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May 2014

As compiled by Professor Eileen Evason for Â鶹ԼÅÄ Radio Ulster’s On Your Behalf

1. The following paragraphs provide a very general summary of the charges people may have to pay if they need care in a nursing or residential home on a permanent basis. Older people and their relatives should be aware that the law here is very complex and the rules which apply now may not be the same as those in operation when, and if, care is required.

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2. The law governing charges for nursing home/residentialÌý care is to be found in the Health and Personal Social Services (Assessment of Resources) Regulations (Northern Ireland) 1993, as amended, the Health and Personal Social Services (Northern Ireland) Order 1972, as amended, and the Health and Personal Social Services Act (Northern Ireland) 2002.

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Additionally, at points, the rules governing access to Income Support - the means-tested benefit administered by the Social Security Agency - are similar to those covering help with nursing home/residential accommodation charges.

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The application of the rules relating to charges will therefore be informed by case law in relation to the Income Support (General) Regulations (Northern Ireland) 1987 as amended –see in particular regulation 51.

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Guidance on the application of the law, which is binding on Trusts, is to be found in the Charging For Residential Accommodation Guide which is issued by the Department of Health and Social Services and Public Safety. Clearly older people and their relatives cannot be expected to be familiar with all of this, but it is very important that they check that anyone they seek advice from is fully aware of all of these provisions.

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3. Responsibility for helping persons with the cost of nursing home/residential accommodation rests with local Health and Personal Social Services Trusts. It is important to note that – apart from the provisions relating to nursing care set out in paragraph eight - help with costs is only available, and the rules below only apply, to persons assessed by their Trust as needing such care and where the Trust has a role in arranging it.

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Where people choose independently to enter such accommodation – again apart from paragraph eight - this is a purely private transaction. Assistance may be provided at a later date when resources diminish but there is no provision to the effect that Trusts must take on the costs of care in such circumstances.

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4. Where a person is assessed as needing nursing home/residential accommodation and enters such care on a permanent basis, Trusts are required to assess the contribution the person placed can make to the cost of their care.

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It should be noted that, although the position is different in England, in Northern Ireland Trusts have no discretion in this matter, must follow the very precise guidance issued by the Department and must charge people accordingly.

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Where the person placed has capital- for example, savings, property, stocks and shares, ISAs – which altogether exceed £23,250, then they will be liable for the full cost of their care.

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Where capital is between £23,250 and £14,250 they will be assumed to have a weekly income from this of £1 for each block of £250 and this will be added to their actual weekly income.

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Capital below £14,250 is disregarded completely - that is, no account at all is taken of it. Where capital is owned jointly-for example, a savings account in the names of a married couple/civil partners – then an appropriate share – in this case 50%- will be taken into account.

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Where the capital of an individual consists of property and this is jointly owned with someone other than a spouse/civil partner-for example, a mother and son jointly owning the home they live in-the position is more complicated. Assuming the mother had capital to the value of 50% of the worth of the house would make little sense.

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Half of a property is unlikely to have any value at all and in such cases people should seek advice if they are unhappy about the value placed on their asset.

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5. Where people have capital under £23,250 the amount charged depends on weekly income. In assessing weekly income most benefits and other income are taken into account and assumed to be available to meet the cost of care. There are three main exceptions to this rule.

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First, in the case of persons placed who have occupational or personal pensions only half of these will be taken into account if the person has a spouse/civil partner still living in the community.

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Secondly, £24.40 of the person’s weekly income is ring-fenced so that they can meet personal expenses.

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Thirdly, persons entitled to the savings credit within Pension Credit will have up to, in the case of a single person, £5.75 disregarded. The figure for a couple is £8.60.

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6. Considerable controversy and misunderstanding surrounds the treatment of the family home in the assessment of resources on admission to care.

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The position is as follows. Where a person is admitted to nursing home/residential accommodation on a permanent basis the value of the property will be taken into account -and count as capital - except in the following circumstances.

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First, no account should be taken of the value of the home for the first twelve weeks after admission. This is to ensure that people do not have to sell their homes immediately to cover care costs when it might turn out that, after a few weeks, they are well enough to return home.

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Secondly, no account should be taken of the value of the home if it continues to be occupied by the spouse/civil partner of the person moving into the nursing/residential home or a relative over 60 or a relative of any age who is disabled.

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Additionally, the value of the home may be totally disregarded if it is occupied by someone who does not fall into one of these categories but it would be unreasonable not to take them into account. This is a matter at the discretion of the Trusts.

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The example quoted in the Guidance is that of a carer who has given up his/her own home to provide help to a person subsequently placed in nursing home care.

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7. There is now much more awareness of the possibility that people may have to sell their homes to cover their care costs. Many people are, however, under the misapprehension that they can protect their homes - or other assets - by transferring them to others, or disposing of them in some other way, in good time.

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This is simply not the case and it must be emphasised that the provisions that exist in tax law relating to transfers seven years before death have absolutely no bearing on the rules governing charges for care.

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The legislation noted in paragraph two above contains two central provisions relating to the attempts people may make to protect their assets.

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First, under Article 101A of the 1972 Order, where a person transfers an asset whilst in nursing home/residential accommodation - or in the six months preceding admission - Trusts can take action to recover the costs of care from the person to whom the asset was transferred.

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Secondly, and much more broadly, Regulation 25 of the 1993 Regulations provides that where someone has deprived themselves of capital by transfer, or other means, they can be deemed to still possess that capital and charged accordingly.

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It is important to note that the regulation does not contain any time limits so action taken at any time can come within the scope of this provision. It is also important to stress that Article 101A and Regulation 25 only apply where the person who transferred the property, set up the irrevocable trust, or whatever, did so in order to reduce their liability for charges.

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The key issue is therefore motivation. At the same time, however, if people seek advice on how to protect their assets then they can be said to be placing themselves within the scope of the deprivation provisions.

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Older people and their relatives should be wary of any adviser who suggests there are easy ways round all of this.

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Finally, it should be noted that similar rules apply with regard to deprivation of income.

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8. From October 2002 many persons in nursing homes have been eligible for help with the cost of nursing care. It should be noted that nursing care is a narrow term and the provisions do not cover the charges for accommodation and for personal care which make up the total charge for nursing home care. Help is available to all persons – regardless of whether or not their care is arranged by a Trust- who meet the criteria.

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First, the person must be assessed as actually needing nursing care by the Trust.

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Secondly, to be eligible for the maximum amount of assistance, which is currently £100 a week, the person must be paying the full cost of their care.

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Thirdly, where people are getting a contribution from their local Trust towards the cost of their care but that contribution is less than £100 they should get an addition to bring the Trust’s contribution up to £100.

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9. Finally, it should be emphasised that the position in Northern Ireland is very different to that in Great Britain. Periodically, the British press carries accounts of people being wrongfully charged for their care. These situations are a consequence of the very different arrangements in England and Wales and have no bearing on the entitlement of people requiring assistance in Northern Ireland.

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Sources of further information

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1.Ìý The guidance to Trusts is contained in the Charging for Residential Accommodation Guide which is on the Department’s website- .

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2.Ìý The Belfast Law Centre has a community care lawyer - 02890 244401

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