Paying the unfair price for home care

Imagine going through one of the worst experiences of your life and then being told that you have to sell your house as well. This is what happens to many families when their sole, remaining parent has to go into a residential or nursing home.

A Department of Health White Paper which could lead to an easing of these rules is due by 17 July when Parliament goes into recess, but experts say the Government might fudge the issue.

At the moment, the basic rule in England is that a person has to pay for residential care from any capital they have, including their home, above the £23,250 threshold.

While this rule is flexible and does not apply, for instance, if a partner (or certain other dependants) still lives in the property, it is widely seen as unfair.

Some experts say cash-strapped, local authorities are applying the rule more severely.

Private client lawyers at Pannone are being approached by more elderly people who are worried at the prospect of losing their house to pay for care.

"There have been substantially more cases in the last couple of years," said solicitor Helen Gaskell.

Stephen Lowe, policy adviser on care and support at the charity Age UK said: "The anecdotal evidence is that local authorities are being more aggressive in pursuing this issue."

He is referring to the "deliberate deprivation" rules through which an authority can argue that a person's home or other assets should be used to fund their care even if they have given the property to a child or someone else.For the argument to work, the authority has to prove that the asset was given away with the deliberate intention of avoiding paying for care.

But there is almost unanimous agreement that these rules are too harsh and go against a natural human desire among the elderly to leave something more substantial than £23,250 to their children.

Andrew Cozens, the strategic adviser on adult care to the Local Government Association, said: "It's such an opaque system. It hasn't got regard for the way the profile of people using care has changed. We still have a system based on the Poor Law."

The White Paper, which will come out a year after a government-commissioned report produced by the Dilnot Committee, recommended changes in the system which would raise the threshold from £23,250 to £100,000 and cap the total care cost exposure of each one of us to £35,000.

These proposals have received considerable support, including from the Association of Directors of Adult Social Services (ADASS), representig the heads of care teams in local authorities.

However, as costs could amount to £1.7bn a year, the Government is expected to drag its heels over the issue. It is due to publish another document alongside the White Paper on the fundamental design of the social care system. But it would be no surprise to some experts if the Dilnot proposals are held over to be dealt with in the next three-yearly comprehensive spending review, due in 2015.

For the time being, thousands of families a year are dealing with these difficult issues. What typically happens is that a local authority refuses to pay care home fees when it discovers, in the course of the financial assessment it makes of each new resident, that a major asset, such as a house, has been given away.

If people do not get advice at this point they may just go along with what the authority says, not realising that, in some instances, they could have a strong defence.

The Relatives and Residents Association has seen several of these painful cases.

"It is quite difficult because they have to reimburse the local authority," says chair Judy Downey.

"Most people don't have the clout, energy and information to dispute it. The reluctance by local authorities to offer deferred payments is increasing significantly," she added.

In the most dramatic situations, families are forced to sell a home, even if its ownership has been transferred to a child, in order to pay care home fees.

Some councils appear to be becoming much less likely to use discretionary powers which would give families more flexibility over when such a property were sold or if it could be let out instead.

In reality, there seems to be a lot of variation between councils.

"The position taken by one local authority can vary very much from the local authority next door," said Simon Bottery of Independent Age.

John Jackson, a spokesman for ADASS and also the director for social and community services in Oxfordshire, said he has never come across a case of deliberate deprivation.

"People's concern about losing their house is absolutely the case," he said. "And they could lose almost the whole of value of it. But the issue is: would people do that planning ahead? People who are going into residential care are very, very frail. Many of them will have some form of dementia."

The Relatives Association, Independent Age and other organisations are all agreed that people should take advice.

Specialist lawyers in particular can be a great help in these situations. Pannone, for instance, never recommends that people give away their property completely, as they can be left helpless if they fall out with their children, their children get divorced or if something else unexpected happens (see case study).

Ms Gaskell recommends that people should be very careful about "one size fits all" plans which are being sold to elderly people to put their homes into a lifetime trust for their children.This means that the person no longer controls their home and it may also provide no protection against the deliberate deprivation rules if it was done to avoid paying for care fees.

She recommends that, if they go down this route, people should put the home into a trust while retaining the right to live there until they die.

Staffordshire is seen as a beacon of hope in the midst of this difficult and growing problem.

For more than two years it has been working hard to keep down the numbers of people who are going into homes by bolstering its home help care services.

It has reorganised itself into England's largest joint NHS and local authority trust in order to provide joined up medical and social care.

The trust works hard to alert people well in advance of the need to plan for the possibility of going into a home.

Councillor Matthew Ellis said: "This doesn't always mean getting rid of your home. If you are not in your home you can rent it out.

"It's just that it's not easy to organise that at the last minute."

Perhaps the Government could take a lesson from Staffordshire where flexibility, better co-ordination and planning have seen deliberate deprivation cases reduced to almost zero.

Case studies: 'Having to sell would be horrendous'

Jane has just retired after 50 years of working in the arts world and bringing up her children. She does not have much disposable cash but she does have a house that she dearly wants to leave to her children. "There is a real problem for people like me who have worked all their lives and haven't got that much," she says. "I have three kids who haven't got that much, and I'd like to leave the house to them. The thought of having to sell it to look after my long-term care is just horrendous."

Although she is in good health and nowhere near going into a home she is concerned by the issue. The mother of a close friend was recently forced to sell her home to pay for residential care, with the local authority involved imposing this solution on the friend who wanted to rent out the property and pay most of the fees that way.

"She was furious," says Jane. "I feel there could be more creative ways of managing this than the black and white way it's being done now."

In a case that Helen Gaskell became involved in towards the end, an elderly lady transferred her home over to her son. He unexpectedly died before her. Fortunately, he had left the house to his children, who got on very well with her. They could have insisted that she move out of the property as she no longer had any rights to it. Instead, they came to an agreement to vary the son's will, and the lady's rights to live there were restored.

LINKS

Age UK: http://www.ageuk.org.uk/ and helpline 0800 169 6565

Age UK leaflet on deliberate deprivation: http://www.ageuk.org.uk/Documents/EN-GB/Factsheets/FS40_deprivation_of_assets_in_the_means_test_for_care_home_ provision_fcs. pdf?dtrk=true

Department of Health: http://www.dh.gov.uk/health/category/policy-areas/social-care/

Department of Health booklet: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_133037

Independent Age: http://www.independentage.org/ and advice line 0845 262 1863

Relatives and Residents Association: http://www.relres.org/ and advice line 020 7359 8136