There must have been a case where all this was argued about in court as the law is vague, and has therefore set a legal precedent.
Is having to sell your home to pay for care legally enforcable?
- Thread starter Dave63
- Start date
I think you're right but I can't for the life of me find anything relating to legislation or legal precedent.
1 Sources and terms used in this factsheet
Care Act 2014, regulations and statutory guidance
This factsheet is based on the Care Act 2014 (‘the Act’), its supporting regulations and the Care and Support Statutory Guidance (‘the guidance’), introduced in April 2015.
Relevant sections of the guidance include chapter 8 ‘Charging and financial assessment’, chapter 9 ‘Deferred payments agreements’, annex B on treatment of capital, and annex C on treatment of income.
Relevant regulations include:
⚫ the Care and Support (Charging and Assessment of Resources) Regulations 2014 ('the charging regulations') and
⚫ the Care and Support (Deferred Payments) Regulations 2014 (‘the deferred payments regulations’).
The Act, guidance and regulations are mentioned in the text and set out in detail how a local authority must administer adult social care.
In:
www.ageuk.org.uk
Follow link to:
fs38_property_and_paying_for_residential_care_fcs.pdf
Care Act 2014, regulations and statutory guidance
This factsheet is based on the Care Act 2014 (‘the Act’), its supporting regulations and the Care and Support Statutory Guidance (‘the guidance’), introduced in April 2015.
Relevant sections of the guidance include chapter 8 ‘Charging and financial assessment’, chapter 9 ‘Deferred payments agreements’, annex B on treatment of capital, and annex C on treatment of income.
Relevant regulations include:
⚫ the Care and Support (Charging and Assessment of Resources) Regulations 2014 ('the charging regulations') and
⚫ the Care and Support (Deferred Payments) Regulations 2014 (‘the deferred payments regulations’).
The Act, guidance and regulations are mentioned in the text and set out in detail how a local authority must administer adult social care.
In:
Do I have to sell my home to pay for care? | Age UK
We explain the means test and property and when you have to sell your home to pay for care. Find out more information from Age UK. Read now.
www.ageuk.org.uk
Follow link to:
fs38_property_and_paying_for_residential_care_fcs.pdf
@northumbrian_k, perfect. You've answered the question I've been too dim to figure out and you have won a virtual Creme Egg1 Sources and terms used in this factsheet
Care Act 2014, regulations and statutory guidance
This factsheet is based on the Care Act 2014 (‘the Act’), its supporting regulations and the Care and Support Statutory Guidance (‘the guidance’), introduced in April 2015.
Relevant sections of the guidance include chapter 8 ‘Charging and financial assessment’, chapter 9 ‘Deferred payments agreements’, annex B on treatment of capital, and annex C on treatment of income.
Relevant regulations include:
⚫ the Care and Support (Charging and Assessment of Resources) Regulations 2014 ('the charging regulations') and
⚫ the Care and Support (Deferred Payments) Regulations 2014 (‘the deferred payments regulations’).
The Act, guidance and regulations are mentioned in the text and set out in detail how a local authority must administer adult social care.
In:
Do I have to sell my home to pay for care? | Age UK
We explain the means test and property and when you have to sell your home to pay for care. Find out more information from Age UK. Read now.
Follow link to:
fs38_property_and_paying_for_residential_care_fcs.pdf
So, it appears the Care Act 2014 is the legal framework giving LA's the right to pursue care cost debts through the county courts. Paragraph 47 of Annexe D of the Care and Support Statutory Guidance gives the detail of how a LA can apply for a charge against someones property in order to recover the debt.
So that answers that question, thanks @northumbrian_k.
If the patient is not entitled after a fast track or full CHC assessment for NHS to pay for care home fees ( NHS funding is not means tested and does not ask about your financial situation ) they might offer to pay FNC which is a contribution towards the nursing element of the patients care but this is only approx £230 per week. At this stage the patient is referred down the line to local authority social services to means test any funding they are prepared to give. I might at this point also add, if any attendance allowance has been stopped due to being in a care home or hospital setting etc and the bill covered by NHS you can immediately apply for AA to be re instated.
So you should now be at the point of being in the hands of LA to means test, with an income that will include any pensions /the attendance allowance/ and the FND ( funded nursing care allowance)from NHS if it awarded.
Social services LA will then look at your finances including your income ( as above) and your level of personal savings/assets to work out if they should contribute partly or fully towards the rest of the care fees. Your income will already be used in the this equation ( bar a nominal amount of approx £28 per week which is considered spending money for the patient). If your savings are below £ £23,250, you will be entitled to them helping with care costs, but any savings over £20000, (recently changed from £14250) will still be counted as £1 of income per week per £250 of savings.
Your property can not be included in the financial assessment for a few reasons and you should check to see if any of these apply , a)if your spouse partner or dependant child over the age of 18 or carer still lives in the property, b) it can not be used as part of the financial assessment of your assets in the first 12 weeks of you being in care, or c)if you have previously signed your property over to another party as part of a living trust.
If you are considered a 'self funder' and responsible for paying all or part of any remaining care fees, it is considered this should come out of you asset pot until you reach the £23250 threshold . If your cash pot/savings run out and you do not wish to sell the property to continue to pay, you can ask to apply for deferred payment scheme ( do this 3 months before you get to the £23250 limit) if you are eligible for this scheme the LA pay the care home bills until death and then the dead persons estate is issued with a 'charge' that they have logged with land registry that their bill needs settling at the point of sale of the house . If the house is left to a relative and they choose not to sell they will be responsible for the debt. LA will also add interest to this 'loan'.
No relative is legally obliged to pay the care home fees, it is not anyone elses legal obligation to pay for someone elses care even relatives ( unless they have been left or gifted part of the patients assets or estate when they have died)
Hope this helps.
The care limit which is supposed to be capped isnt til next year and then it will be capped at 86k total life time care. But that is for the care element of the fees not all i.e if a care home charges £1500 per week £1000 will be to stay there and eat etc only £500 will be for 'care' and count towards the £86k cap ( fiqures for example only)
So you should now be at the point of being in the hands of LA to means test, with an income that will include any pensions /the attendance allowance/ and the FND ( funded nursing care allowance)from NHS if it awarded.
Social services LA will then look at your finances including your income ( as above) and your level of personal savings/assets to work out if they should contribute partly or fully towards the rest of the care fees. Your income will already be used in the this equation ( bar a nominal amount of approx £28 per week which is considered spending money for the patient). If your savings are below £ £23,250, you will be entitled to them helping with care costs, but any savings over £20000, (recently changed from £14250) will still be counted as £1 of income per week per £250 of savings.
Your property can not be included in the financial assessment for a few reasons and you should check to see if any of these apply , a)if your spouse partner or dependant child over the age of 18 or carer still lives in the property, b) it can not be used as part of the financial assessment of your assets in the first 12 weeks of you being in care, or c)if you have previously signed your property over to another party as part of a living trust.
If you are considered a 'self funder' and responsible for paying all or part of any remaining care fees, it is considered this should come out of you asset pot until you reach the £23250 threshold . If your cash pot/savings run out and you do not wish to sell the property to continue to pay, you can ask to apply for deferred payment scheme ( do this 3 months before you get to the £23250 limit) if you are eligible for this scheme the LA pay the care home bills until death and then the dead persons estate is issued with a 'charge' that they have logged with land registry that their bill needs settling at the point of sale of the house . If the house is left to a relative and they choose not to sell they will be responsible for the debt. LA will also add interest to this 'loan'.
No relative is legally obliged to pay the care home fees, it is not anyone elses legal obligation to pay for someone elses care even relatives ( unless they have been left or gifted part of the patients assets or estate when they have died)
Hope this helps.
The care limit which is supposed to be capped isnt til next year and then it will be capped at 86k total life time care. But that is for the care element of the fees not all i.e if a care home charges £1500 per week £1000 will be to stay there and eat etc only £500 will be for 'care' and count towards the £86k cap ( fiqures for example only)
I think its more to do with the council seeking payment for the provision of Social Care which it is obligated to provide by law. The LA ( Council) is allowed to charge for Social Care after a means test has been applied to a persons savings and assets.
If a person does not have capacity then the LA (Council) will actively seek someone who either has an LPA or a Deputyship Order to take decisions about a persons savings and assets. If there is no one then the LA (Council) will apply for Deputyship Order and take control of the decisions relating to savings and assets and thus payments for care.
If a person does not have capacity then the LA (Council) will actively seek someone who either has an LPA or a Deputyship Order to take decisions about a persons savings and assets. If there is no one then the LA (Council) will apply for Deputyship Order and take control of the decisions relating to savings and assets and thus payments for care.
As others have said the local authority have a legal responsibility to provide care.
They would asses the persons finances, if this assessment concluded the local authority believes the person has assests over the threshold, then they will not accept responsibility for payment of care.
If you refused to pay the care fees when deemed a self funder the local authority would have to make the payments to secure the care package, it is then at their discretion to decide to recovery these costs, they have 6 years to do so and would usually wait until the person has passed to attempt to recover costs.
To actually force a sale of a property they would first need a county court judgement for the 'debt' they would then have to apply for a sale order of the property.
In answer to the original question, I would say that yes they would force a sale of the property, at a time that suits them, unless of course there is good legal grounds for the refusal of selling the property in the first place.
They would asses the persons finances, if this assessment concluded the local authority believes the person has assests over the threshold, then they will not accept responsibility for payment of care.
If you refused to pay the care fees when deemed a self funder the local authority would have to make the payments to secure the care package, it is then at their discretion to decide to recovery these costs, they have 6 years to do so and would usually wait until the person has passed to attempt to recover costs.
To actually force a sale of a property they would first need a county court judgement for the 'debt' they would then have to apply for a sale order of the property.
In answer to the original question, I would say that yes they would force a sale of the property, at a time that suits them, unless of course there is good legal grounds for the refusal of selling the property in the first place.
