Decision Date: 19 February 2025
Summary
Mrs Y transferred ownership of her property to her two sons Mr X and Mr Z in 2015. The LGSCO declined to investigate Mr X’s complaint against Dudley Council’s decision that the transfer was deliberate deprivation of assets. The LGSCO found insufficient evidence that there was procedural fault.
What happened
Mrs Y had received support and assistance from Dudley Council since 2012. The Council’s Adult Social Care Team was familiar with Mrs Y.
In 2015, Mrs Y transferred ownership of the property she lived in to her two sons Mr X and Mr Z.
In March 2024, the Council informed Mr X and Mr Z that it would treat the value of this property as notional capital following the transfer in ownership to them. The Council believed that a deprivation of assets had occurred whereby a person deliberately disposes of their assets to reduce the charges they are required to pay towards their care.
The Council considered Mr X’s appeal against its decision.
Mr X and Mr Z explained that Mrs Y transferred the ownership of the property to them because she was unable to maintain the property. They also explained that the transfer of the property was due to their father’s death.
The Council was not persuaded that the transfer of ownership was necessary to allow Mrs Y’s family to maintain the property. It was also unpersuaded that the transfer was connected to the father’s death as this had occurred 20 years prior. The Council noted the support Mrs Y received from the Council and concluded that she had a reasonable expectation of needing to pay charges for the cost of her care needs.
The Council maintained its decision that there had been a deliberate deprivation of assets.
What was found
The LGSCO noted that the Council considered the relevant statutory test as elaborated on in case law. It also noted that the Council gave Mr X access to an appeal process.
The LGSCO decided not to investigate Mr X’s complaint because there was insufficient evidence of procedural fault.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The unusual thing about this report is the very long time before the decision that the transfer was made – 9 years before the issue of charging for council funded care arose.
We think that the family may not have regarded care for their mother in a care home as necessary until that time, which does give rise to the question, we think, how much money had the mother still owned, in 2015, when she made the gift of the house?
Whilst the concept of deliberate deprivation of assets is relevant for ANY social care charge – ie home care OR residential care, the transfer of a property is only relevant when one is needing care in a care home, because if one is having care at home, one’s property is ignored in any event.
So we think that it is not inconceivable that a person who is in receipt of social care 9 years before a care home is needed, is not thinking of avoiding care charges when transferring a house – it is more obviously and objectively inheritance tax planning, to our minds.
We are bearing in mind the very strict approach that was taken in Beeson: the Administrative Court held that the council’s decision there was based on a legal misdirection in that it had failed to apply a subjective test in deciding the purpose for which Mr Beeson had gifted his house to his son.
We think that this direction of travel comes close to forgetting the case law on deprivation of assets regarding the standard of proof regarding subjective intentionality, when there is more than one reason for the gift, and one could well have been inheritance tax planning, given that this woman had survived for 7 further years after giving the property away.
However, it has to be acknowledged that the maintenance of the property could have been organised through a power of attorney rather than necessitating a property transfer.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Dudley Metropolitan Borough Council (24 012 658) report.
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