1. The Local Authority
When a person requires residential accommodation, an assessment of their finances is required in order to determine how the accommodation will be paid for. With the costs of care home accommodation ranging from £400 to £800 per week on average it is not surprising that the rules relating to charging cause much controversy.
The following discusses the rules in Wales for charging for care home accommodation. Although similar, there are separate rules relating to charging for care home accommodation in England .
If a person has capital over £22,500 and is not eligible to receive NHS Continuing care funding they are considered to be ‘self funding,’ meaning that they have to pay the full cost of residential accommodation. There are complex rules relating to what capital is taken into account in order to assess whether a person is self-funding. Some types of capital may be disregarded. For example, a property will not be taken into account for the first twelve weeks that a person is in a Home. This means that, where a person’s main asset is their property and their savings are under £22,500, he or she will not be ‘self funding’ for the first twelve weeks. Furthermore, a property continues to be disregarded if it is occupied by:
1. the resident’s partner; or
2. a relative who is aged 60 or over; or
3. a relative aged 16 or under and a child whom the resident is liable to maintain; or
4. a relative who is incapacitated.
Even if a person is self-funding, there is a still a duty on the Local Authority to provide advice, guidance and assistance on the type of care they require and services available.
If a person has capital amounting to less than £22,500 then their income (apart from a small personal allowance) is paid towards the cost of their care fees and the Local Authority pay the remaining cost. Although this would normally mean that the Local Authority funds the majority of the care home fees, the resident’s wishes and preferences over choice of accommodation should still be taken into account as long as:
1. the accommodation appears to the Authority to be suitable; and
2. the cost of making the financial arrangements would not require the Authority to pay more than it would usually expect to pay having regard to the assessed needs.
Where a person’s preferred accommodation is more expensive than the accommodation proposed by the Authority then he or she may require the Authority to provide that accommodation subject to a third party (often a relative) paying the difference. The ‘top-up’ is the difference between the cost which the Authority would usually have expected to pay for someone with the individual’s assessed need and the full standard rate of the accommodation that the resident prefers. However, the Authority must not set arbitrary ceilings on the amount they would pay and relatives should not routinely be required to make up the difference between what the Authority will pay and the actual cost of the Home.
2. The NHS
There is an overlap between the duty of the Local Authority to provide care home accommodation and the duty of the NHS.
The NHS has certain duties to persons who are the responsibility of the Local Authority or who are self funding. It is the responsibility of the NHS to provide, where necessary, community health services to residents of Local Authority and independent residential care homes on the same basis as for those who live in their own home. For example, the provision of district nurses is paid for by the NHS.
The NHS also has a duty to pay for the cost of providing nursing care by a registered nurse in a nursing home. Consequently, in Wales, every nursing home resident should receive the same contribution towards their fees from the NHS regardless of how much capital they have (in Wales the contribution is currently £117.66 per week).
Furthermore, where a person’s primary need is for healthcare, there is a duty on the NHS to accommodate people in care homes under continuing NHS healthcare guidelines. If a person is assessed as requiring NHS continuing care then the full cost of their care home fees will be paid by the NHS and this does not depend on whether or not someone has capital over £22,500.
Whether a person is eligible for NHS continuing healthcare is often the subject of debate. The Local Health Boards have assessed residents as only requiring NHS funded care (i.e. the £117.66 per week contribution from the NHS) rather than requiring continuing NHS healthcare. Subsequent independent reviews have then assessed the same person as actually having continuing healthcare needs so that the NHS should have paid the full cost of the care home fees rather than the Local Authority or self-funding resident.
At the heart of the issue over who is responsible for paying for the accommodation is the distinction between social care and health care. In the case of Coughlan the Court of Appeal held that the Local Authority can only lawfully fund low level nursing care. The Court indicated that the decision as to whether the NHS or the Local Authority provides the care depends on the overall quality and quantity of nursing required, not the type of nursing services required.
The following conditions may amount to a person having unpredictable, complex and intense health needs which would make him or her eligible for NHS Continuing care funding:
1. poor mobility
2. inability to self-medicate,
3. breathing difficulties,
4. poor sleeping pattern
5. poor skin tissue
6. swallowing difficulties,
7. inability to communicate and express needs
8. high level of confusion, disorientation
9. diagnosis of mental illness or psychiatric illness
10. challenging behaviour, aggression or anxiety
11. risk of causing harm to self or to others
12. being prone to infections
Summary
It is not easy to summarise the rules relating to charging for care home accommodation and professional advice should be taken if you are in doubt. However, as a general rule, where the primary need is a health need, then the responsibility to pay the care home fees is that of the NHS, even where the individual has been placed in a Home by the Local Authority or has capital over £22,500. Where the person’s needs are only ancillary or incidental to provision of accommodation that the Local Authority is under a duty to provide then the Local Authority is responsible for the care home fees subject to a person’s income and capital. Even if the person is not eligible for NHS continuing care funding he or she may still be eligible to receive a weekly contribution to their fees from the NHS if he or she resides in a nursing home and requires the services of a registered nurse.
If any of the above information indicates that you or a member of your family have been incorrectly assessed/charged then please contact us on 01633 227960 or email claire.d@howellslegal.com
This article deals in general with a complex subject. No responsibility for any loss by any person as a result of acting in reliance on this article can be accepted by this firm. The article is written on the basis of the law as at 1 March 2009.
Care Home fees - Who pays them?
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