Decision Date: 26 April 2023
What happened
Mr C complained to the Ombudsman that the Council’s enquiries when considering whether his father had deliberately deprived himself of assets were intrusive and unreasonable and caused him distress. He further complained that the Council failed to backdate funding which had previously been agreed and that it continued to send him demands for payments.
Mr C’s father moved into a care home as a self-funder in late 2017. It was reported that Mr C first contacted the Council via email in November 2021 to advise that his father’s funds were depleting and would be likely to fall below the threshold [the upper capital limit as set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 is £23,250) the following year. The Council replied suggesting that Mr C make contact again when his father was closer to the threshold, when it could then trigger a financial assessment.
Mr C contacted the Council again in early January 2022, via its web portal. The Council requested some additional information. Mr C reverted back to the Council in mid-January advising that his father was at the end of his life and therefore he did not see that it was necessary to proceed with the financial assessment.
Mr C’s father’s health improved and Mr C contacted the Council again in March 2022 requesting that it proceed with the financial assessment. He also provided information that had previously been requested i.e., substantial gifts that had been made to Mr C and his sister by their father in 2018, following the sale of his property.
The Council queried these financial gifts. Mr C explained that at the time, his father’s life expectancy was short and it was believed that he would have enough money to cover his care even after these gifts. The Council requested medical evidence to back this up and this was provided in mid-May.
The Council accepted this evidence and confirmed that the gifts would not be considered deprivation of assets and would be discounted when completing the financial assessment.
Mr C complained to the LGSCO that the Council had agreed in October 2022 that it would provide backdated funding for the care home placement to January 2022. This was when the financial assessment established that the upper capital limit threshold had been met. Mr C advised this had not happened.
The council confirmed to the LGSCO that this retrospective funding had been applied, totalling £7294.37, as a credit to Mr C’s father’s account. Mr C remained unhappy with this, stating he continued to receive debt recovery letters, and sought all fees to be waived.
What was found
The Care and Support statutory Guidance says: ‘’When undertaking or reviewing a financial assessment …a local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:
(a) 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?
(b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?’’
The LGSCO agreed that Mr C’s father knew that he needed care and support, and that he had a reasonable expectation that he would have to pay towards his care. This was because he was receiving care and support in a care home at the time of the gifts being made, and was already self-funding this. Based on this, the LGSCO found that the Council made appropriate enquiries in considering the motivation for the gifts, finding that it could not be foreseen, based on the evidence at the time, that Mr C’s father would have recovered and still be paying for care at the time that his money reached the threshold.
It was acknowledged that the enquiry process undoubtedly felt intrusive but the LGSCO was satisfied that the Council made the appropriate enquiries into the financial gifts during its financial assessment for Mr C’s father. It found no evidence of fault and therefore found no grounds to recommend Mr C’s request to waive the fees.
The LGSCO found that the Council had placed Mr C’s father’s debt account on hold in September 2022 to stop any further debt recovery letters being sent whilst the matter was being dealt with, and kept the account on hold pending the outcome of the Ombudsman enquiry. The Ombudsman welcomed this as good practice and found no evidence that any delays in settling the account, or applying the retrospective credit, caused Mr C an injustice.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
It can be frustrating for people to contact a council for financial support and to advise of their depleting funds only to be told to come back later. This frustration can be compounded when a council’s waiting list and resources means that funds have run out, necessitating a back payment. It is however our experience that the majority of councils request that this referral is made roughly three months before the threshold is met, and so Mr C’s experience is not unusual.
What is unusual, however, is the approach from the Council in accepting the gifts and ignoring them when completing its financial assessment. And when we say unusual, we mean this in a good way!
There is a common misconception that there is a ‘7-year rule’ when it comes to deprivation of assets. There is no such rule any longer. A local authority can look as far back as they wish to when deciding whether there has been a deliberate deprivation, but the key word here is deliberate. It is important that councils apply the statutory guidance: ‘’did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?
It would be unreasonable to decide that a person had disposed of an asset in order to reduce the level of charges for their care and support needs if, at the time the disposal took place, they were fit and healthy and could not have foreseen the need for care and support. Or, as in Mr C’s case, the person did not reasonably expect to live longer than their assets would cover.
In times of austerity and councils facing major budgetary constraints, all we can say is ‘Hear, hear’ to Surrey for applying the guidance without challenge or negotiation in an attempt to save money.
The full Local Government Ombudsman report on the actions of Surrey County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/22-011-360