The Dept. of Health has issued new Relative’s Property Disregard guidelines.

This is in response to a recent court case about means test guidelines for property: A daughter successfully stopped the value of her mother’s house being included in care fees means testing.

It means other people may now be able to stop their own family home having to be sold to pay for care.

Let’s assume for the moment that your mother or your father needs full time care in a care home and also owns a property.

Let’s also assume for the moment that your parent is not eligible for NHS Continuing Healthcare funding and that they have to pay for their own care.

Ordinarily, there are certain circumstances in which your parent’s property could be disregarded from means testing.

(By ‘disregarded’ we mean protected from being taken to pay care fees and disregarded under Para 2(b)(ii) of Schedule 4 to the National Assistance (Assessment of Resources) Regulations 1992. )

These circumstances include a situation where:

• your parent’s spouse or partner still lives at the property
• another relative over 60 lives there
• a younger relative still lives there who is incapacitated
• your parent’s former partner (divorced or estranged) still lives there and is a lone parent with a child under 18
• another of your parent’s children lives there and is under 18
• a relative over 60 lives there (or in some circumstances a friend who has been caring for your parent for some time and for whom the property has become their home)
• another person owns a share of the property and does not want to sell

However, there is now a new circumstance in which the property can be disregarded from means testing…

New means test guidelines for property – Relative’s Property Disregard guidelines

In February 2014, Glen Walford brought a case against Worcestershire County Council. She successfully argued that her family home should not be included in any means testing for her mother’s care costs.

The key issue was whether the property was Miss Walford’s main or only home. The High Court judgement concluded that a ‘home’ is a place to which a person has a degree of attachment both physical and emotional.

However, emotional attachment may not be enough on its own; the degree of occupation of the property by a relative is crucial, and yet this occupation does not have to be all the time.

For example, someone who travels a lot, or who is posted overseas as part of their job, but considers the property still their main home, and returns regularly where possible, could now claim the property is their main home, even if they rent other properties in the meantime.

Similarly, someone with a nomadic lifestyle who does not have their own home elsewhere and who considers the property somewhere they will eventually come back to, could also potentially argue that the property should be disregarded in means testing.

Essentially this means that ‘occupation’ is not the same as physical presence, i.e. you don’t have to actually physically live at the property all the time to ‘occupy’ the property.

These new Relative’s Property Disregard guidelines – new means test guidelines for property – also highlight that local authorities should take account of a family member’s changing circumstances in this respect.

Also, there is no need for a relative to have been occupying the property before the person needed care; the purpose of the move will be considered, and also to ensure that a family member does not become homeless if the property is included in means testing.

However, in all this there is of course one vital point to remember:

Issues of mean testing and property disregard are secondary to assessments for NHS Continuing Healthcare; where a person needs full time care on account of health needs, a Continuing Healthcare assessment should be carried out first, before the health and social care authorities ask any questions about a person’s money or property assets.

Read the new Relative’s Property Disregard guidelines here.

Read more about NHS Continuing Healthcare funding for full time care.

UPDATE:

Since this article was originally published, Worcestershire County Council appealed the decision and, unfortunately for the family, the Council won. It means that the property can now be taken into account in means testing. The Court of Appeal decided that a relative must actually be resident at a property at the time a person goes into care in order for the property to be disregarded in the means test. This will come as a blow to many families in a similar position.

In 2013 the charity Independent Age published an excellent report into third party care home top-up fees. It’s worth promoting the report again here, as it contains vital information for all families faced with paying care home top-up fees. (See below for a link to more recent findings, too.)

The report revealed that many care home top-up fees should not be charged at all. It also shows that in many casers local authorities should be meeting the full costs of care.

Care home top-up fees – some key points from the Independent Age report:

• Top-up fees are required only when the person needing care or their family have specifically requested more expensive accommodation. They should not be charged just because a care home costs more than the local authority/council is willing to pay.
• Care home top-up fees should only be paid by relatives who are able and willing to pay them.
• Local authorities are responsible for top-up arrangements. However, many such arrangements are made between a care home and a relative – with the local authority out of the picture.
• Often local authorities fail to direct people towards independent advice; they also fail to explain a person’s right before top-up contracts are signed.
• Many local authorities are in breach of the Choice of Accommodation Directions (LAC(2004)20. These Directions prevent local authorities/councils from asking for top-up fees as a blanket policy.
• If a relative cannot pay third party top-up fees, the local authority is responsible in full for the full cost of care.

These are just some of the many important points that come out of the report. It also names specific councils/local authorities and highlights the degree to which they are ignoring their responsibility towards relatives – and breaking national guidance on third party top-up fees.

So remember these 5 points about top-up fees – regardless of where the care is being provided:

1. They should only be charged if a person is receiving a genuine upgrade in the services they’re receiving.
2. The family must give informed consent before any top-up fees are charged.
3. Top-up fees are voluntary.
4. They are the exception – not the general rule.
5. They should not be requested from families to plug the gap in local authority funding.

One final point – many families are told to pay top up fees before their relative has been assessed for full NHS Continuing Healthcare funding. This is completely the wrong way round. Read more about care fees and NHS Continuing Healthcare.

Remember that if you do receive NHS Continuing Healthcare funding, this cannot be topped up – and no one should ask you to. Top up payments are for social care (local authority care) only. It is unlawful for NHS Continuing Healthcare funding to be topped up. The NHS Choices website reinforces this point:

“Is it possible to pay top-up fees for NHS continuing healthcare? No, it is not possible to top up NHS continuing healthcare packages, like you can with local authority care packages. The only way that NHS continuing healthcare packages can be topped up privately is if you pay for additional private services on top of the services you get from the NHS. These private services should be provided by different staff and preferably in a different setting.”

You’ll find more here about Independent Age’s findings on top up fees

What’s your experience with top-up fees?

How do care fees fit with our duty to care?

A friend of mine, during an unexpected visit to hospital in another EU country, had a conversation with one of the nurses about the care system in the UK.

My friend explained to the nurse that older people in the UK are forced to sell their homes to pay for the essential healthcare and nursing care they need. Not only that, they are forced to hand over their life savings and everything they may have wanted to leave to their children.

The nurse asked, “But how does that fit with our duty to care for those people?”

Good question. And it’s one that many UK families ask every day – and especially those who have come face to face with the ageist and budget-motivated funding approach that is being used by many health and social ‘care’ authorities. Healthcare, it would seem, has often lost the desire to actually care.

Since when did the NHS Constitution limit free healthcare to younger people only?

Deceit and ageism is sadly all too apparent when it comes to NHS care for the oldest generation, people who are often the most vulnerable and ill. For those needing full time care, healthcare (just like for other people) should be provided free of charge. The NHS Constitution clearly outlines this, confirming that NHS care should meet the needs of everyone, that it be free at the point of delivery and that it should NOT be based on ability to pay.

One of the care funding mechanisms for full time care is NHS Continuing Healthcare. But even if a family is aware of this funding, assessments are often carried out incorrectly and health needs are ignored, resulting in NHS care funding being declined. Obstacles and delays are often put in a family’s way by the NHS and by local authorities, many families are simply told by all and sundry their relative ‘won’t qualify’ – or they are simply ‘overlooked’.

The stark reality when an older person needs care is that it’s no longer their health needs that dictate what the state should provide; instead, it is what’s in their wallet.

It will come as no surprise to those locked in battle with the NHS on behalf of an older relative that the free healthcare available to most people in the UK – the same free healthcare the law specifically provides for – is often illegally withdrawn when the authorities know it’s for an older person, and especially when the authorities know that person has a house. As a result, those older people are made to pay for healthcare and nursing care.

People need to know why long term care fees are a con – before it affects their own family

The principle of free healthcare explains why long term care fees are a con. Care providers need to be paid, no question. But by whom?

Nursing care is free in the UK. Logic therefore dictates that any fees charged to an individual by a nursing home for nursing care are inappropriate. Indeed, logic also concludes that there should be no difference between residential fees and nursing fees – at least not to the person needing care.

Few other, if any, sections of the population are asked about money when they access healthcare, and yet older people are almost always asked to pay for care – before their health needs have even been assessed.

We need a tsunami of media coverage to expose what goes on in NHS Continuing Healthcare

NHS Continuing Healthcare funding has been in the press a fair bit over the last year or so, primarily in account of the questionable care fees reclaim deadlines set by the Dept. of Health in 2012.

But a bit of press coverage here and there is a far cry from what’s really needed to help the wider population understand what is likely to lie ahead for their own older relatives.

Many charities are now promoting the issue more widely, which is great, but still most people in the UK believe you always have to pay for care when you get old. That is, after all, what the state tells us.

The issue of care fees are likely to affect most families at some point, and people need to be aware and informed – now. Instead, we have Government ministers attempting to distract people from the real issues in ‘photo opportunities’, rolling up their sleeves and being filmed visiting or ‘helping out’ in a hospital, proclaiming of course what a wonderful institution our NHS is.

It doesn’t fool the exhausted families who, every day, are fighting the fierce protectionism of NHS assessors and budget holders on behalf of those they love – vulnerable older people who have already paid for their healthcare and nursing care their whole lives through taxation, and yet this cowardly healthcare system sees them as easy prey.

By ordinary people spreading the word about Continuing Healthcare funding at every opportunity, we can help ensure that more people realise what’s going on. It’s important that people know their older relatives don’t necessarily have to lose their homes to pay for care.

If you’re fighting a battle for NHS Continuing Care funding, you’ll find lots of useful information on our website and blog, and if you need step-by-step guidance through the Continuing Healthcare assessment process, take a look at our e-guide, How To Get The NHS To Pay For Care. It shows you what to do – and what not to do.

Your care funding application and appeal is much easier with the right notes to hand.

When you’re acting on behalf of a relative who needs care – whether that care is full time or otherwise – there are so many things to think about.

You’re probably visiting your relative regularly, making sure their care seems appropriate, resolving any problems, making sure they have the things they need, managing their finances, keeping an eye on their house – all sorts of things.

If you’re also applying for NHS funding to cover care fees, this can add another thick layer of responsibilities and time commitments.

One of the things that can help, particularly in an NHS Continuing Care funding application and appeal, is to keep a journal or diary. When the NHS makes decisions you disagree with, and you decide to challenge those decisions or launch a Continuing Care appeal, the details you record in your journal now will save you a lot of time later on.

The more information you  jot down each time you speak to or receive communications from people in the health or social care authorities, or from the care home or care agency, the quicker you’ll be able to put a response together when you need to.

If you are your relative’s formal representative, for example you hold a power of attorney, be sure to ask for copies of assessment notes plus the rationale for any funding decisions already made.

Keep general notes about:

• your relative’s specific diagnoses and their general progression over time
• dates and details of any previous assessments for NHS Continuing Healthcare – when they took place, who was present, any available ‘scores’ and what the outcome was
• any NHS or local authority maladministration that you’re aware of – and/or things that just don’t seem to have been done right, including things that NHS or local authority staff may have said (or not said) to you.
• delays and obstruction in the assessment process
• misstatements of fact in the assessment notes
• any intimidation or inappropriate pressure put on you to give up your battle for funding
• dates and times of any relevant medical or healthcare appointments and other meetings to do with your relative’s health needs, health decline, care provision or funding
• any relevant conversations with staff and/or therapists from different bodies/departments (NHS, local authority or private), including physiotherapy, occupational therapy, speech therapy, nutrition, etc. – and what was discussed
• other appointments, conversations and phone calls
• notes on anything that doesn’t seem right to you about a lack of statutory funding and/or care provision
• any other information or notes from relevant clinicians, doctors, nurses or therapists that you think will strengthen your case.

If you’re asking for daily care notes, care records or charts, or other information you need for a care funding application or appeal, and you’re told the information is not available, ask why this is not available and be sure to note down what you were asking for, who you spoke to, when you spoke to them and the reason you’re given for the information being ‘unavailable’.

Be sure to also keep copies of any hospital/GP/care home correspondence and/or letters or health reports from relevant consultants, doctors, clinicians or therapists.

When you’re going through a funding battle, especially an NHS Continuing Healthcare application and appeal, all these notes and details will be invaluable, especially if you keep them up to date and record them at the time things happen.

If you’re not sure what should – and shouldn’t – happen in a Continuing Healthcare funding assessment, you may find our step-by-step e-book helpful: How To Get The NHS To Pay For Care.

How has keeping a diary helped you in a battle for funding?