The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision to charge Mr Y the full cost of his care, taking notional capital into account. There is insufficient evidence of fault in how the Council made its decision, so we cannot question the outcome.
The complaint
Mr X complained about the Council’s decision to charge his father (Mr Y) full fees for end of life care. He says Mr Y does not have the available funds the Council says he does, as money from the sale of a property is held in a trust. Mr X says the matter has caused him significant distress, which has negatively impacted his physical health. He wants the Council to amend its financial assessment to reduce Mr Y’s bill.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
The Care And Support Statutory Guidance says: There are some cases where a person may have tried to deliberately avoid paying for care and support costs through depriving themselves of assets. (8.28) In such cases, the local authority may either charge the person as if they still possessed the asset or, if the asset has been transferred to someone else, seek to recover the lost income from charges from that person. (8.28) Ultimately, the local authority may institute County Court proceedings to recover the debt. However, they should only use this power after other reasonable alternatives for recovering the debt have been exhausted. (8.30) The Council’s final complaint response clearly sets out the reasons it decided Mr Y had deprived himself of capital by putting the money from the sale of his house into a trust. It explained the trust was set up at a time when Mr Y had a reasonable expectation that he would need care. It says Mr X had also not given an alternate explanation for the existence of the trust. The Council has therefore included this notional capital in its assessment of Mr Y’s finances and charged him as if he possessed the money from the sale of his house.
The Ombudsman is not an appeal body. We cannot consider the circumstances and decide, in place of the Council, whether the money in the trust should be included in Mr Y’s finances for assessment purposes. Our role is to decide whether there is fault in how the Council has made its decision. In this case, there is insufficient evidence of fault, as the Council’s final complaint response shows it has considered the relevant matters. It has set out the reasons for its decision. In the circumstances, we cannot criticise the decision it came to.
It is open to Mr X to seek legal advice and defend his position in court, should the Council seek to recover the costs via the County Court. Only the courts can decide whether someone owes a debt or not.
Final decision
We will not investigate Mr X’s complaint because there is insufficient evidence of how the Council made its decision.
Investigator's decision on behalf of the Ombudsman