The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint, made on behalf of his mother Mrs X and his grandmother Mrs Y, about the Council’s intention to treat as notional capital Mrs Y’s financial interest in her and her husband Mr Y’s house. The Council has not implemented its decision because the relevant circumstances not occurred. There is not enough injustice caused to the family by a decision the Council cannot currently implement to warrant investigation.
The complaint
Mr X is Mrs X’s son and Mrs Y’s grandson. Mrs Y is in a care home. Her husband Mr Y currently lives in a house they jointly own. They placed the house in trust in 2019, almost two years before Mrs Y needed to go into the care home.
Mr X complains the Council wrongly assumed that Disability Living Allowance (DLA) Mrs Y received for many years meant she should have expected to need a care home placement at the time she and Mr Y put their house into the trust.
Mr X says the Council’s decision has caused the family extreme mental, physical, emotional and financial stress. He says the family has been upset that Mr and Mrs Y have been accused of acting illegally to deprive themselves of an asset. Mr X wants the Council to reconsider its decision about Mr and Mrs Y’s trust and the deprivation of assets issue.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information from Mr X, and the Ombudsman’s Assessment Code.
My assessment
The Council decided in 2022 that: Mr and Mrs Y’s property would be disregarded when determining Mrs Y’s care fees while Mr Y remained living there; but if in future Mr Y needs residential care himself, or if he dies before Mrs Y, then it would include Mrs Y’s share of the property in her care fee calculations.
It appears the Council was satisfied the main or sole purpose of the trust created by Mr and Mrs Y in 2020 was to deprive themselves of their property to avoid it being available for future care fees. Mr X does not agree with the Council’s position. He considers the family should not lose part of the assets built up by Mr and Mrs Y, and it was their expressed wish that the family should be able to inherit the property.
I recognise decision b) causes a future concern to Mr X and his family. However, there is not enough injustice to them from this Council decision at this time to warrant investigation. I say this because the circumstances required before the Council acts on decision b) have not yet happened and they may not happen. The Council has not implemented that decision and the circumstances remain as set out in decision a). So there has been no significant financial or other injustice caused to Mr X or his family from decision b) which justifies us investigating. We cannot consider potential injustices from events which have not happened. Any stress from the decision the Council has not been acted on is not sufficient to warrant an investigation.
We also cannot say whether the Council will act in line with decision b) in the future. It may make a different decision at the time, or relevant national government law or guidance on care charges may change in the meantime to require the Council to act differently.
If Mr Y dies before Mrs Y or needs his own care placement, this would require the Council to make a new decision to put in place its approach to the calculation of Mrs Y’s financial assessments. If Mr X and his family disagree with this new decision, that would require a new complaint to the Council and, if dissatisfied with the outcome, to the Ombudsman.
Final decision
We will not investigate Mr X’s complaint because there is not enough injustice caused to Mr X and his family by a decision the Council cannot currently implement to warrant us investigating.
Investigator's decision on behalf of the Ombudsman