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FAQs: Social Care Funding & Deprivation Of Assets

Community Care Law solicitors answer frequently asked questions about Social Care funding and deprivation of assets.

What is deprivation of assets?

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.

The LA has a duty to help a person with their social care costs when their assessable assets drop to £23,250, at which stage the LA will undertake a financial assessment or means test.

If the LA decides that a person has intentionally ‘deprived’ themselves of assets, the financial assessment will treat the person as still owning the value of that asset. This is called ‘notional capital’ and the LA will treat the person as self-funding even though they do not have assets above £23,250.

Whether someone has deprived themselves of assets or not is a complex issue and may depend on the timing of the transfer, the reason for the transfer and whether the need for care was foreseeable before or at the time of the transfer.

I am property and finance Attorney for my aunt who pays for her own care and currently has savings of £100,000. I have used some of her savings to give my two siblings £3,000 a year for the past five years because they are unwell and to make use of the Inheritance Tax rules. I plan to do the same this year. Could I be accused by the Council of deprivation of assets?

Even though your aunt has enough money to pay for her care fees, it won’t be long before her savings fall below the ‘upper capital limit’ of £23,250. As her Attorney, you will then need to ask for a Social Services financial assessment to help pay for her care fees.

Because you have gifted money that your aunt would otherwise have had available to pay for her care, Social Services may consider this a ‘deprivation.’ This may mean that your aunt has to keep paying for her care from the value of the money that was given to your siblings, even though she does not have it.

Rules about paying for care differ from Inheritance Tax Planning rules. You should not make any further gifts of £3,000 to your siblings until you have taken advice from our specialist Community Care team.

My wife and I combined our assets with my disabled father’s assets to buy a house that we could all live in together, to care for him. Our new house had to be put in mine and my wife’s name to get a mortgage. The Council have said that my father has ‘deprived himself’ of the value of his old property and that he must pay for his care fees. He pays £500 per week for agency carers to visit him while I am at work and cannot afford these fees alone. How can I get the Council to overturn a deprivation decision?

The Council believe that your father’s decision to sell his house and invest the proceeds in a property that is not in his name was an ‘intentional deprivation of assets’.

However, as your father is living in the property and as you are providing his care when you are not at work, this deprivation decision seems unfair, as if he was still living in his own house, his equity would be ignored. Also, your father retains an interest in the property although it is not in his name.

Your father has a right to challenge the Council’s decision through their complaint process. He will need to give a detailed explanation of the circumstances in which he didn’t put his name on the legal title.

There are some complicated trust law arguments that you could use, so you should seek specialist advice to show the Council that this is not a deprivation of assets.

Eight years ago, after my husband died, I sold our house and gifted the sale proceeds to my children to help them buy their own property. I moved into rented accommodation and have been using my savings to pay for a care agency to help me at home. My memory is declining and I’ve been told to move into a care home. The Council did a financial assessment and say that the gifts to my children were a deprivation and that I will have to pay for my care home fees or get the money back from my children. Are gifts ignored by Social Services under the Inheritance Tax Rules after seven years?

The rules governing gifting and local authority financial assessments are not the same as the Inheritance Tax rules.

Unfortunately, there is no “7-year rule” when it comes to paying for care and the Council can go back as far as they wish when investigating deprivation of assets.

However, from what you have said, the Council may have failed to apply the correct legal test about deliberate deprivation. This test should look at your health at the time and what your intentions were.

My mother and father are retired and in reasonable health for their age. I am their only child. They recently attended an asset protection seminar. They want to transfer their house into my name for tax purposes and keep a ‘life interest’ in the house so they can remain living there. Their house is worth £400,000. Could they be accused of deprivation of assets if one of them becomes unwell and has to go into care?

If one or both parents ask the Council for help paying their care fees in the future, a Social Services’ financial assessment will look at their assets. Despite the explanation that they are doing this for tax purposes, the Council may be suspicious and believe that your parents’ real motivation is to avoid paying care fees in the future.

If your parents keep their home in their own names and one of them did need to go into a care home, provided the other one was still living at home, the value of their property would be disregarded in full under Social Services’ financial assessment rules.

However, if the title is transferred to you, then at best, there will be a costly and long dispute with Social Services who are likely to make a deprivation allegation.

Paying for care fees can be complex and difficult to navigate, so we recommend seeking advice to help your parents make an informed decision, including understanding the risks.

My Auntie Chris is waiting to be discharged from hospital after a bad fall. She needs a rehab or temporary Nursing Home placement until she is well enough to return home. The problem is that Chris cannot pay for her care because a year ago, she invested all of her savings and the sale proceeds of her home in a scheme that turned out to be a scam. Will Social Services accuse my aunt of deprivation of assets if she has been scammed?

It is possible that Social Services will decide that your aunt has deprived herself of assets, because some Local Authority Financial Assessment teams do so whenever a large amount of money has been spent or given away.

However, in your aunt’s case, it would be hard for the Local Authority to show that the legal test for deprivation is met. Your aunt’s decision to invest everything she owned was unwise, but her motivation was not to avoid paying for her future care and support needs.

I am Deputy Property and Finance for my sister. She was severely injured in a road traffic accident in which her husband died. Their sons were 16 and 18 at the time. I have used some of the income and capital that my sister inherited from her husband to pay my nephews’ university living costs and other expenses that I have considered my sister would have wanted to fund. I have had Court of Protection permission for this. Can I continue to use my sister’s money as Deputy to support her children without Social Services alleging deprivation?

Social Services might say this is deprivation because your sister had a need for care and support when the payments to her son began. They could say you should have kept her money to pay for her care.

However, they will have to show that her motivation was to avoid care costs. As your sister’s Deputy, your motivation was to support her sons through a difficult period to ensure they could continue their education after their parents’ accident. The Court of Protection permission may be helpful evidence if the Council makes a deprivation decision.

Social Services do not always take a common-sense approach when looking at gifting. It is important to obtain specialist advice to protect your position as Deputy.

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 find out how our Community Care Law team can help.

 

 

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