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Book
Paying For Residential Care
A Guide For Private Client Practitioners
Published: 2021
Pages: 608
eBook: 9781787426641
Paying For Residential Care: A Guide For Private Client Practitioners is a follow-up to the bestselling Coldrick on Care Home Fees. This book provides both continuity and significant change in this complex subject.
Paying For Residential Care: A Guide For Private Client Practitioners is authored by Austin Thornton, co-author of the previous editions of this title. The new edition is a complete rewrite, which has been necessitated by the introduction of the Care Act 2014 and the repeal of the previous law. In a departure from the second edition, the book includes a full section on the legal basis for NHS continuing care eligibility and how to pursue appeals. It provides comprehensive cover of the Care and Support (Charging and Assessment of Resources) Regulations 2014, and will assist advisors in risk assessing the use of family trusts.
It is hoped that this work will allow those advisors who are prepared to put in the work necessary to learn the material to make a decent job of arguing with councils and the NHS on the range of topics that are covered. The ultimate aim of this book is therefore to assist the public by enabling lawyers and other advisors to assist them.
It is hoped that this work will allow those advisors who are prepared to put in the work necessary to learn the material to make a decent job of arguing with councils and the NHS on the range of topics that are covered. The ultimate aim of this book is therefore to assist the public by enabling lawyers and other advisors to assist them.
Table of Contents
| Cover | Cover | |
|---|---|---|
| Title page | i | |
| Copyright page | ii | |
| Contents | iii | |
| Acknowledgements | xi | |
| Introduction to the third edition | xiii | |
| Limitations | xiv | |
| References | xv | |
| About the author | xvii | |
| Useful information | xix | |
| Chronology of Regulations made under Part 1 of the Care Act 2014 | xix | |
| Table of Cases | xxii | |
| Local government ombudsman complaints | xxix | |
| Commissioners’ decisions | xxix | |
| Abbreviations | xxxv | |
| Chapter 1: Residential care provision by social service departments | 1 | |
| The scope of residential care provision | 1 | |
| What is a care home? | 3 | |
| Sources of law | 5 | |
| The Care Act 2014 – overview | 10 | |
| Assessment, eligibility and care planning | 12 | |
| Ordinary residence and the responsible authorities | 16 | |
| Responsibility for NHS patients | 24 | |
| Statutory advocacy | 26 | |
| Duties and powers and to meet eligible needs | 37 | |
| Who commissions residential care? | 37 | |
| Discretionary powers to provide residential care | 42 | |
| Exceptions | 43 | |
| Exception for those subject to immigration control | 43 | |
| Choice – do I have to go into a care home?120 | 49 | |
| Paying for care and deprivations of liberty | 60 | |
| The care planning process | 62 | |
| Personal budgets, choice of accommodation and top-ups | 65 | |
| Arrangements for payment of a top-up | 78 | |
| After-care for former mental hospital patients | 79 | |
| Contracting with a care home | 81 | |
| Statutory responsibilities to self-funding residents facing eviction | 94 | |
| Chapter 2: Protecting the home | 103 | |
| Care cost capping – its genesis and its demise | 103 | |
| Care capping – what does the Act provide? | 108 | |
| Deferred payments | 114 | |
| What is a deferred payment? | 117 | |
| The Care Act provisions | 117 | |
| Mandatory and discretionary deferred payments | 118 | |
| The amounts that can be deferred | 121 | |
| The equity limit | 122 | |
| Sustainability | 123 | |
| Adequate security | 126 | |
| Interest | 127 | |
| Repayment | 128 | |
| Administration costs | 128 | |
| Terms and conditions | 129 | |
| Looking after the property | 130 | |
| Information requirements | 131 | |
| Ongoing obligations | 133 | |
| The main or only home | 133 | |
| The meaning of ‘premises’ (occupied as their main or only home) | 136 | |
| Premises that may be covered by the disregard | 137 | |
| Chapter 3: Financial assessment | 141 | |
| Means testing comes after assessment | 141 | |
| Paying only what you can afford | 142 | |
| The obligation for the authority to carry out – and the adult to cooperate with – a financial assessment | 146 | |
| The minimum income condition and its relation to the upper capital limit | 151 | |
| Short-term residents and temporary residents | 152 | |
| The status of the partner’s resources | 154 | |
| Creutzfeldt-Jakob disease | 155 | |
| Chapter 4: The assessment of income | 157 | |
| What is income? | 157 | |
| Calculation of income | 157 | |
| Treatment of earnings | 157 | |
| Capital to be treated as income | 159 | |
| Tariff income | 161 | |
| Disregarded income | 162 | |
| Chapter 5: The assessment of capital | 179 | |
| What is capital? | 179 | |
| The upper financial limit for capital | 184 | |
| Full paying residents who are close to the capital limit | 186 | |
| Chose in action | 188 | |
| Cheques | 188 | |
| Money held by solicitors | 188 | |
| Chapter 6: Capital disregards | 189 | |
| Introduction | 189 | |
| Disregards do not need to be claimed | 189 | |
| The upper and lower capital limits | 190 | |
| The disregards relating to the resident’s dwelling | 191 | |
| Moving house – sale, purchase, adaptation and gaining access Premises acquired for occupation | 198 | |
| The qualifying relative disregards | 204 | |
| Premises occupied by a partner or family | 209 | |
| Property disregards for permanent residents intending to resume independent living | 212 | |
| The discretionary disregard of premises occupied by a third party | 213 | |
| The resident’s business interests | 218 | |
| Life policies and investment bonds | 229 | |
| The value of the right to receive any outstanding capital instalments | 230 | |
| The resident’s future interest in any property | 231 | |
| Tenanted property and the value of future payments of rent | 232 | |
| Currency conversion costs | 233 | |
| Certain payments from certain approved trust funds | 233 | |
| Non-monetary charitable gifts | 236 | |
| Pensions | 237 | |
| Arrears of specified payments of benefits and tax credits | 237 | |
| Arrears payable to widows, widowers or surviving civil partners | 238 | |
| Certain deposits with housing associations | 238 | |
| Personal possessions | 239 | |
| Static caravans, chalets, houseboats and beach huts | 239 | |
| The right to receive an annuity and its surrender value | 245 | |
| Funds derived from an award for personal injuries to the resident | 246 | |
| The capital value of the right to receive a stream of income | 251 | |
| Social fund payments | 252 | |
| Refunds of buy to let mortgage tax relief | 252 | |
| Capital treated as income | 252 | |
| Certain compensatory and other welfare receipts | 253 | |
| Payments to former WWII prisoners of the Japanese | 253 | |
| Compensation payments for sufferers of variant Creutzfeldt-Jakob disease and their relatives | 254 | |
| Age-related payments | 254 | |
| Other disregards | 255 | |
| A note on funeral plan payments | 255 | |
| Chapter 7: Income and capital available upon application | 257 | |
| What is income or capital available upon application? | 257 | |
| Contingent interests | 259 | |
| Benefits available upon application | 260 | |
| Third party payments | 261 | |
| Notional income and capital in private pensions | 261 | |
| Chapter 8: Deprivation of income and capital | 265 | |
| False statements | 265 | |
| Asset adjustment | 268 | |
| Sources of law | 269 | |
| Diminishing notional capital | 270 | |
| An analysis of Regulations 17(2) and 22(2) | 271 | |
| The statutory guidance | 297 | |
| Investigation and proof | 298 | |
| Deprivation must make a difference to the means assessment | 299 | |
| Reasonableness | 300 | |
| The end of discretion | 301 | |
| Enforcement | 301 | |
| Use of existing capital to pay fees | 302 | |
| Can a deprivation be traced back through a number of transactions? | 302 | |
| Can notional capital be subject to a statutory disregard? | 302 | |
| Payment of debts | 305 | |
| The rule on diminishing notional capital in deprivation cases | 309 | |
| Deprivation as a result of the purchase of personal possessions | 312 | |
| Chapter 9: The valuation of assessable capital | 313 | |
| Introduction | 313 | |
| An easy way to save time and effort | 313 | |
| Capital is not assessed net of debt | 313 | |
| Current market value | 314 | |
| The current market value of land | 321 | |
| Matters arising upon sale of land | 331 | |
| Valuation of the former matrimonial home | 335 | |
| Specific cases | 338 | |
| Deductions from value | 344 | |
| Capital held abroad | 350 | |
| Third party interests in property | 351 | |
| Chapter 10: Care fees avoidance – making gifts and creating trusts | 361 | |
| Introduction | 361 | |
| Giving advice | 363 | |
| The Law Society Practice Direction on Gifting 2017 | 364 | |
| The risks of transferring an asset | 373 | |
| Alternatives | 377 | |
| Severance of jointly held assets | 381 | |
| Trusts | 386 | |
| Absolute and discretionary trusts | 390 | |
| Avoiding the pitfalls of outright gifts | 391 | |
| Are they effective? | 392 | |
| Can a local authority pressure trustees? | 394 | |
| Trustee investment powers | 396 | |
| Pressure on trustees to distribute capital | 397 | |
| Sham trusts | 398 | |
| Cases involving allegations of mental incapacity | 399 | |
| Cases involving fraud and undue influence | 400 | |
| The use of Inheritance (Provision for Family and Dependents) Act 1975 (IPFDA) | 401 | |
| A trust as a provider of ‘top-up’ care fees | 402 | |
| Can a local authority enforce a care fees debt against trustees? | 402 | |
| Personal injury trusts | 402 | |
| Chapter 11: NHS continuing care | 405 | |
| The health and social care divide | 406 | |
| Reorganisations | 408 | |
| Caring for the future | 414 | |
| Summary of the history | 425 | |
| Developments after 1993 | 426 | |
| Health Service Guidance 95(8) | 427 | |
| Coughlan v. North and East Devon Health Authority | 431 | |
| Funded nursing care | 439 | |
| HSC 2001/015: LAC (2001)18 | 443 | |
| The Wigan case | 445 | |
| The Grogan case | 445 | |
| The statutory test | 448 | |
| The quantity test | 449 | |
| The quality test | 452 | |
| The impact of the Care Act 2014 | 455 | |
| The NHS Continuing Care Framework: How is it meant to work? | 460 | |
| Application of the quantity and quality tests to advanced dementia patients | 464 | |
| The assessment process – regulatory requirements Who is entitled to an assessment? | 466 | |
| Can a full assessment be delegated? | 467 | |
| The checklist | 467 | |
| Timescales | 468 | |
| NHSCHC assessment must pre-date an FNC assessment | 469 | |
| The multi-disciplinary team | 469 | |
| Hospital discharge procedures | 471 | |
| The Fast Track pathway | 472 | |
| NHS continuing care case reviews | 478 | |
| Remedies | 482 | |
| Chapter 12: Remedies | 489 | |
| Complaints procedures | 491 | |
| The 2009 Regulations | 500 | |
| The state of the NHS complaints procedure | 506 | |
| The complaints system in England and Article 6 of the Human Rights Act 1998 | 510 | |
| The Care Act 2014 | 512 | |
| The monitoring officer | 512 | |
| A complaint to the Secretary of State | 513 | |
| Making a complaint to the Local Government Ombudsman | 514 | |
| Complaints to the Parliamentary and Health Service Ombudsman (PHSO) | 521 | |
| Judicial review | 525 | |
| First step – complaints procedure or judicial review pre-action protocol? | 527 | |
| Second step – Ombudsmen or judicial review | 530 | |
| Reasons challenges | 538 | |
| Land registry disputes on registered charges | 539 | |
| Complaints against independent providers of residential care | 540 | |
| The duty of candour | 541 | |
| The NHS constitution | 541 | |
| Advocacy services | 541 | |
| A conclusion on access to effective remedies in England | 543 | |
| Chapter 13: Methods of enforcement available to local authorities | 547 | |
| Powers under the Care Act | 547 | |
| Recovery of resources from the recipients of gifts | 551 | |
| The Insolvency Act 1986 – recovery of gifts from the recipients and trustees | 555 | |
| Transactions at an undervalue – Insolvency Act 1986, sections 339–342 | 556 | |
| Transactions defrauding creditors – Part 16 of the Insolvency Act 1986 | 563 | |
| General litigation risk | 569 | |
| Local authorities as debt collectors | 569 |
Austin Thornton began his legal career in the advice sector providing debt and welfare benefits advice at Huddersfield Citizens Advice Bureau in the 1980s and early 1990s. He qualified as a solicitor in 1995, working for the GLP group in Salford. He provided a legal aid social welfare law service in the areas of debt, family crime and housing law and in the latter area was legal aid franchise supervisor. During this period Austin also worked in personal injury law and left GLP to specialise in this area from 2000 to 2009, during which period he was promoted to partner at a major northern firm. Wishing to return to social welfare law, Austin joined the Sheffield office of Wrigleys Solicitors LLP in 2010 where he specialises in community care and Court of Protection work. He has provided expert witness reports with regard to the impact of statutory funding on damages recovery in personal injury cases and is often consulted by other solicitors relating to community care issues affecting their cases. Austin is a regular speaker, providing both training and talks in his areas of interest and has published a number of articles in Private Client Adviser, Journal of Social Care and Neurodisability and Journal of Personal Injury Law. He is a legal adviser to Sheffield Carers Centre where he runs a free legal clinic. Austin is a director of Wrigleys Trustees Ltd, a trust corporation appointed as Court of Protection as deputy for property and affairs. His particular role as deputy is to deal with care issues for clients, advising on the management of money for care, liaising with statutory services and resolving disputes over the provision of care.