Question re: Charging for Residential Accomodation

[goodtyneguy]

Hi everyone,

It's a while since I've been here, if you need to see the background to my enquiry please see here:

http://www.alzheimers.org.uk/talkingpoint/discuss/showthread.php?t=6256

I'm enquiring on behalf of my girlfriend who's father has mild dementia. He was put into an assesment centre a few months ago after he became aggressive towards her mother, his wife. Furthermore her mother has her own minor health problems and is only just capable of looking after herself. My girlfriend lives with her mother and has done so since 1996, she is on the electoral role at that address.

While on assessment her father has had a number of visits home varying from one day to four days, some of which had to be curtailed because of his mis-behaviour. The assessment period has come to an end and the authorities have decided that he needs to go into residential care, the wheels are now in motion to find a suitable place in a local authority home.

We are concerned about how things will pan out financially for her mother amongst other things and want to try and be prepared for different scenarios.

Her mother and her father own their property outright as joint tenants I believe (or the normal way a solicitor would buy a property for a married couple). Her father has a state pension plus two small private pensions and her mother has a small state pension. They have about £7000 in a building society high interest account. Fortunately my girlfriend was able to get an EPA in place for her father earlier this her (thanks to the help of the good people in this forum, see link above) before he lost mental capacity. The power of attorney was granted jointly and severally to my girlfriend and her mother.

We are not very clear on how her mother will be charged for his care. These are our thoughts:

We think their joint income will be put through a means test which will determine how much they (her mother and father)have to contribute. We also understand that the shortfall between the actual charge and what they have to pay will accrue as a lien against the value of their home. Once they are both no more and their home is sold the accrual will be taken from the proceeds of sale.

It would be nice if someone could clarify the situation for us.

Thanks

EDIT: They are both resident in England.

 

[jenniferpa]

There are two separate issues here: income and assets.

Assets first. Provided your GF's mother remains in the house, the entire value of the house will be disregarded. Only if at some point in the future she decides she wants to sell it would the father's share be considered for charging purposes. All other jointly held assets (bank accounts and the like) will be split down the middle. On the basis of what you say, that would put him firmly in the funded by local authority bucket.

Income. Wife's income is not considered. However, when it comes to his income, 50% of his occupational (not state) pensions must be allocated to his wife. Actually, more than 50% can be allocated if the LA agrees but this is decided on a case by case basis. Assuming all you can get them to agree to is this mimum 50% all of the remaining pension will be paid over to the local authority less £20.45 which is his weekly personal expenses allowance. The only time a lien would come into play is if his wife chose to use the value of the property to pay a top-up in order to place him in a residential home which cost more that the LA was prepared to pay. Note though that if he has unique needs that require a apecific type of placement and the only sutiable placement costs more than the LA would normally pay, they (the LA) are responsible for that increased payment.

I assume from what you say that at no time he has been sectioned? Because if he has, different rules apply.

 

[goodtyneguy]

Hi Jennifer, thank you for your very informative reply, it has provided some welcome relief.

My GF's mother and father have worked hard at their low paid jobs all their lives to bring up their two daughters and to pay for their home. Once they had redeemed their mortgage they felt proud in the knowledge that when they are no more they will leave a legacy to their daughters and grand children for all their hard work. As you can imagine the mental affect of the possibilty of losing this only served to exacerbate a difficult situation.

It's interesting to note that their home will be disregarded providing her mother remains living there but will possibly be subject to assessment should she sell. That brings me on to further questions if I may. Let me explain first.

Before her father's demise my GF and I were planning for various reasons (including my work) to move to the other end of the country, that move is now obviously "on hold". We still aim to move but need to accomodate for her parent's situation.

Owing to her mothers age (85) and her health problems we need to persuade her to either sell up and live near one of her daughters or sell up and buy into a retirement development with warden assistance or preferably a combination of both. She is reluctant to do either but I think she would be in favour of moving to be near her only other daughter and son in law who presently live about 60 miles away. They have children and we don't, so it seems only natural that she will want to be near her grand children. The idea being for her to obtain a property the same size and value as her existing home i.e a 2 bedroom flat. We will be over 200 miles away so it means we can stay with her on our visits. We obviously have to get a decision quite soon so we can inform the authorities where we want her father to be accomodated.

1) Either way it involves selling their home, how will the LA view this from a charging point of view?

There are a couple of other scenarios we may have to consider.

2) What would happen from a charging point of view if (God forbid) her mother passed away before her father?

3) Assuming scenario 2), would my GF be allowed to remain living in her parents' home?

Depending on the answers we may have to re-arrange our short term plans.

Thanks

EDIT: Forgot to mention, he has not been sectioned.

 

[jenniferpa]

Firstly I should say that the local authority has a great deal of flexibility on these issues. However, I'm going to answer on the basis that they will be difficult (i.e do the minimum they have to).

If your MIL (I know she's not, but it's easier to call her that, I hope you don't mind) sells her property at this point and your FIL's placement will be paid for by the LA (local authority), sadly 1/2 the net value realised by the sale will be assigned to your FIL to pay for care. I.E. if she sells the property for 150K then she will only be able to retain 75K. Not until the value of your FIL's pot (75000 + 3,500) has been spent down to 21000 will he become eligible for LA funding.

If your MIL passed away before your FIL and their daughter was living with them, there is automatic disregard only if she (daughter) is 1) disabled or 2) over 60. There may be something that can be done with a will (i.e. I'm not sure what the position would be if your MIL made a will leaving her share of the property to her daughter), but you'd have to speak to a solicitor about that. Definitely, if the daughter owned part of the property the LA would have to value FIL's share of the property not on the basis of what could be realised at sale, but what could be obtained for his share of the property - you can imagine there aren't many people who would be prepared to pay face value for a property that was partially owned by someone else. However, this is extremely complex and you would ABSOLUTELY need specialist advice about that.

That's the basic situation if the LA shows no flexibility AND your FIL is not eligible for full NHS continuing care. If he was granted the latter, then the NHS do not consider assets at all and you can do what you want.

However, this is what could happen. The LA can, if they wish, allow your MIL to retain more than 50% of the realised value of the property when it is necessary in order to allow her to purchase a suitable property. They don't have to, but they are "supposed" to consider this. Also, should your MIL die first and your GF was living in the house and had moved there to provide care for MIL and had given up her own home accordingly then they are also supposed to be flexible about that as well. This seems to play out best when the alternative is that the person (MIL or daughter) would, should the LA take everything they are entitled to, effectively make the person homeless.

Now you may find that since the LA would not, and know they would not, be entitled to the property should your MIL continue living there that they may be much more willing to allow her to move and retain the entire value. However, I think it is likely that in that event they will try (and again I have no idea if they are actually entitled to do this) to set up the agreement in such a way that should your MIL die first, the portion of the proceeds of the house sale that would have been apportioned to your FIL would on your MIL's death go back into his pot.

I suppose what I'm trying to say is that unless your MIL stays in her current property AND outlives your FIL, there is probably no way that the LA won't get their sticky fingers on as least some part of the proceeds.

Please, please bear in mind that I am by no means an expert on this - what I know I have gleaned from CRAG (Charging for Residental Accomodation Guide): the over 100 pages of which are available here http://www.dh.gov.uk/en/Publication...tions/PublicationsPolicyAndGuidance/DH_073650

 

[chip]

Was interested in reading this. But do you know what the difference is if they have ever been sectioned. As my husband was sectioned in 2006

 

[jenniferpa]

Chip - I should point out what I'm going to say relates to England and I know you're in Scotland. However I do not "believe" that sectioning is handled any differently in Scotland (although it might be). Also the mind site which has the clearest info on the mental health act and its ramifications does not cover Scotland either.

If someone has been sectioned under Section 3 (or section 37 which involves criminal proceedings) they have the right to after care. In essence for someone who has a progressive dementia that effectively means fully funded NHS care. However note that it must be one of those sections - not sections 2, 4 or 5. This cuts out the vast majority of people who have been sectioned, I'm afraid.

 

[chip]

Thanks i will need to hunt now and see if i can find the letter i got then. I no its difficult to find Scotlands guides. The Advocacy has been trying to find things out as well and she is having trouble on continuing care, but as some say National guidelines we are going on that at the moment.

 

[jenniferpa]

Chip - having done a little research I find that Scotland indeed has it's own set of laws The Mental Health (Care and Treatment) (Scotland) Act 2003 There are some guides to this here http://www.samh.org.uk/frontend/index.cfm?page=272

I have been unable to find, I'm afraid to say, information regarding the rights of patients to ongoing care under this law. They HAVE a right to ongoing care, it's just what that care might be is not spelled out (or at least not where I can see it)

 

[Mameeskye]

Chip
I hope that your advocate can find out for you. I know that the NHS continuing care is currently being fought for in Scotland at the moment as it currently does not happen due to our "free" personal and nursing care allowance system...however I think that Help the Aged or someone similar was going to try taking action.

Hope that you can find out soon.

Mamee

 

[goodtyneguy]

Firstly I should say that the local authority has a great deal of flexibility on these issues. However, I'm going to answer on the basis that they will be difficult (i.e do the minimum they have to).

If your MIL (I know she's not, but it's easier to call her that, I hope you don't mind) sells her property at this point and your FIL's placement will be paid for by the LA (local authority), sadly 1/2 the net value realised by the sale will be assigned to your FIL to pay for care. I.E. if she sells the property for 150K then she will only be able to retain 75K. Not until the value of your FIL's pot (75000 + 3,500) has been spent down to 21000 will he become eligible for LA funding.

If your MIL passed away before your FIL and their daughter was living with them, there is automatic disregard only if she (daughter) is 1) disabled or 2) over 60. There may be something that can be done with a will (i.e. I'm not sure what the position would be if your MIL made a will leaving her share of the property to her daughter), but you'd have to speak to a solicitor about that. Definitely, if the daughter owned part of the property the LA would have to value FIL's share of the property not on the basis of what could be realised at sale, but what could be obtained for his share of the property - you can imagine there aren't many people who would be prepared to pay face value for a property that was partially owned by someone else. However, this is extremely complex and you would ABSOLUTELY need specialist advice about that.

That's the basic situation if the LA shows no flexibility AND your FIL is not eligible for full NHS continuing care. If he was granted the latter, then the NHS do not consider assets at all and you can do what you want.

However, this is what could happen. The LA can, if they wish, allow your MIL to retain more than 50% of the realised value of the property when it is necessary in order to allow her to purchase a suitable property. They don't have to, but they are "supposed" to consider this. Also, should your MIL die first and your GF was living in the house and had moved there to provide care for MIL and had given up her own home accordingly then they are also supposed to be flexible about that as well. This seems to play out best when the alternative is that the person (MIL or daughter) would, should the LA take everything they are entitled to, effectively make the person homeless.

Now you may find that since the LA would not, and know they would not, be entitled to the property should your MIL continue living there that they may be much more willing to allow her to move and retain the entire value. However, I think it is likely that in that event they will try (and again I have no idea if they are actually entitled to do this) to set up the agreement in such a way that should your MIL die first, the portion of the proceeds of the house sale that would have been apportioned to your FIL would on your MIL's death go back into his pot.

I suppose what I'm trying to say is that unless your MIL stays in her current property AND outlives your FIL, there is probably no way that the LA won't get their sticky fingers on as least some part of the proceeds.

Please, please bear in mind that I am by no means an expert on this - what I know I have gleaned from CRAG (Charging for Residental Accomodation Guide): the over 100 pages of which are available here http://www.dh.gov.uk/en/Publication...tions/PublicationsPolicyAndGuidance/DH_073650

Dear Jennifer, thank you once again for your detailed, informative and very helpful reply. It is very much appreciated.

I must admit I am aware of CRAG but was reluctant to delve there because of time and attention span constraints. Having said that, even if I do what you have done and take the time to read through (and providing I understand correctly) the rules from CRAG, I think (as you have suggested) it would be essential to seek professional advice from a solicitor. Preferably one who has had a lot of experience in this field, their insight could prove invaluable.

One thing is for sure, if we are to try and preserve the legacy there are some difficult decisions to be made in the near future.

All the best.

Rob

 

[jenniferpa]

I agree Rob. You want a solicitor who not only has expertise in this field but who also has experience in your geographical area as interpretation is very much on a local authority basis. Depending on where you are, the Law Centres might be able to help http://www.lawcentres.org.uk/

Good luck

 

[goodtyneguy]

Jennifer, your point about the geographical location of the solicitor is a one which I overlooked and is of crucial importance, thanks.

I have been discussing your comments in detail with my girlfriend this afternoon and she is to speak to the authorities this coming week as well as seek some legal advice (thanks for the link). By her speaking to the authorities we hope to be able to get "a feel" for there level of flexibilty and attitude towards relocating her mother in respect of their charging assessment.

There is one other important point which has been raised in our conversation which may be to our advantage if we go the route whereby the MIL stays put but does not out live the FIL. My GF was diagnosed with epilepsy about 20 years ago, her condition is controlled by daily medication and she is able to hold down a full time job. We are wondering with her condition whether she would be regarded as disabled and therefore the in laws's home would be disregarded in the scenario mentioned?

Rob.

 

[Helena]

There is a SEPARATE Alzheimers Society in Scotland with a freephone helpline

I am sure they will know how the value of the home is assesed in the situation your MIL and GF find themselves

However remember if your MIL is 85 presumably FIL is older and it may not be long before he dies anyway .........some quiet tactful questions need to be asked of doctors before you rattle any cages with Social services etc

 

[jenniferpa]

Helena - I do not believe that the OP (Rob) is in Scotland. The scotland reference was for Chip who is in Scotland and also posted to this thread.

I'm not sure, Rob, whether epilepsy would be considered to be a disability. I suspect not if it is controlled with medication. A chronic illness to be sure, but the specific clause is written and refers to incapacity. There is no definition of what incapacity means in this case but it does say that someone would probably be considered to be incapcitated if "the person is receiving one (or more) of the following social security benefits: incapacity
benefit, severe disablement allowance, disability living allowance, attendance
allowance, constant attendance allowance, or an analogous benefit; " (section 7.005) or would be entitled to receive such a benefit. In other words, a major disability.

 

[goodtyneguy]

Helena, thanks for your input but my GF and MIL are in England as per the edit at the bottom of my OP. Having said that, what you're saying still applies to the Alzhiemers Society in England so we could try them if needed, thanks. Point taken about rattling cages with the SS

Jennifer, from your knowledge I think we can count my GF's epilepsy out as qualifying as a disability but won't harm to mention it when seeking professional help.

Thanks.

Rob

 

[germain]

Disability definition

Hi
DDA is clear about disability etc.
I used to work for DWP and am certain that even tho' a disability can be controlled by medication it cannot be ignored. Things can get quite complicated but mention of the Disabiity Discrimination Act puts a shot across anyones bows.
regards
Germain

 

[jenniferpa]

The trouble is the legislation says "incapacity" and then fails to provide a definition. I would agree that this quite possibly comes under the category of a disability but is it enough for CRAG? I suspect this is decided on a case by case basis.

 

[goodtyneguy]

Hi
DDA is clear about disability etc.
I used to work for DWP and am certain that even tho' a disability can be controlled by medication it cannot be ignored. Things can get quite complicated but mention of the Disabiity Discrimination Act puts a shot across anyones bows.
regards
Germain

Thank you for your input Germain, that's an interesting slant on the scenario which may unfold and definately one which we will pursue if the circumstances dictate. As Jennifer said whether it will be enough for CRAG is another question. It will probably depend on a number of factors including the strength of our argument and/or the degree of benevolence of the LA officers assessing the case. It's certainly something we will be looking into in order to be prepared.

Rob

 

[goodtyneguy]

The trouble is the legislation says "incapacity" and then fails to provide a definition. I would agree that this quite possibly comes under the category of a disability but is it enough for CRAG? I suspect this is decided on a case by case basis.

This taken from the oficial booklet on charging for residential care of the LA concerned defines "incapacity" as:

"incapacitated means they receive a social security benefit which recognises incapacity or disability, or they would be eligible for one."

I am wondering if this is just their interpretation and therefore challengeable.

My GF receives is a travel pass for free travel on public transport as her epilepsy restricts her from driving, she is also exempt from perscription charges for all medications. Surely the former is a recognision of an incapacity and the latter is a social security in the form of an exemption from paying perscription charges as opposed to receiving money to purchase her medication. I'm of the opinion that their definition is to simplistic, it has left me wondering if their are any other incapacities for which a social security benefit is not payable.