My father in law died at the end of March. If you or your family require specialist Community Care Law advice on deprivation of assets, please contact us on 01273 609911, or email info@ms-solicitors.co.uk to see how our Education and Community Care Law team can help. Transferring income from a property or business rental to someone else. Deprivation of assets means you have intentionally decreased your overall assets, in order to reduce the amount you contribute towards the cost of care services provided by the local authority. Whether non-payment was due to circumstances beyond the person's control (for example changes in the person's mental capacity, an administrative error or a hospital admission). Practice Note. It may be useful to refer to our list of Abbreviations Used in Community Care Law and Abbreviations Used in SEN and Disability Law. If you or a relative has been accused of a deliberate deprivation of assets, get in touch with the team at Steene Law now on 0203 653 0625. Hi. There was a deliberate avoidance of payment; or. Assessing income, cash savings and investments is usually relatively straightforward: it is the assessment of any value locked-up in property and land – and particularly within the family home – that tends to be problematic, partly because of misunderstanding about how the assessment rules apply but also, increasingly, because of attempts to put in place structures which are … Attention to the "guarantees" provided by state law is at least as appropriate in a case involving an alleged deprivation of "property." During divorce, both spouses are usually required early on in the case to fill out a financial declaration that discloses all sources of income and assets. This topic discusses the effect of asset disposal on: 1. an income tested person, and 2. a person's deemed income assessment. Where there is a Court order or judgment for payment, but the person or carer has not complied with it, the Local Authority can approach the Court and request they issue enforcement proceedings. Equally, if your relative wishes to gift money or possessions to relatives and you want to find out how to do this safely, without interference from social services in … Did the person have a reasonable expectation of needing to contribute t… It remains to be seen whether the Local Authority or the Department for Work and Pensions will agree with this view or conclude that there has been deprivation of assets for their purposes. It is clear that the hobby kit was respondent's "property." But it also is clear that under state law no remedy other than tort law protects property from interferences caused by the negligence of others. Goldberg v. Kelly, 397 U.S. 254 (1970), is a case in which the Supreme Court of the United States ruled that the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires an evidentiary hearing before a recipient of certain government welfare benefits can be deprived of such benefits.. It therefore makes sense that the Local Authority agrees with the person how to prevent further debt from accruing and that they are able to make the payments they have been financially assessed as needing to make towards the cost of their Care and Support. If the asset or income has been transferred to someone else, seek to recover charges from that person. The Care Act is clear that this is not acceptable. In the Health, Welfare and Deprivation of Liberty Report: an important guest article from Inclusion London, and reflections from Tor and Alex on 100 issues. “I have already recommended you, and would always recommend you to anyone seeking advice regarding the funding of care homes, deprivation of assets, etc, and rules relating to power of attorneys.”. If Social Services have wrongly found that you or a relative has deliberately deprived themselves of assets, we can provide specialist advice and representation. Whilst the power to recover debt exists in the Care Act there is no duty to do so and in some cases the Local Authority may choose not to recover the debt, or to recover only part of the debt. CJSA/1425/2004 — contains a comprehensive review of previous case law regarding deprivation of capital and supports the repayment of credit card debts to avoid incurring high interest rates… Charge the person as if they still possessed the asset or income; Charge the person as if they still possess some of the value of the asset or income; or. Giving away or selling rights to an occupational pension income; or. Broadly, anyone that has capital assets over the amount of £23,250 will be expected to meet the costs of their own care (unless there is proven eligibility for NHS Continuing Care). For information about the process of making an application to the County Court see Annex D of the Care Act Statutory Guidance. If they see significant transfers or reductions in assets, Social Services may allege that there has been a deprivation of assets to avoid paying for care. Advocacy to support the person to understand the options available; Supporting a family member to gain a Power of Attorney or Deputyship; The Local Authority applying to gain a Deputyship; Establish whether there is a person legally authorised to make financial decisions on their behalf (for example a Deputy appointed by the Court of Protection or a Power of Attorney); and, Liaise with the person legally authorised to make financial decisions and establish whether any of the out of Court arrangements are appropriate and agreeable; or, Request family apply to the Court of Protection for a Deputyship; or, Where there is no family or if family choose not to do so the Local Authority should consider applying to the Court of Protection for a Deputyship; but. Read our cookies policy. If the person or carer cannot prove that they no longer have the asset or income in question the Local Authority is able to treat them as still possessing the asset or income. Whether or not a person or carer is found to have deprived themselves of an asset or income to avoid Care and Support charges should not affect the amount or nature of the Care and Support service they receive from the Local Authority. Deliberate deprivation of assets is when the local authority deems that a person has deliberately disposed of assets to increase their eligibility for social care funding. The expectation under the Care Act is that the Local Authority will explore all reasonable avenues before using its powers to seek formal debt recovery. The following are some of the ways that debt recovery issues can be resolved out of Court: There is guidance published by the Ministry of Justice (Practice Direction-Pre-Action Conduct) to support the Local Authority in negotiations it has and action it takes. Deprivation of assets applies when you intentionally reduce your assets, such as money, property or income, so these won’t be included when the council calculates how … The financial assessment process under the Act is clear and fair and a person or carer should never have to contribute more than they can afford towards the cost of their Care and Support. Deprivation of Property The Constitution clearly requires that the government must provide due process before it deprives a person of real or personal property. Where the conflict between the Local Authority and the person in relation to debt recovery make a Deputyship application inappropriate, the Local Authority should apply to the Court of Protection to appoint an independent Deputy. If the person or carer can prove that they no longer have the asset or income in question they must then prove they have not intentionally deprived themselves of it in order to avoid Care and Support charges. No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. This means that someone who needs care and support can be told they do not qualify for Social Services funding, even if they no longer have enough money to pay for their care. The Coronavirus Act introduces new Care Act Easements and Covid19 Hospital Discharge Requirements which will have a significant impact on the provision of social care and NHS Continuing Healthcare. The term ‘deprivation of assets’ is used by Local Authorities (LA) when they believe someone has made a gift or transfer of assets to a third party, usually a relative, to avoid or reduce their liability to pay for care. There are various methods of enforcement and the Local Authority will need to think carefully about which may be the most appropriate taking into account the person's circumstances and their own responsibilities to the person. ; and 3. Examples when the Local Authority may choose not to recover debt include: The Care Act recognises that the recovery of debt from those who are receiving Care and Support is a sensitive issue and when considering local policy reminds the Local Authority that it is bound by the public law principle of 'acting reasonably at all times' as well as human rights legislation and the duty to promote individual Wellbeing. But property owners have a right not to be deprived of property except in terms of law of general application coupled with a guarantee against arbitrary deprivation in terms of s25 (1) of the Constitution . To answer your urgent questions please read our latest information. If Social Services believe deliberate deprivation has occurred, they will include the value of the assets that are no longer owned when carrying out the financial assessment. In that case Deprivation of Assets is irrelevent. The Local Authority should ensure that a mental capacity assessment is carried out where there are concerns about a person's capacity to make financial decisions or be involved in a financial assessment process, and that appropriate action is taken to ensure they are legally represented. If the person or carer can prove that they no longer have the asset or income in question they must then prove they have not intentionally deprived themselves of it in order to avoid Care and Support charges. For information about Deferred Payment agreements see the Deferred Payment Agreements and Alternative Financial Arrangements section of this guide. Hope I’m in the right section. [6] It was common ground that the effect of a sale in execution was to deprive a judgment debtor of its property and that the pertinent rules of court, including rule 46(12), fell for the purposes of s 25(1) to be characterised as ‘law of general application’. Possible debts must be discussed with the person or their representative at the earliest opportunity; The Local Authority must act reasonably at all times; Arrangements for debt repayment should be agreed between all the relevant parties; Court action should only be considered after all other reasonable avenues have been exhausted. However, such steps do not come without risk and should be considered very carefully.Under the current legislation, Local Authorities will pay care fees on a means tested basis where an individual’s assets fall below £23,250. The UK government spends around £10bn on care for the elderly every year. This means that if the person continues to default on their Care and Support costs after this date a new debt recovery process will need to begin. The greater the person's need the more effort should be made to resolve the issue outside of Court. Tameside Metropolitan Borough Council (19 014 246) The Health and Social Care Ombudsman ruled that for an individual to be found deliberately depriving themselves of funds, then the Local Authority must apply the test below: If avoiding paying for care fees was … There are 2 methods in the statutory guidance that are effective in reducing the likelihood of the need for debt recovery: Charging and Assessing Financial Resources, Deprivation of Assets and Enforcement of Debts, Regulation of Investigatory Powers Act 2000, Deferred Payment Agreements and Alternative Financial Arrangements. That they no longer possess, benefit from or have beneficial rights to the asset or income; and. A SUMMARY OF THE CASE LAW ON ITS APPLICATION. There is separate guidance under the Regulation of Investigatory Powers Act 2000 that sets out the limits to Local Authority powers to investigate and local authorities should have regard to it before considering any investigations. The Local Authority should consider whether: The statutory guidance outlines the following general principles that the Local Authority should bear in mind when approaching debt recovery: It is important that the Local Authority considers the full range of options before going to Court. A person can deprive themselves of assets (capital) in many ways, but common approaches may be: It is also possible for a person to deliberately deprive themselves of income, for example: Sometimes a person will intentionally falsely advise the Local Authority that they no longer possess, benefit from or have beneficial rights to an asset or income in order to try and avoid making a financial contribution to their Care and Support services. That they have not intentionally deprived themselves of the asset or income. When a person asks Social Services to help arrange or pay for their care and support needs, Social Services carry out a financial assessment. Making a lump sum payment from savings held to someone else, for example as a gift; Substantial sudden expenditure that is out of character with the persons usual spending habits; Transferring the title deeds of a property to someone else; Putting assets into a trust that cannot be revoked; Converting assets into another form that would be disregarded under a financial assessment (for example, using savings to purchase jewellery or a car); Spending assets through a change in lifestyle (for example through gambling excessively); or. Penalty for hiding assets during divorce. On 21 August, the NHS published its “Hospital Discharge Service: … Read more…, Re ACC & Others is an important case for Professional Deputies as it hampers their ability to secure and retain valuable NHS Continuing Healthcare funding awards for their clients. person intentionally deprives themselves of or decreases their assets to reduce the amount they are charged for their care Peter King, Partner at law firm Nockolds, analyses why county councils have not been enforcing deprivation of asset regulations as rigorously as they could be in recent years. The Care Act expects the Local Authority to communicate effectively with the person or carer about their debt and to utilise its social work skills wherever appropriate when working with a person or carer to resolve the issue of debt recovery. The Care Act is clear that people should pay a fair contribution to the cost of the Care and Support/Support services they receive. Nonetheless sometimes a person will intentionally deprive themselves of an asset they have or an income they receive in order to try and avoid making a financial contribution to their Care and Support services. At the point the capital was disposed of could the person have a reasonable expectation of the need for care and support? 0. The value of disposed of assets (1.1.D.210) is subject to income deeming provisions if the value of these assets (1.1.A.290) exceed the disposal free areas. Two main things will be considered to determine whether deliberate deprivation of assets has taken place: You must have known at the time you got rid of your property or money that you needed care and support. 39 Essex Chambers regularly produces case reports, articles, newsletters and seminar across a range of areas. The timing of the disposal of the asset. If Social Services believe that the gift or transfer was made to protect family inheritance, they can refuse to pay any of the care costs and take action to recover the asset from the person who received the gift. This is sometimes known as a means test for paying for care. An individual is liable to contribute towards the cost of their care if their assessable income and capital exceeds the prescribed threshold. The Local Authority should clearly discuss with the person or their representative at the outset that Care and Support is a chargeable service and that where the person has been assessed as being able to afford to do so, they will be required to contribute to the cost of that care and how they will be expected to do so; and. I agree. THE DEPRIVATION OF CAPITAL RULE . If the Local Authority has evidence that a person has intentionally deprived themselves of an asset or of income for the purpose of avoiding care charges it can take steps under the Act to recover lost income from the person or the third party that the asset or income has been transferred to. Income Support, Housing and Council Benefit, income-based Jobseeker's Allowance, income-based … The Local Authority should first consider and decide whether it is appropriate to seek to recover the debt at all. Although the court did not expand in FNB on procedural unfairness as an independent ground for a finding that a deprivation is arbitrary, this point was picked up in later case law. If no or little effort to do so has been made, the Court may hold this against the Local Authority when making an order for payment of costs incurred by the Local Authority in taking the matter to Court. By signing this disclosure in divorce proceedings, each party is swearing under oath that what they complete is accurate. We use cookies to make the site easier to use. When the Local Authority is satisfied that there is no valid reason for the person or carer to no longer have the asset or income it should consider at what point the asset or income was deprived: In some cases the Local Authority may wish to conduct its own investigations into whether a deprivation of assets or income has occurred, rather than relying solely on the declaration of and evidence produced by the person or carer. The most appropriate are likely to be one of the following: The County Court judgement on the case is final and when received the case is closed. Where the amount of debt is small and the costs of recovery would be disproportionate; and. Click here to download the HWDOL report. Care costs will differ depending on the chosen care home and facilities but it is not uncommon to see costs of £750 to £1,000 per week for residential care. This type of case does not come to court very often, but what I think these judgements show, particularly the rejection of the appeal, is that the courts will look at all the facts in these cases, and will not be sympathetic where it considers there has been any deprivation of assets. The Constitutional Court decided that as a general rule a deprivation of property is ‘arbitrary’ as meant by s 25 when the ‘law’ referred to in s 25 (1) Avoiding paying for care must have been a significant reason for giving away your home or reducing your savings. It is clearly the case that Local Authorities should not simply assume that a gift is a deprivation. Statutory Guidance on care funding clearly states that people should be treated with dignity and respect and are free to spend their income and assets as they see fit, including making gifts to friends and family. Whether avoiding the care and support charge was a significant motivation; 2. If the person deprived themselves following a financial assessment the Local Authority should determine whether avoiding a Care and Support charge was a significant motivator; If the person deprived themselves following or during a needs or carers assessment, did they know that the outcome would be that they would be likely to have Care and Support needs and were they aware that there may be a charge to pay. Information on how to calculate the TOTAL deprivation amount for a person is provided in the referenced topic. Not all deprivations will be with the intention of avoiding charges for Care and Support and the Local Authority must be satisfied that there is no other valid reason why the person or carer no longer has the asset or income before progressing any financial claim. When a local authority carries out a financial assessment for care it will ask about previously-owned assets… It is quite common for Social Services to make an assumption about deprivation without considering the factors that are set out in law and guidance such as: Expert Community Care Law advice should be sought at an early stage. It is common for people to give money or assets to family members at any stage in their life. IN WELFARE BENEFITS. This will ensure that you have the right information about gifting and deprivation of assets law so that you or your family do not face problems when you need Social Services financial assistance to pay for your care. 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