The Community Care [Residential Accommodation] Act came` into effect on 11 August, 1998. It clarifies the law concerning the amount of a person’s capital which a local authority may take into account when determining their claim for assistance with payment for their care: home fees.
The act does not change any existing rules used by a local authority but puts onto a statutory basis he court of appeal decision in R v Sefton Metropolitan Borough Council ex parte Help the Aged (1997).
This case attracted a lot of adverse publicity for 5efton last year when they adopted a controversial policy in order to prioritise claims by elderly people under the National Assistance Ad 1948 for help with funding their care fees.
The particular cases in Sefton arose from applications from “self funders”, people who had gone into residential homes of +heir choice using their own funds. They only involved the local authority’ when their money had either fallen below the capital limits set out in the guidelines. These limits are currently: in excess of £16,000 notional capital a person must fully fund their own fees; below f10,000 notional capital the local authority must fully fund the care fees.
While recognising the applicants’ entitlement to help, Sefton placed them in a low category of priority as they were :’In a “safe and appropriate environment”. Sefton would, therefore, only fund such cases when the elderly person was an “emergency”, which they defined as being when the applicants funds had run down to £1000.
The court of appeal closed this loophole and held that local authorities must apply the :guidelines and that they were not entitled to provide their own scale, for judging ability to pay.
This decision is now contained in the new Act. While the Act does therefore make it clear that a local authority cannot use any other criteria for care home fees it does not necessarily provide any good news for the elderly.
Following the earlier’ “Gloucestershire” decision, local .authorities may still take their own` financial resources into account when assessing and meeting care needs.
Furthermore the act does not solve the practical problem of elderly people being assessed and then being put onto waiting lists for their care needs: to be funded. .The latest guidance notes, issued to local authorities concerning the funding of care needs, state that a• local authority should do all that is reasonably practicable to prevent the applicants funds falling below the levels set out in the guidelines. This wording is ‘much too imprecise, ensuring as it does that an elderly vulnerable person may well have’ to engage in lengthy legal battle with the local : authority to determine the meaning of these words., Commenting on the Act, Paul Bennett of PPP Lifetime Care, said: “The rules have not changed but in effect it has just become impossible for a local authority to ignore the means test limits without breaking the law. The Act reaffirms the means-test nature of long term care provision and hence the value of long term care insurance for those who would be. liable to pay their own care fees in Full.
Tish Hanifan is a barrister and director of education and training for IFACare