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Discussion in 'Legal and financial issues' started by fr0d0, Apr 15, 2015.
As the title says. What happens next?
Then the person who receives services will have to pay for those services in full.
What if they don't have liquid assets enough to cover costs?
What I'm getting at is... how do the local authority recover the costs. If they put a charge on any assets, is there still opportunity to pay weekly the amount that you can afford?
I'm wondering who to approach officially.
"What if they don't have liquid assets enough to cover costs?
What I'm getting at is... how do the local authority recover the costs. If they put a charge on any assets, is there still opportunity to pay weekly the amount that you can afford? "
If a deferred payment has been agreed the LA can optionally allow first party top-ups.
The LA recover the costs when the property is sold.
Have the LA made a needs assessment?
Not yet. Are you obliged to comply?
Have a read through
There should not be any mention of finances until the needs have been determined.
If the affected person, or their representative, refuses to supply financial information the person will be treated as having capital in excess of the limit and will have to self fund.
What if they refuse to self fund. What happens then?
(In this case a best interests meeting has decided that nursing home care is appropriate and have already placed the client).
You'd have to take legal advice on that.
I assume that the local authority would take court action to recover costs.
Assuming that you are talking about funding by the LA, I imagine that the LA would start legal proceedings to determine the person's assets as they have a duty to all council tax payers to administer funds wisely.
Who is refusing? The person receiving care, their attorney/ies or the family?
You could volunteer payment to the local authority. They wouldn't have to lose out at all.
You don't give many details, but surely if the person is in a condition where a nursing home is the only option, they should be assessed for Continuing Health Care. Doesn't mean they will get it but they should be assessed. Have they, and if so, what was the outcome?
"You could volunteer payment to the local authority. They wouldn't have to lose out at all."
If it was at the self funder's rate I think they would be delighted.
KateK they failed the chc assessment of course, and are appealing.
Nitram - the local authority wouldn't be able to accept that would they? They're not allowed to make a profit.
I did wonder. Good luck with the appeal.
Yet another example of someone who is ill enough to have to go into a nursing home (why else would they have to go there?) but then - surprise, surprise, when it comes to funding them, they are not ill enough!
It's pretty important to remember that the only person whose assets are directly involved here is the patient/relative. It is important also that if they lack capacity, there is, or should be, a deputy/PoA holder, which I don;t think you state here.
If the individual lacks capacity to manage their own affairs, and a deputy or PoA holder has been appointed, then the latter is obliged to either complete the assessment or to decline (formally) to do so stating why. If the issue is that the needs have not (yet) been determiend then the LA has (at that stage) no legal entitlement to the data. Once the needs have been determined as falling within the scope of the National Assistance Act, the LA is entitled to charge and the necessary regulations create the relevant statutory gateway required by the Data Protection Act for the relevant disclosures to be made.
If the issue is something else, then the LA can do several things. The two most likely are first that if there is real property (i.e. land or buildings) owned by the person concerned then it can register a c(iii) Land Charge under the Land Charges Act, and the debt is colelcted when the property is sold or transferred. It could also seek a court order over non-property assets. AS Nitram states, the LA can seek a Court order for discovery of assets: give the existence of the powers in the National Assistance Act, they would almost certainly get this.
Note that the deputy or PoA holder could find themselves personally liable for any costs/losses incurred by the resident/patient as a result of their (in)action, but this is an area for specialist advice. Or the LA could apply to the Court of Protection for a new Deputy/PoA holder to be appointed. The latter is (in may lay view) very unlikely. The Deputy POA holder can always ask the LA for alternative arrangements, but the LA is not under any obligation to comply.
If the person lacks capacity, and no Deputy has been appointed (and by definition there is no PoA), then there is an issue of how the person's assets are being managed. If one isn't appointed, the LA can (and I have posted elsewhere on TP in a case where this seemed to be happining), but it will normally encourage relatives or others to get themselves appointed as deputies or appoint one.
Ultimately it is simple: the deputy/PoA holder is under an obligation to complete the assesment when requested and the LA has the right to request the information in accordance with the National Assistance Act and the relevant regulations. If they don't then they could become personall liable for the consequences. In either case, specialist legal advice is necessary - vital - if you want to contest this.
Thank you for the thorough advice Wirralson. The patients representative does have a poa for finance and does completely lack capacity. With the chc process incomplete, the reason to decline the assessment is that the needs haven't yet been determined with the appeal still outstanding. The LA (social services department) contend that the assessment of a multi disciplinary panel, not including the relative and poa, concludes that the matter is resolved.
It would seem that the LA do not indeed have any entitlement to the data. I shall encourage the family to seek out specialist legal advice before proceeding.
Be careful. I don;t agree with your last sentence. Usual UK practice is that the matter is considered concluded at first instance - i.e. in this case after Panel but before any appeal, with the costs being recoverable after a successful appeal (IIRC plus interest at commercial - rather than judgment - rate). Legally, the needs have been determined, it's just that the party (and their representatives) don't agree with the decision (however justifiable, they, you or I may think such disagreement to be).
(The alternative is that if the appeal fails, the individual concerned would be liable (and their PoA holder would have to arrange) payment of any costs plus interest - at compunded daily rate. Otherwise everyone would appeal as a free filibuster and externalise their costs.)
The family need specialist advice at this point. The LA would (in my view - but I don't work for an LA) have an entitlement to charge and so to the data - once Panel is complete, they acquire that entitlement. However, this is a specialist area, and a qualified current practitioner's view is essential. I (and I am sure others) would be interested to hear what their view is. Any deicsion to appeal should only be taken after professional advice - one anecdotal reason for the low number of CHC appeals is that in many cases, when advice is sought, applciants are advised their chances of success are low and the risks of additional cost high.
As an aside, something that interests me, is that the patients assets fall just below a level which would enable them to be self funding of the full commercial (not reduced as would be paid by the LA) amount. I wonder if a compromise could be met somewhere... It would certainly be lucrative to the nursing home owner in the long run. The assets surviving the patient and available to pay off any outstanding debt.
It's not quite clear to me what you mean by this. When you say "the patient's assets" do you mean the patient's income, and when you refer to "The assets surviving the patient" do you meant capital assets ? There's nothing to prevent the PoA holder attempting to negotiate with the Nursing Home provider privately - they amy well accept a discount. But that's nothing to do with the LA. Indeed, it could be regarded as within the scope, or even be requried by, the PoA hodler's duties to maximise the efficent use of the patient's overall assets. But there is no obligation on the NH to accept this. It can be unwise to attempt to pay top-ups in this situation - it may be better to (gradually) deplete the capital assets up to the point the LA intervenes. Preservation of capital is not an end in itself in such cases - indeed the PoA holder risks beinga accused of preserving the value of the estate. Simplfying somewhat, the presumption is that the assets are there to be used during the lifetime of the individual - including liquidating any housing, for example. But again, qualified advice based on detailed knowledge of the situation of thsoe involved is essential to protect the patient's interest and that of the PoA holder.