Local Authority legal right to reclaim care home fees

Annieshack

Can anyone help with a difficult position for my family? My 53 year old cousin has cared first for his now deceased father and now his mother, a dementia sufferer with no capacity to make financial decisions. He is self employed and continues to work when caring allows. He has no capital or property of his own and has lived with his parents for several years.
The property is tied to an equity release scheme, under which it must be sold if auntie goes into a care home permanently, something social services have agreed is necessary. There will then be about £160k left, which, as there is no LPA in place and my cousin is not the Deputy for auntie, he cannot access or authorise how it is spent.
What right do the LA have to access these funds to pay for aunties care? When she dies, can they present the family with a bill for deferred fees?
We are hoping to obtain a Disregard, but if not, we need to understand whether the LA can claw back fees.

G_M

How old are you?

Do I have to sell my home to pay for care?

Your ability to pay for care will be worked out through a means test. Your home will not be included if you're arranging care and support at home and may not be included if you live with a partner, child, or a relative who is disabled or over the age of 60.

https://www.ageuk.org.uk/information-advice/care/paying-for-care/paying-for-a-care-home/do-i-have-to-sell-my-home-to-pay-for-care/


edit- oops! 53, so the property will be included in the mother's means assessment and yes, the LA can require the property to be sold and the funds from the sale used to pay for the care.

System

I am not an expert in this area but as I understand it any assets or savings over a certain amount have to be used to cover care costs and once the threshold is reached then the Local Authority should cover the cost.


The criteria does differ from authority to authority so give them a call

agrinnall

You say that there is no LPA in place and your cousin is not the deputy to his mother, does that mean that somebody else is? If so then decisions on how money is spent are in their hands, if not then is it worth your cousing going through the process to become a court-appointed deputy? The fees are quite steep but for property and financial affairs the cost can be reclaimed from the person's funds.



https://www.gov.uk/become-deputy

lisyloo

She is probably entitled to a 12 week disregard.



I think I can help as I am a deputy under the court of protection.
Someone (presumably cousin) will need to apply for deputyship under the court of protection (I'm assuming no-one else has LPA) There are lots and lots of forms for this so needs to be someone whos happy doing paperwork.
One of the first things that needs to be done is for a GP to fill out to form. This took us about 3 or 4 weeks as you can imgaine GPs are busy people and cost £85.
There is a fee for the application but there is a form (another one) for waiving the fees.
I waited 6 months to get the court order.


During this time the local authority set up a DPA (loan).
There was one form for the loan and a couple to put a charge on the property and an ID form (ID1) that a solicitor charged me £48 for.
I did this without the court order although I sent scans of my application so the LA knew I had applied.
I also didn't spend the £48 until the court order had come through, but did the other forms.


A bond (insurance) is required to cover the deputy running off with the funds plus there is an inital supervision and on-going supervision fees (she can get these a 50% if her income is <£16K).


I put the flat on the market before I had the court order.
Both the estate agents and solicitor worked with me prior to the court order with a scanned copy of the court application.


Does she get attendance allowance?
If she needs nursing care they should organise an assesment to get the nursing element paid for by the NHS. This is called funded nursing care.


So basically yes the LA can claw back fees.
You need to start putting a deputy in place ASAP (proritise the GP form) and start emptying the property ready for sale.


If anyone if lurking then the best piece of advice from this is get an LPA in advance (take it from someone that's done COP).


The bill for the care fees plus the LA charges (about £700) were taken straight off the house sale i.e. went direct from the solicitor to LA.
The LA will probably want an "undertaking" from the solicitor that care fees are paid direct to them.

lisyloo

BTW - it took us 6 months to get my MILs flat ready for sale after my FILs death. We spent the first month organising the funeral and the next 5 emptying the flat, cleaning, decorating. Everyone in the family works so we were doing it in our spare evenings and weekends.



Local Authorities may of course be different but ours (BANES) were on my back to get the forms signed (so they were covered) but they were not on our back about getting the house to market or the house sale.

xylophone

Have you asked for a full CHC assessment?

If this is turned down, then the money will need to be used for her care, (unless a disregard from the LA can be obtained - this appears unlikely).

Lisyloo has given guidance as to the next steps as there is no LPA in place.

lisyloo

CHC is nigh on impossible to get (this mean NHS pay all fees as primary requirements are medical).
If she’s been cared for at home and her carer has gone out to work then it doesn’t sound like she would qualify.
Although dimensia is a disease the resulting care is often primarily personal e.g. feeding, washing, dressing, help with walking.
The requirements for CHC are very high as even someone who immbile and cannot feed themselves does not need medical care (which would be IVs, injections etc.).

We don’t know the full circs but I would expect someone to be in hospital if they had high medical needs and not at home sometimes on their own.

I believe you can ask for it.

xylophone

CHC is nigh on impossible to get (this mean NHS pay all fees as primary requirements are medical).

Not wholly accurate.

https://caretobedifferent.co.uk/17-untruths-about-nhs-continuing-healthcare-funding-part-1/

But yes, it is difficult to get and there is the time waiting for the appointment with the assessor.

Relative's relative died before the assessment was actually done - on the day the assessor finally arrived, she was so poorly that the assessor refused to attempt the assessment!

Fire_Fox

Welcome to MSE.

Responding backwards, not least because I am unclear whether you are seeking advice about your aunt or about your cousin.

Annieshack wrote: »

Can anyone help with a difficult position for my family?

The property is tied to an equity release scheme, under which it must be sold if auntie goes into a care home permanently, something social services have agreed is necessary. There will then be about £160k left, which, as there is no LPA in place and my cousin is not the Deputy for auntie, he cannot access or authorise how it is spent.

If your cousin held Power of Attorney, he would be legally obligated to act in their mother's best interests. Even if that was counter to his own best interests. From what you say here, two main decisions are out of your cousin's hands. Your aunt is to move into a residential care home and her house is to be sold.

Annieshack wrote: »

What right do the LA have to access these funds to pay for aunties care? When she dies, can they present the family with a bill for deferred fees?
We are hoping to obtain a Disregard, but if not, we need to understand whether the LA can claw back fees.

You are referring to your aunt's assets as if they are not her assets. Being self-funding can 'open doors' to a wider range of care options, or make access much quicker/ smoother and thus much less stressful.

Your aunt's specialist care will be funded by your aunt herself (whilst living) or by your aunt's estate (when she passes). Neither your cousin nor any other member of your family should be charged for your aunt's specialist care.

Annieshack wrote: »

My 53 year old cousin has cared first for his now deceased father and now his mother, a dementia sufferer with no capacity to make financial decisions. He is self employed and continues to work when caring allows. He has no capital or property of his own and has lived with his parents for several years.

Given the situation, your cousin should seek advice ASAP on what benefits he is eligible for and/ or how best to apply for rehousing. I would suggest an appointment with the Citizen's Advice Bureau. If your cousin has any issues with his mental wellbeing - depression/ stress/ anxiety? - this should be 'logged' with his GP.

Single men can easily be pushed to the 'back of the queue' for support with rehousing when at risk of becoming homeless: physical or mental health issues can make this less likely.

HTH.

lisyloo

Fire_Fox wrote: »

Your aunt's specialist care will be funded by your aunt herself (whilst living) or by your aunt's estate (when she passes).

I don’t understand this comment.
She has an illiquid asset (the property). LAs make arrangements for this by providing a loan whilst the property is sold, but they will expect it to go on the market. They’ll want someone to sign that Loan agreement ASAP or agree to pay the fees (so there isn’t much alternative to agreeing to the loan).

If she died before it was sold then yes the estate would have to settle the DPA but whilst she alive the LA will expect move to sell the home (we did take 6 months to get our flat to market so they were not impatient about the liquidation, but they were impatient to get agreement to the loan).