues-guidance-on-care-finance-decisions
The Council then went on to give a poor explanation for its justification as the property arrangements were made to provide for Mrs X’s care needs. The stay at the care home was only ever intended to be temporary and the Council had been informed of this. To use this as part of the rationale was unwise and then costly to the Council which was required to reimburse the fees paid.
Situations such as this give rise to the LGSCO becoming involved where Councils have jumped to a conclusion and left people to fight off that sort of pre-judgment. Councils need to act promptly concerning assets and contributions and get their facts correct in doing so.
At CASCAIDr, any charging matter attracts a charge by us, in order that we stay afloat.
The full Local Government Ombudsman report of Dorset Council’s actions can be found here
https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-010-228