Decision date: 18/12/19
In 2007, Mr D and his brother accepted the grant of an Enduring Power of Attorney (EPA) from their mother, Mrs J. She lived with her husband and suffered from a number of health problems, including dementia.
In 2017, Mrs J was assessed in hospital as not having the mental capacity to decide where she should live or what care she should receive. She was discharged in September with a package including 24 hour a day home care. There is no detail in the report as to how long that degree of incapacity may have affected her, unfortunately.
In the EPA there was a restriction on gifts, which is prudent, in any grant of PoA, and indicates that there was no intention at the time of the grant that there should be any opportunity for either of the attorneys to help themselves to assets.
Mr D had declared a bank account on the assessment form that was a joint account between his mother and her husband. The normal rule is that half each would be assumed for financial assessment. He however stated on the assessment form that his father had agreed to give his (Mr D’s) brother £45,000 to pay to extend the leasehold interest on his property and that that money was in the account and that that meant that the account was effectively ALL his father’s money, not shared in half or even a notional half.
The Council undertook a financial assessment of Mrs J and wrote to Mr D on 12 October 2017 to declare that it felt that there had been a deprivation of assets.
The Council considered 50% of the savings on the joint account and also included a further £19,500 in their assessment of Mrs J’s capital assets in respect of the gift to the brother. This took her above the upper threshold, rendering her responsible for the full cost of her care.
Mr D explained that Mr J had agreed to give money to his brother in early 2016 although there was no written evidence of that intention, but the legal process of extending the lease was taking time. The money for this was coming from funds that Mr J had put into the savings account, and treating it as spoken for was not an attempt to deprive Mrs J of her assets.
After being disputed by Mr D, the case was delegated to the Council’s fraud team in January 2018. However, there was no evidence of any action within this investigation until a meeting was held between Mr D and the Council in April. Mr D claimed that the manager at the meeting assured him that as far as he was concerned, there had not been a deprivation of assets.
Then in May, the Council referred Mr D to the Office of the Public Guardian (OPG) who deal with and investigate complaints about the actions of attorneys. The OPG confirmed to the Council in October 2018 that it was taking no further action with the matter.
Mr D complained to the Council in December 2018. It responded in February 2019 acknowledging that the investigation delays had been due to procedural problems. It apologised to him and claimed to have reviewed its processes since. Mr D then complained to the Ombudsman as he felt the Council had ignored his questions and refused to progress the complaint to Stage 2.
What was found
The Council eventually considered foreseeability and intention and concluded there had been no deprivation of assets.
However, there was fault in the Council’s decision in its letter of 12 October 2017 that there had been a deprivation of assets. Councils must consider the questions in the Guidance before they can determine whether there has been deprivation, that is, whether care needs and costs could have been foreseen at the time the disposal was agreed and whether the disposal had been deliberate to avoid care charges. In October 2017, the Council had not considered these points. It was therefore fault to say there had been deprivation.
The Royal Borough of Kingston upon Thames Council was found at fault by the Ombudsman for deciding that there had been a deprivation of assets in October 2017 before it had had regard to the requirements of the Care and Support Statutory Guidance.
The Council was also at fault for the length of time it took to complete the investigation, when it eventually decided that there had been no deprivation of assets. This fault amounted to an injustice for Mr D.
Mr D also complained about the malicious way in which he perceived he had been treated by the Council. There was no evidence to support his claims of malice and the Council was found not at fault for referring him to the OPG, failing to answer questions in his complaint or for refusing to proceed his complaint to Stage 2, as it completed these actions in line with the relevant guidance and policies.
The Council has agreed to write to Mr D apologising for the injustice it has caused him in regard to the avoidable distress caused by delays in the investigation. It will pay him £500 to acknowledge this and the time and trouble he was subjected to.
Points for the public and for council officers
It’s not possible from this report to be clear about the reasons why the FATHER putting money INTO the joint savings account and then that being earmarked for a gift to the son was regarded as deliberate deprivation of assets by the MOTHER. The actions of the attorneys could be counted as the actions of the person, and the LGO will be willing to impute the actions of attorneys if the person still has capacity, but less willing, if the person does not, at the time. However this was not action by the attorneys – the money had been put in the account by the father.
If it was indeed traceable that the father had offered the son £45K of his own money but the funds were just ‘resting’ in the joint account pending their being needed by the son, then the normal assumption that jointly held assets should be split down the middle would be rebutted.
But nobody can tell because of the way in which the investigator has left things unsaid, unfortunately.
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The full Local Government Ombudsman report on the actions of The Royal Borough of Kingston upon Thames Council can be found here: