Quite simply – by the contracting council.
An argument about notional capital does not prevent the duty to meet the need if the person is otherwise eligible. If the council has taken on a contractual responsibility to meet the needs then it is bound by that contract to pay the fees.
A person should not be left in a self funding contract once they have proved they have got less than £23250.
The council should take over. It has remedies it can use against any third party or the person thought to have deliberately deprived themselves of their capital.
The ombudsman would back you on that. Or you could write to the council’s Monitoring Officer who is in charge of governance.
What I would say is this though: the references to notional capital in the Care and Support Guidance and to deprivation of assets very carefully avoid discussing whether the person should be being cared for by the council. The duty depends on the person’s financial situation. If it were a home care case, the person still has a right to be cared for; whereas if it was a CARE HOME case, it is arguable – it’s been left up in the air – but arguable that the person is to be treated as if they still have the asset, that counts as notional capital, and thus that they ARE above the threshold and thus DO NOT get to call on the council to meet the needs, even if assessed as eligible with regard to needs.
I do not think that councils take that line, because if they did, there would be people suffering harm, when they have no other liquid assets with which to pay; and they’d be challenged much more on their finding that someone has deliberately deprived themselves of their assets, than they are, but I think it’s still legally possible to just say no.