Decision Date: 31 October 2024
Summary
Ms C, holder of a Lasting Power of Attorney for Mrs D, her mother, complained that the Council failed properly to consider the evidence provided after the Council had asserted that Ms C had deliberately deprived Mrs D of her own assets to avoid paying care costs, and had inappropriately conducted a financial abuse safeguarding investigation against her.
The LGSCO found some fault in the way the Council communicated its decision with Ms C, as well as in how the safeguarding investigation was concluded.
What happened
Ms C was Mrs D’s daughter and held Lasting Power of Attorney for her mother’s financial affairs.
Due to Mrs D’s struggle with loneliness, in 2018 Ms C built a side extension for a wet room and additional bedroom onto her own home. This enabled Mrs D to move in with her, in 2019 after the renovations were complete.
Ms C contended that the house would not have been adequate to accommodate another person without the extension, and hence the work was carried out on the understanding that after Mrs D sold her property, she would repay Ms C. [Ms C’s sister was also mentioned in the report, but not in sufficient detail as to be able to work out whether she had loaned Ms C some money on the basis of this agreement as to what would be best for their mother.]
Mrs D followed through with that agreement, after selling her house, and she repaid the extension money to Ms C, as well as gifting money to other family members. [The report does not say whether Mrs D made the gifts or whether Ms C made them for her.]
Mrs D spent the majority of her remaining money between July and December 2020.
In late 2020, Mrs D was diagnosed with dementia and went for respite visits to a care home and then in May 2023 she was placed into long term residential care.
On 1 June 2023, the Council completed a care assessment and found Mrs D eligible for help and in need of residential care. The assessment noted the date of her dementia diagnosis. Mrs D was then required to undertake a financial assessment, in which over a course of a couple of months, the Council requested information about Mrs D’s spending and invoices which would demonstrate adaptation costs on Ms C’s property. However, Ms C responded that she had not retained receipts.
On 31 October, the Council notified Ms C that without receipts there was inadequate evidence to support the costs, and that the spending on adaptations would be treated as notional capital because this and the monetary gifts to the family were unusual spending habits for Mrs D.
The Council was concerned that Mrs D had lacked the capacity to make decisions regarding the money paid and was alert to the possibility of financial abuse. As a result, staff opened a safeguarding enquiry in early November and informed Ms C of this, as well as its intent to notify the Office of the Public Guardian (the body which oversees holders of power of attorney).
The NHS confirmed the date of Mrs D’s dementia diagnosis as October 2020 (verbally on 14 November, and in writing on 28 November) and shortly afterwards, on 30 November, the Council closed the safeguarding enquiry as it decided it could not conclude Mrs D lacked the capacity or was coerced into making particular financial decisions at any particular time.
The Council stated that if it had been aware of the date of Mrs D’s diagnosis, [but the report says that it was, during the assessment, which preceded the safeguarding process?] it would have been unlikely that it would have opened an enquiry. Additionally, the Council said its decision on deprivation of capital was based on:
- Mrs D’s application for Attendance Allowance since March 2019, indicating that she therefore required support at that much earlier date.
- Mrs D must have been aware that she would be required to finance the care on a long term basis, due to use of respite services taken up from 2020.
- Unprecedented spending on gifts.
Mrs C complained to the Council regarding the outcome of the financial assessment. The Council amended the financial assessment to incorporate some of the adaptation spending and agreed to review the assessment if Ms C was able to provide further evidence in receipts or independent assessment of the cost of the extension.
Mrs C then took the complaint to the LGSCO, stating that the Council continuously requested information she did not possess, regarding the financial assessment, and failed adequately to consider the information she was able to provide. Thus, the finding that Mrs D had deprived herself of assets to avoid paying care costs was flawed. She also complained that Council’s safeguarding action taken against her was inappropriate and that it was traumatic for her. Additionally, she alleged that the Council did a poor job of communicating with her and considering her complaint.
What was found
Deprivation of assets
The Council was entitled to request information to confirm the amount actually spent. The LGSCO did not find any fault with the Council’s decision on the notional capital regarding the extension Additionally, the Council also said it would consider an independent valuation, which Ms C had not provided.
However, the LGSCO did find that the Council’s conclusion that the gifts made to Mrs D’s family were unprecedented, confused, because she would not have had the money to make gifts with, before the sale. The LGSCO doubted therefore that they could properly be used as a basis to claim that Mrs D deliberately deprived herself of assets.
The Council provided a rationale for its decision that applied the relevant guidance about the thought process that any council must go through regarding a deprivation of assets decision in response to the LGSCO’s draft report. However, this rationale had not been provided to Ms C, and therefore, the LGSCO found fault in this regard, too.
Safeguarding enquiry
The LGSCO did not find any fault in the Council’s decision to conduct a safeguarding enquiry; councils are entitled to do so when the relevant indicators for financial abuse are met.
The LGSCO stated that Council’s acknowledgement that it would not have started an investigation if it had been aware of the date of Mrs D’s diagnosis was admission of an oversight rather than an indication of fault.
However, the LGSCO did recognise that the Council could have closed the investigation earlier upon the NHS’s verbal confirmation of Mrs D’s diagnosis date so as to avoid prolonging Ms C’s stress.
Delay in completion of financial assessment and complaint handling
The LGSCO did not find fault with the time the Council took to complete the financial assessment, nor how it handled Ms C’s complaint. Although the financial assessment was completed over a period of six months, the delay was a result of a requirement for additional information as well as advice regarding how to progress. Additionally, although the responses were not what Ms C wanted to hear, the Council responded promptly and to the concerns raised.
Agreed Action
For the fault that did occur, particularly the injustice that Ms C was not privy to the rationale behind the deprivation of assets decision, the Council would do the following;
Within one month:
- Apologise to Ms C for the delay to the conclusion of the safeguarding enquiry brought against her.
- Make a symbolic payment of £150 to Ms C to reflect the anxiety caused by its faults.
- Provide Ms C a reasoned decision based on the relevant law and guidance about the monetary gifts made by Mrs D and why the Council considers these gifts as a deprivation of capital and allow Ms C the opportunity to challenge the decision, as well as provide further evidence of the likely cost of the adaptation.
Within three months:
- Reflect on its safeguarding process to see if alterations are required.
- Ensure that staff provide adequate reasoning when concluding that someone has deprived themselves of assets.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The report only very briefly deals with the transaction itself, merely stating that Ms C carried out the renovations under the understanding that Mrs D would pay her back. It would always be a good reason for paying someone something if they had loaned money or agreed to fund something that was prudent and evidence based for the benefit of the assets owner. Nor does it mention whether this was something discussed at length, or if there was any conflict regarding the decision.
So it doesn’t deal with the question as to how much of this financial decision-making was down to Ms C as holder of a power of attorney, or actually down to Mrs D, the owner of the asset, during her decline.
This is one of many situations in which individuals have gifted money to family members, after potentially appreciating that it could help them to avoid paying for care for which they by then may know that they will probably need. But this was not explored by the LGSCO, and the conclusions of the Council do need to be evidence based. Not doing the thinking amounts to a flaw in process.
Where someone has granted a financial power of attorney, it can come into valid operational effect immediately whilst the donor still has capacity to revoke it and to agree in the meantime, if they choose, with the actual steps being taken by the done.
That is the default position, and we do not know from this report whether the mother was exhibiting indications of her deterioration at the point of the decision to move in to her daughter’s after renovations had been made; or indeed, how long after her formal diagnosis she could genuinely be regarded as losing capacity with regard to the extension costs.
We think that a deliberate deprivation of assets decision can be taken against the owner of the assets based on the actions of the holder of the power of attorney before or after the loss of capacity, because the attorney is the statutory agent of the individual; but clearly in that latter situation, the individual has a cause of action for abuse of a position of financial trust, if that decision is taken without that owner’s actual agreement. The trouble there is, though, who will take action against the attorney, if the attorney is the owner’s most trusted and loved offspring and would probably have wanted their daughter to have the money?
The Care Act gets around this problem by allowing the authority to carry on providing the care and paying for it, whilst pursuing the beneficiary of the money, itself, for the charges, and as an addition or alternative to pursuing the original money-owner’s estate.
We do find it remarkable that the daughter would not or could not prove how much she had spent on the extension, because bank statements ought to have been able to prove payments to a contractor, we would have thought.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Cheshire East Council (23 018 188) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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