The Legal Position – Residential Care Fees
If someone goes into residential care home then Local Authorities have a legal duty to
provide residential care and recover the cost of the residential care fees where possible.
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The Legal Duty to Provide Care
If someone goes into residential care home then Local Authorities have a legal duty to provide residential care and recover the cost of the residential care fees where possible.
The Charging for Residential Accommodation Guide (CRAG) contains important guidelines about residential care fee charges.
The Legal Basics of Community Care
The law relating to community care is complicated and difficult to access. There are a number of core statutory provisions, and many regulations, directions and guidance, which need to be taken into account when considering the law relating to residential care fees.
The National Assistance Act 1948
The National Assistance Act Act is central to the provision of community care (residential care) and provides legal guidelines on the rights and responsibilities of Local Authorities, in respect of what care should be offered and what payments can be claimed for that care.
The Local Authorities Duty to Provide Care
Under section 21 (1) National Assistance Act 1948 a Local Authority may make arrangements for providing residential care for a person who by reason of age or any other circumstances is in need of care and attention which is not otherwise available to them. This is referred to as part III accommodation.
The Local Authorities Right to Recover Care Charges
Under sections 22(1) and 22(2) National Assistance Act 1948, the Local Authority that supplies accommodation/care is also entitled to recover payment from the person to whom it is given. The accommodation/care should be supplied at a standard rate which reflects the cost of supplying residential care to individuals within the community.
Charging for Residential Accommodation Guide (CRAG)
If you are unable to pay the residential care fees, then the Local Authority must assess your ability to pay by reference to the Charging for Residential Accommodation Guide (CRAG). This is an important document to use when considering the control of and protection of assets.
Don’t be too put off by the legal jargon. Use CRAG for guidance. Obtain a copy of the CRAG guidelines if you are in dispute with the Local Authority about residential care matters
Community Care Services
There are five different categories of community care services and three different types of care homes that can be provided by the Local Authority.
Community Care Provision
The type, range and level of community care services provided by Local Authorities is assessed and falls under five categories. These are: Information, Assessment of need, Domiciliary services, Day Services and Residential Services. By assessing and providing appropriate levels of care, the Local Authority is able to support those in need and meet their requirements with appropriate services and residential care as required.
Care Home Services
The provision of care is carried out by the Local Authority via care facilities that fall under three main categories of care home. These are: Residential Care Homes, Nursing Care Homes and Elderly Mentally Infirm Homes.
Residential Care Homes
This type of home is for people who need general assistance with day to day living, but who have no specific requirement for nursing assistance. The individuals who reside in these facilities are unable to cope with living in their own home, but they don’t have a particular medical condition that needs nor ongoing treatment and nursing. Generally, if you have income and savings then you may have to pay to be in a residential care home.
Nursing Care Homes
Nursing homes are similar to long term residential care homes, but they go a step further, providing help to those who need regular medical and nursing care. In a nursing care home, it is a requirement that a registered nurse be based at the home at all times. If you are in a nursing home then your care could be provided free of charge.
Care Home for the Elderly Mentally Infirm
The third type of care home is for the elderly and mentally infirm. The most common treatment in these homes is the treatment of elderly residents who have serious mental health issues, such as advanced dementia. If you are in a home for the elderly and infirm, then your care could be provided free of charge.
Carefully read and check the Local Authority paperwork and make sure you are receiving the right sort of community care and that you enter the right type of care home.
Local Authority Assessment Procedures
The Local Authority must carry out a needs assessment to assess your needs and the type of services you require and also carry out a means assessment to assess your financial circumstances and your ability to pay for those services.
The Needs Assessment Procedure
It is a statutory duty that the Local Authority carries out an assessment of your circumstances to determine the extent of your community care service needs. The community care needs assessment helps provide the Local Authority with a clear picture of what sort of support may be required.
The Means Assessment Procedure
The Local Authority social services department will also conduct a means assessment. This assessment looks at the services to be provided and collects details of and takes into account your disposable income, property, savings and other assets. This process can be difficult, and most people find it intimidating. People often do not appreciate the importance and potential financial impact of the means assessment, and it is essential to seek professional advice before you agree to any means assessment procedure. Call us for a free no obligation initial telephone chat about this.
Assessment of the Individual Only
If you require care and are being assessed, it is important that only you as an individual are assessed. Make sure that the assets of others, such as your spouse, partner or carers are excluded from the assessment calculations. It is important that if questioned, you only provide information to the Local Authority relating to the assets of yourself.
Negotiating Direct Payments
It is possible for you to make your own arrangements in organising your care, rather than accepting a place in a care facility that the Local Authority specifies. The Local Authority now has the facility to offer direct payments for your care instead of the Local Authority arranging community care and paying the provider direct. If you prefer to make your own arrangements, you might prefer to receive payments direct from the Local Authority and for you to pay your provider direct.
Seek legal advice before you agree to have a means assessment carried out.
Only your personal finances (and nobody else’s) are assessed. Call us for a free initial no obligation telephone chat.
Local Authority Charges for Services
There are some services that the Local Authority can charge for and some that they cannot charge for.
Services That You Could Be Charged For
Services that the Local Authority can charge for include:
- Residential care;
- Home care and home help;
- Day centres;
- Meals on wheels;
- Aids adaptations and equipment;
- Services for carers.
Services That You Cannot Be Charged For
Services that the Local Authority cannot charge for include:
- Assessing need;
- Providing information and advice;
- Occupational therapy;
- Health care provided by the NHS;
- After care services for patients under the Mental Health Act;
- Intermediate care services provided by the Local Authority and the NHS.
Carefully read and check the Local Authority paperwork and make sure you are receiving the right sort of services and that the Local Authority is correctly charging (or not) for those services. If you are in dispute with the local authority, then call us for a free initial no obligation telephone chat.
Choosing the Right Care Home
It is important to ensure you choose a care home you are sure of being able to afford over the long term. If your assets are likely to fall below the Local Authority capital means test limits, apply to the Local Authority for funding as early as possible. This will ensure that the Local Authority will fund your care costs once your financial assets fall below the Local Authority capital means test limits. If you don’t take these steps, then you could find you have to move to another care home or may have to ask your family to help with top ups to cover the costs of your care.
Having a Choice of Care Home
The Local Authority has to allow you to choose the care home you would prefer. However, the Local Authority must first make sure that the home chosen by you is not more expensive than they would normally pay for a home that would meet your needs. In some cases, other people such as your family may want to, or may be asked to, pay top-up fees to cover any extra costs between the cost of a Local Authority or the care home chosen.
Help With Negotiating Care Home Fees
It is possible to ask the Local Authority to negotiate with a care home and pay the fees direct to them. The Local Authority will then ask for full reimbursement from you if you are paying the fees. The advantage of this is the contract is between the Local Authority and the care home which means that a better deal can be registered.
You might want to use a checklist to cover points that are important to you. Consider:
- How do you feel instinctively about the home?
- What do others say about the home? Talk to residents, staff, relatives;
- Are staff adequately trained to care for people with your disability or needs?
- Is appropriate equipment available, e.g. hand rails, hoists, adjustable armchairs?
- Can you keep your own doctor?
- Can your food and dietary needs be met?
- Can your religious or cultural needs be met?
Do plenty of research and visit as many homes as possible before making a decision.
Negotiate a discount or deal for the weekly rate if you are paying.
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Residential Care Fees Protection Specialists
I’m Adrian Chambers and specialise in Residential Care Fees Protection matters. We aim to provide our clients with an outstanding legal service.
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