Council told by Ombudsman to reconsider decision regarding alleged intentional deprivation of assets

The Local Government and Social Care Ombudsman (LGSCO) has found fault with the way that Knowsley Metropolitan Borough Council reached its decision about an intentional deprivation of assets in relation to care home charges.

The Ombudsman found the council “failed to properly explain”, applying Annex E of the Care and Support statutory guidance, why it considered the transfer of an elderly woman’s home to her children was a “deliberate deprivation” of her capital.

Outlining the background to the complaint, the Ombudsman noted that Mrs Y, the mother of the complainant, now has advanced dementia. Since December 2018, Mrs X, and her siblings (Mr N and Mr O) have had Power of Attorney (POA) for Mrs Y’s health and finances.

In late 2014, Mrs Y decided to transfer her home to her three children. Mrs Y and her new partner intended to marry. The new partner had done the same with his children, as the couple wanted to avoid future inheritance issues arising between them and their children, said the Ombudsman.

In early February 2015, Mrs Y started the legal process with a solicitor. The following day she suffered a fall and was hospitalised.

In April 2015, the council completed a care and support plan for Mrs Y which included four home visits to help with food, medication, and personal care. It financially assessed Mrs X and decided she did not have to make a personal contribution towards her care costs.

In early 2020, the transferred property was sold, and the sale proceeds were shared between Mrs X and her two siblings.

In October 2021, Mrs Y fell and was hospitalised again. Following treatment, in late October Mrs Y was discharged to a permanent nursing home with 24-hour care.

In late April 2022, the council issued a financial assessment outcome letter, to say it was of the view that Mrs Y had intentionally deprived herself of assets and was liable for her care charges since November 2021.

Outlining the basis of the complaint, the report stated that Mrs X complained on behalf of her mother (Mrs Y). She said the council:

a) did not inform her about Mrs Y’s care charges or confirm her agreement to paying before placing Mrs Y in a care home; 

b) did not properly consider all the relevant information before deciding Mrs Y had intentionally deprived herself of assets and was liable for the full costs of her care.

Further, Mrs X complained the council’s decision-making had left Mrs Y in debt and caused Mrs X and her family “avoidable distress” about repayment.

Considering the first complaint, the Ombudsman said: “The records show Mrs Y’s transfer to the nursing home (October 2021) was arranged by the hospital. Mrs Y’s discharge assessment confirms the hospital contacted Mr N. This was because the council had Mr N listed as Mrs Y’s main attorney contact.

“The assessment says Mr N agreed with Mrs Y’s transfer, the weekly cost and understood it would be reviewed by the council after a week. The council’s actions at this point were consistent with the CSSG guidance as set out above at paragraph 9 (b) and (c), as it consulted one of Mrs Y’s attorneys. I do not find any fault in relation to this aspect of Mrs X’s complaint.”

In mid-November 2021 the council reviewed Mrs Y’s care and support plan.

The Ombudsman noted that the plan “confirms” the council liaised with both Mrs X and Mr N, who agreed Mrs Y should remain at the nursing home.

Mrs X told the watchdog that they agreed with the location, but were not made aware of, or agreed to pay any further costs.

The report said: “However, the plan confirms the contents of Mrs Y’s review (including the weekly care home charges) were confirmed with Mrs Y’s attorneys. The records do not show if the council provided or posted a copy to Mrs X or any of the other attorneys. The failure to provide a copy is inconsistent with the Care and Support statutory guidance (CSSG) guidance and is fault. However, I do not consider this meant Mr N or Mrs X were unaware of the on-going costs.”

The Ombudsman did not find that the council failed to make Mrs Y’s attorneys aware of Mrs Y’s care charges, or place her in a care home without their agreement.

Turning to the second complaint, the watchdog considered the steps the council took when deciding if Mrs Y had intentionally deprived herself of capital to avoid paying care charges from 2015.

The Ombudsman said: “In my view the council has not clearly evidenced it considered the matters in Annex E Paragraph 11 of CSSG.

“[…] The Council has not properly explained, how it reached the conclusion in 2022, that a significant motivation behind the transfer of Mrs Y’s property in 2015, was to avoid care charges, as opposed to resolving potential inheritance issues which could arise when she married her new partner. Had the Council considered these matters, I would expect it to have set them out in its response to my enquiries.

“I would also expect the Council to have specifically explored the timing of Mrs Y’s disposal with her or one of her attorneys (Mr N or Mrs X) in more detail before making its decision. There is no evidence that it did. This is not in line with our Principles of Good Administrative practice, which expect a clear contemporaneous record of the decision.”

The Ombudsman concluded that the council's decision was taken without all the relevant information and discussion with Mrs Y’s attorneys – which caused Mrs X uncertainty and frustration about whether the council had reached the correct outcome.

To remedy the injustice caused, the council was recommended to:

• assign a different officer to reconsider the decision to treat the transfer of value of Mrs Y’s property as notional capital, applying the guidance in Paragraphs 10 and 11 of Annex E of Care and Support Statutory Guidance.
• apologise to Mrs X for any avoidable uncertainty and frustration caused by the council's failure to consider the transfer of value of Mrs Y's property in line with Annexe E and the Care and Support Statutory Guidance.

A Knowsley Council spokesperson said: “This case remains open. The Ombudsman investigation resulted in two agreed actions. The first was to assign a different officer to review the case and reconsider the decision to treat the transfer of the value of Mrs Y’s property as notional capital. The second was to apologise to Mrs X for any avoidable uncertainty and frustration caused. An apology was issued to Mrs X 14 May 2024 with a commitment to review the case and provide Mrs X with a response by 15 June 2024.”

Lottie Winson