On discharge from hospital following a serious illness or injury, a patient will often have ongoing care needs. The local NHS health authority may have a duty to provide services or facilities for the ongoing care of the patient (NHS continuing healthcare), or this duty may fall on the local authority social services department in the area where the patient lives (social services funded healthcare).

In this article, Julia Debiec from Stewarts and Emma Yemm from Wilsons consider the financial assessment process for social services funded care and how to challenge a decision.

If the care falls to be provided by the local authority, it has a general duty to assess whether a person has needs and, if so, what these needs are. If, following this assessment, their needs are found to be eligible for support, they are otherwise unmet and the person cannot afford to pay for those needs themselves, they will be entitled to local authority support. The local authority must then determine the cost of meeting the unmet needs. This cost is known as the ‘personal budget’.

However, the local authority has the power to recover money from the patient where they are able to contribute towards the cost of their care and support.

A financial assessment or means test looks at how much money and assets a patient has and works out how much the person will have to pay towards their care. The more money and assets they have, the more they will be expected to pay.

The financial assessment process

The financial assessment will likely take place at the same time as the needs assessment.

If a patient’s capital is above £23,250, they are likely to have to pay their care fees in full. If their capital is under £23,250, they might get some help from their local authority but may still need to contribute to the fees.

Capital can take any number of forms (for example, savings and stocks or shares) but is distinguished from income by reference to the fact that income is a regular payment in respect of a period (for example, pension, wages or benefits).

Capital is likely to be any asset that is not income.

It is important to remember that the approach and guidance may differ between local authorities.

A Financial Assessment Officer from the council will ask a patient for the following information:

• earnings
• pensions
• benefits (including Attendance Allowance or PIP)
• savings
• property (including overseas property)

What the local authority will take into account will likely depend on whether the needed care is being provided at home or not. For example, if a patient needs care to stay in their own home, the means test shouldn’t include the value of their property. However, if they need to move permanently into a care home and their partner or other specified relatives are not living in the property, the test will include the value of their share of the property.

How much will a patient have to pay?

After the means test, the local council should give a patient a written record of their decision of what they will have to pay, what the council will pay and how they have calculated these amounts.

As above, how much a patient will have to pay will depend on:

• what type of care and support they need
• their personal circumstances.

For example, if a patient goes into a care home, they should not be left with less than £28.25 a week after any contribution to their care fees; this is known as a Personal Expenses Allowance.

What if a patient gives away some of their money?

A patient may think about giving away some of their savings, income or property to avoid paying care costs, such as by making gifts to relatives or charity.

If the council thinks a patient has made the gift to avoid paying care fees (known as deprivation of assets), they may assess the patient’s finances as if the patient still had the money or property they have given away.

The local authority can go as far back as they think is reasonable to explore whether a patient has the capital and income to fund their own care. If a patient sells their house, for example, and was receiving care or had reason to believe at the time of sale that they will need social care, the local authority would be entitled to review their eligibility for funding.

The local authority, however, needs to explain the reasons for its decision, and it is not enough to say the decision is in line with the guidance. It will need to explain why this is the case. Following previous ombudsman decisions, it will need to follow the Care Act 2014 guidance and, specifically, address the following two questions:

1. Was avoiding the care and support charge a significant motivation in the timing of the disposal of the asset, and at the point it was disposed of did the person have a reasonable expectation of the need for care and support?
2. Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

If you disagree with the local authority’s decision, the first step is to request a formal decision from it as to why it considers there to be a deprivation of assets.

Challenging the decision

A patient may wish to either challenge the local authority’s decision directly with the local authority or make a complaint about how their financial assessment has been dealt with. A complaint can be made directly to the local authority or the Local Government and Social Care Ombudsman. However, the relevant local authority’s complaints procedure must be followed before making a complaint to the ombudsman.

The procedures differ between local authorities but usually include two or more stages. Each stage is operated by a more senior member of staff than the last stage. The local authority will usually provide its written response to the complaint and confirm if it can be escalated to another stage of the procedure.

The ombudsman has to give a local authority a reasonable chance to consider any complaint made to it and respond to it. It is usually recommended to allow up to 12 weeks for a full response to a complaint. If a patient contacts the ombudsman at the same time as or shortly after making a complaint to their local authority, it is unlikely the ombudsman will consider it at that time.

The Local Government and Social Care Ombudsman is a free service. If a patient makes a complaint and challenges the local authority’s decision, this will not involve any costs.

More information about the complaint process can be found here – Home – Local Government and Social Care Ombudsman.

Julia is a pro bono adviser at Stewarts, assisting people who have sustained serious injury or critical illness with a range of legal issues.

Emma is a chartered legal executive in the Mental Capacity team at Wilsons LLP. She has experience advising on social care funding, navigating the Care Act 2014 and challenging health and social care plans. Emma can be contacted on 01722 427 623 or at Emma.Yemm@wilsonsllp.com.