| |
CARE HOME FEES - WHO PAYS?
July 16, 2009, 8:19am |
When a person requires care home accommodation, an assessment of their finances is required in order to determine how the accommodation will be paid for. With the costs of care home accommodation ranging from £400 to £800 per week it is not surprising that the rules relating to charging cause much controversy.
The following discusses the rules in Wales for charging for care home accommodation. Although similar, there are separate rules relating to charging for care home accommodation in England.
1. The Local Authority
At present, if a resident has capital over £22,000 they are considered to be ‘self funding.’ This means that, if they are not eligible to receive NHS Continuing care or NHS Funded nursing care (see below), they will have to pay the full cost of their care home fees. There are complex rules relating to what capital is taken into account by the Local Authority in order to assess whether a resident is self-funding. Some types of capital are disregarded. For example, a property will not be taken into account for the first twelve weeks that a person is in a Home. This means that, where a person’s main asset is their property and their savings are under £22,000, he or she will not be ‘self funding’ for the first twelve weeks. Furthermore, a property continues to be disregarded if it is occupied by:
1. the resident’s partner; or
2. a relative who is aged 60 or over; or
3. a relative aged 16 or under and a child whom the resident is liable to maintain; or
4. a relative who is incapacitated.
Even if a person is self-funding, there is a still a duty on the Local Authority to provide advice, guidance and assistance on the type of care they require and services available.
If a person’s capital is between £19,000 and £22,000 their income is taken into account to assess their contribution to the cost of the care and they are also treated as if they receive £1 for every £250 (or part of £250) of capital over £19,000. This is called a ‘tariff income.’ For example, if a resident has £20,000 capital, £19,000 is completely disregarded but £4.00 is taken into account as a tariff income. £4.00 will be added to any other income the person receives in order to determine how much they will contribute to the cost of their care. (The figure of £19,000 is due to increase to £20,750 on 6 April 2009 but there is no intention to increase the upper capital limit of £22,000 in April).
If a person has capital amounting to less than £19,000 then their income (apart from a small personal allowance) is paid towards the cost of their care fees and the Local Authority pay the remaining cost. Although this would normally mean that the Local Authority funds the majority of the care home fees, the resident’s wishes and preferences over choice of accommodation should still be taken into account as long as:
1. the accommodation appears to the Authority to be suitable; and
2. the cost of making the financial arrangements would not require the Authority to pay more than it would usually expect to pay having regard to the assessed needs.
Where a person’s preferred accommodation is more expensive than the accommodation proposed by the Authority then he or she may require the Authority to provide that accommodation subject to a third party (often a relative) paying the difference. The ‘top-up’ is the difference between the cost which the Authority would usually have expected to pay for someone with the resident’s assessed need and the full standard rate of the accommodation that the resident prefers. However, the Authority must not set arbitrary limits on the amount they would pay to the care home and relatives should not routinely be required to make up the difference between what the Authority will pay and the actual cost of the Home.
2. The NHS
There is an overlap between the duty of the Local Authority to provide care home accommodation and the duty of the NHS.
The NHS has certain duties to persons who are the responsibility of the Local Authority or who are self funding. It is the responsibility of the NHS to provide, where necessary, community health services to residents of Local Authority and independent residential care homes on the same basis as for those who live in their own home. For example, the provision of district nurses is paid for by the NHS.
The NHS also has a duty to pay for the cost of providing nursing care by a registered nurse in a nursing home. Consequently, in Wales, every nursing home resident should receive the same contribution towards their fees from the NHS regardless of how much capital they have (in Wales the contribution is currently £117.66 per week but may be increasing to £119.66 shortly). The NHS pays this contribution directly to the care home and this is known as NHS Funded Nursing care.
Furthermore, where a person’s primary need is for healthcare, there is a duty on the NHS to accommodate that person in a care home under Continuing NHS healthcare guidelines. If a resident is assessed as requiring NHS Continuing Care then the full cost of their care home fees will be paid by the NHS and this does not depend on whether or not he or she has capital over £22,000.
Whether a person is eligible for NHS Continuing healthcare can often be the subject of debate. The Local Health Boards have assessed residents as only requiring NHS funded care (i.e. the £117.66 per week contribution from the NHS) rather than requiring continuing NHS healthcare. Subsequent independent reviews have then assessed the same person as actually having continuing healthcare needs so that the NHS should have paid the full cost of the care home fees rather than the Local Authority and/or resident. The NHS should then reimburse the resident for the payments they have made towards their care home fees.
At the heart of the issue over who is responsible for paying for the accommodation is the distinction between social care and health care. In the case of Coughlan the Court of Appeal held that the Local Authority can only lawfully be responsible for the provision of general nursing care. The Court indicated that the decision as to whether the NHS or the Local Authority is responsible for providing the resdient’s care depends on the overall quality and quantity of nursing required, not the type of nursing services required.
The following conditions could demonstrate that a person has unpredictable, complex and intense health needs which would make him or her eligible for NHS Continuing care funding:
1. poor mobility requiring supervision
2. inability to self-medicate,
3. breathing difficulties,
4. poor sleeping pattern
5. poor skin tissue
6. swallowing difficulties,
7. inability to communicate and express needs
8. high level of confusion, disorientation
9. diagnosis of mental illness or psychiatric illness
10. challenging behaviour, aggression or anxiety
11. risk of causing harm to self or to others
12. being prone to infections
It is not easy to summarise the rules relating to charging for care home accommodation and professional advice should be taken. However, as a general rule, where the primary need is a health need, then the responsibility to pay the care home fees is that of the NHS, even where the individual has been placed in a Home by the Local Authority or has capital over £22,000. Where the person’s needs are only ancillary or incidental to provision of accommodation that the Local Authority is under a duty to provide then the Local Authority is responsible for the care home fees, subject to a person’s income and capital; the Local Authority means-test their services unlike the NHS. Even if the person is not eligible for NHS continuing care funding he or she should still be eligible to receive a weekly contribution to their fees from the NHS if he or she resides in a nursing home and requires the services of a registered nurse.
If the above information indicates that you or a member of your family have been incorrectly assessed/charged then please contact us on 01633 867000 or email claired@rlob.co.uk
Laura Selby
Elderly Client Solicitor
Private Client Department
Rubin Lewis O’Brien LLP
This article deals in general with a complex subject. No responsibility for any loss by any person as a result of acting in reliance on this article can be accepted by this firm. The article is written on the basis of the law as at 1 March 2009. |
|
| |
| < Back to all articles |
Panorama Highlights Dangers of Using Will Writers
In this week’s Panorama programme, presenter Vivian White highlighted the risks in using a will writing service. Many people are under the false impression a ‘will writer’ is a solicitor, but unlike a solicitor they do not have to undergo any training, have insurance, and are not regulated by any organisation which ensures that they conduct their activities in the interests of the consumer and provide some form of redress, if things go wrong. If they go out of business, there is little that can be done- sometimes the will cannot be found, even where charges have been made for storing it.
Andrew Poole’s wife, Suzanne used a will writer, but the will failed to include any provision for him, leaving the entire estate in trust for his stepdaughters. Caroline Bielanska, Chief Executive of Solicitors for the Elderly, appeared on the programme, and expressed concern that a spouse had not been provided for. The will writers appeared to have failed to advise on his right to bring a claim against the estate for inadequate provision. She said, ‘a specialist solicitor would have asked why a spouse was left out, kept a detailed record of those reasons and advised of the high risk that the will would be challenged’. Solicitors are in the business of giving legal advice, taking into account the client’s domestic and financial circumstances- it does not appear that Suzanne Poole received any such advice’.
The lack of regulation has enabled many will writers to adopt high pressure selling techniques which was illustrated in the programme, often offering wills for a low or discounted fee, and then recommending themselves to be appointed as executors, selling other services without full advice, such as transferring the home into a trust in an attempt to avoid care fees. Terms and conditions can be poorly worded and difficult to understand. In secret filming undertaken by the BBC for the programme, an elderly couple was not told the details of charges which were confusingly set out in writing but then taken away by the will writer.
The fear of solicitors costs, prompts some people to use will writers. Laura Selby of Rubin Lewis O’Brien LLP, Solicitors, Cwmbran commented, “Solicitor’s are required to set out in writing the basis of their charges, and in many cases wills are undertaken for a fixed fee with free storage of wills and other documents.” Recent research by the consumer group, Which? found that the average fee for will drafted by a solicitor was £130, compared to a will writer of £107.
Laura Selby said, “This programme highlights the potential for getting it wrong without full legal advice and the need for proper regulation of will writers. It can be very costly to undo after you have gone and can leave your family in disarray when they have to pick up the pieces as problems generally only come to light when you have died.”
Notes to Editors:
1. Solicitors for the Elderly (SFE) is a national organisation of lawyers, such as solicitors, barristers, and legal executives who are committed to providing and promoting robust, comprehensive and independent legal advice for older and vulnerable adults, their family and carers.
2. 67% of consumers wrongly believe that all will writers are solicitors, research has shown. A survey of more than 1,000 people revealed that 82% assumed that training and qualifications are required before someone can become a will writer. The Fellowship of Professional Willwriters and Probate Practitioners commissioned the survey.
3. Solicitors are regulated by the Solicitors Regulation Authority and must follow the Solicitors Code of Practice and Solicitors Accounts Rules.
4. Solicitors have to undertake regular continual training.
5. Research from Which? identified that many people were not given full advice about costs upfront by will writers, particularly for the cost of probate (Feb 2010).
6. Members contact details: Laura Selby - telephone number: 01633 867000
TRAINEE QUALIFIES!
The Partners are pleased to announce that Sarah Telford has qualified as a Solicitor, with effect from 1st April 2010.
Sarah will continue to work in the Litigation Department in the Cwmbran Office and can be contacted on 01633 867000.
|
|
