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By Nicolae Trofin

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Adult Care Complaints: a Case Study

Despite the Care Act’s replacement of the CRAG rules (Charging for Residential Accommodation Guide), the practice of local authorities can still vary from county to county, at least as far as care fees are concerned. This is perhaps most evident where the rules regarding “deliberate deprivation” of assets raise their head, with the result being that it isn’t always possible to predict whether a given disposal of assets will be classed as being an act of deliberate deprivation.

A Case

The recipient of care in this case – anonymised in the Ombudsman’s report as Mrs Y – had suffered a stroke in 2007 and subsequently moved into residential care. Her assets at the time were sufficient to warrant self-funding for the resultant care fees, and included a residential property which was duly sold to raise the necessary funds. By 2015, however, Mrs Y’s pool of assets had fallen below the £23,500 threshold at which estates become eligible for local authority support.

To their credit, this financial support was quickly forthcoming from the local authority. However, once the council got round to performing a fuller assessment of the resident’s financial situation, Mrs Y’s daughter disclosed that she and other family members had been receiving annual cash gifts from her mother from 2007 onwards. This is perhaps enough information to set alarm bells ringing for many readers, and it certainly did for the local authority, who reached their decision and informed Mrs Y’s daughter that deliberate deprivation of assets had therefore taken place.

The Local Authority’s Conclusion

In circumstances such as these, the burden of proof lies with the local authority. As it so happened, Mrs Y had a history of gifting between £20 and £30 for birthdays and Christmas long before she was compelled to enter care in 2007. The local authority noted that these gifts increased in value once she had moved into care, with annual amounts given to her children and grandchildren ranging between £250 and £3,000 during this time. Taking this increased gifting as clear evidence of deprivation, the council demanded repayment of its contribution to care fees, totalling almost £7,000.

The Ombudsman’s Report

What happened next demonstrates how the concept of deliberate deprivation isn’t as clear as we might imagine. Going into care does not and should not remove the existing rights of the individual in question. As was noted by the Local Government and Social Care Ombudsman, Michael King, the resident was under no obligation to set aside all her money for the purposes of care fees once she moved into care: “While I appreciate councils need to make difficult, nuanced decisions about whether people have deliberately reduced their assets, the guidance does state people with care

needs are free to spend their money as they see fit”. Indeed, as page four of the report notes, “people should be […] free to spend the money they have saved as they wish – it is their money after all”.

The fact that the local authority changed its figures when challenged by the Ombudsman certainly got them off to a bad start: the report advises, rather curtly, that “the Council should be ensuring it uses actual figures in any financial assessment”. Even beyond this obvious failing, however, the Ombudsman was unconvinced that an increase in gift amounts, in itself, was sufficient evidence that deliberate deprivation had occurred.

The report found that the council had neither completed a complete assessment of Mrs Y’s finances, nor “provided any other evidence [than the increased gift values] to show how it considered the gifts were made with the intention of avoiding care charges”.

As a result, the authority in question has been advised to pay £250 to Mrs Y for distress caused and to revise both its initial, botched assessment of Mrs Y’s finances and its current procedures for ascertaining whether deliberate deprivation has occurred.

Case like this remind us that, while there are standardised requirements and guidelines defining how local authorities should proceed in such cases, in practice, there is still of course room for human error.

Had Mrs Y’s daughter not seen fit to complain to the local Ombudsman then it is likely that the authority’s decision would have gone unchallenged. Certainly, those looking after relatives in care need to tread carefully, and to recognise that the judgement of local councils is not always final; nor is it always fair.

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This message was added on Wednesday 20th February 2019

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