Deprivation of assets Adults Operations

Transcription

1 Deprivation of assets Adults Operations Care Act 2014 Charging for care and support: practice guidance This practice guidance on the identification and management of deprivation of assets builds on the text included in the Adults Operations charging policy, and other guidance documents in relation to financial matters, that can be found in the Professional Zone of the West Sussex Connect to Support website. The charging arrangements for people requiring residential and non-residential care and support services funded by West Sussex County Council are set out in statute in the Care Act 2014, in the Care and Support Statutory Guidance (updated in March 2016), and in Regulations. Deprivation of assets is specifically covered in Annex E of the Care and Support Statutory Guidance. Version: 1.0 Effective from: June 2017 Next review date: June 2020 Signed off by: Tracie Thomas Title: Head of Safeguarding and Adult Social Care Date: 23 rd May 2017

2 Practice guidance: Deprivation of assets 2 Status New Version number 1.0 Issue date 1 st June 2017 Authors Greg Slay, Quality Assurance Lead, Adults Operations; Paul Young, Adult Income Manager, Adults Operations Review by Legal Services Paula Jones, Solicitor (14 th March 2017) Owner Mark Howell, Director of Adults Operations Signed off by Tracie Thomas, Head of Safeguarding and Adult Social Care Date 23 rd May 2017 Issue Date Author Principal Changes number 1.0 June 2017 Equality and diversity In line with the requirements of the Equality Act 2010, the County Council will ensure that all customers of its services are treated with fairness, dignity and respect irrespective of any of the following protected characteristics: age, race, gender, disability, sexual orientation, gender reassignment, marriage or civil partnership status, pregnancy/maternity status or religion and belief. Note: wherever shown in this document, the word he or his should also be taken as referring to she or hers. Feedback: We welcome feedback about our policies, procedures and practice guidance. If you have any comments about this document please as.webpage.requests@westsussex.gov.uk Copyright West Sussex County Council / Version 1.0 / 1 st June 2017 Page 2

3 Practice guidance: Deprivation of assets 3 Contents Page 1. Introduction 4 2. Deprivation of assets definition and examples 4 Case example: Mrs A and her new car 5 3. Deprivation of assets - the County Council s position 5 4. Deprivation of assets transfer to third parties 6 Case example: Mr B and his contribution towards care charges 5. Deprivation of assets investigation process 7 6. Debt recovery by the County Council 8 7. Sources of further information 9 Legal status of this practice guidance Regulations setting out local council responsibilities in relation to charging policies for social care services have been issued under Sections 14(5) and 17(7) of the Care Act 2014 and are known as the Care and Support (Charging and Assessment of Resources) Regulations These Regulations are effective from 6 th April These specific Regulations must be read in conjunction with the relevant sections and Annexes of the Care Act s Care and Support Statutory Guidance. The Statutory Guidance was updated in This local practice guidance expands on the text set out in sections 13 and 14 of the Adults Operations Charging Policy. This is available in the Professional Zone on the West Sussex Connect to Support website. Copyright West Sussex County Council / Version 1.0 / 1 st June 2017 Page 3

4 Practice guidance: Deprivation of assets 4 1. Introduction 1.1 Local authorities have a duty to arrange care and support for those with eligible needs, and a power to meet non-eligible needs. In all cases, a local authority has the discretion to choose whether or not to charge under section 14 of the Care Act 2014 following a person s needs assessment. Where it decides to charge, it must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 which determine the maximum amount a local authority can charge a person - and have regard to the Care and Support Statutory Guidance. 1.2 The County Council has decided to charge customer contributions and this has been agreed at a corporate level. The detail of how much to charge is different depending on whether someone is receiving care in a care home, or in their own home, or in another setting. 1.3 The specialist financial assessment of income and capital is a task that is undertaken in West Sussex by Welfare Benefits Advisers acting on behalf of the County Council. The assessment can be light touch if the circumstances support such action, but reference has always to be made to Annex B (the treatment of capital), Annex C (the treatment of income) and Annex E (deprivation of assets) of the Care Act s Care and Support Statutory Guidance. 2. Deprivation of assets definition and examples 2.1 There have been numerous cases where a person has tried to deliberately avoid paying for care and support costs through depriving themselves of assets capital or income. 2.2 People use a variety of different techniques to reduce their assets, both income and capital, including: Making a lump-sum payment to someone else, for example as a gift (and made without application of the HM Revenue and Customs rules about the making of such gifts); Giving away or selling the right to an income from an occupational pension; Making substantial payments at short notice, such as on a series of expensive holidays abroad within a short period, or a cash purchase for a new car - and which are out of character with previous spending patterns for the person; Purchasing an expensive painting using savings and then giving it away to a friend shortly after moving into a residential care home; Selling assets for less than their market value; Transferring the title deeds of one or more properties to someone else; Copyright West Sussex County Council / Version 1.0 / 1 st June 2017 Page 4

5 Practice guidance: Deprivation of assets 5 Placing financial assets into an irrevocable trust fund (that is, a fund that cannot be altered) such as a fund to provide a future lump sum for children or other relatives; Converting assets into another form that would be subject to a disregard under the financial assessment, for example personal possessions; Reducing assets by living extravagantly, for example through gambling or always paying to use taxis to travel long distances rather than travelling by own car or by public transport; Using assets to purchase an investment bond with life insurance, such that the intended recipient of the bond is another person. Case example: Mrs A and her new car Mrs A has 20,000 in savings. Three weeks ago she used half of this to pay outright for a new car. Two weeks later she entered into a residential care home on a permanent stay basis. She decided she would not keep the car after all, so gave it away to her only daughter. Assuming Mrs A knew, when she bought the car, that she would be moving into a care home a fortnight later, then a deprivation of assets should be considered. 2.3 Questions of deprivation will only be considered where the person ceases to possess assets that would have otherwise been taken into account for the purposes of the financial assessment - or has turned the asset into one that is now disregarded. 3. Deprivation of assets - the County Council s position 3.1 The Council will consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred: Whether avoiding any care and support charge was a significant motivation; Whether at the time of the disposal of the asset the person had a reasonable expectation of a need for care and support; and Whether the person had a reasonable expectation of needing to contribute to the cost of any eligible care needs. Copyright West Sussex County Council / Version 1.0 / 1 st June 2017 Page 5

6 Practice guidance: Deprivation of assets 6 4. Deprivation of assets transfer to third parties Case example: Mr B and his contribution towards care charges Mr B, who is widowed, has 23,250 in his savings account. He has no other assets. One week before going into a care home on a permanent basis he decides to split this in three and give it all away. He gives 7,750 to each of his two daughters and his son. The purpose of doing this was to avoid having to make a financial contribution to his care home fees. Had Mr B not given this money away, the first 14,250 of his savings (known as the lower capital limit for the purpose of charging) would have been disregarded in any case. He would then have been charged what is referred to as a tariff income on his savings between 14,250 and 23,250 (the upper capital limit ). This is determined through the financial assessment of the person s assets and income - such as welfare benefits or a pension - and undertaken by a Welfare Benefits Adviser. The charge levied is based on what the person is assessed as being able to pay. Assuming tariff income of 1 for every 250 of savings between 14,250 and 23,250, this means that Mr B should have paid 36 weekly towards the cost of his care on top of the financial assessment calculation relating to his income. After ten weeks of care, he should have paid 360. As he had deliberately deprived himself of his assets, his daughters and son are each liable for 120 towards the first ten weeks of their father s care. 4.1 Where the person has transferred assets to a third party to avoid charges levied by the County Council for care and support, the third party will be liable to pay the Council the difference between what it would have charged and did charge the person receiving care. 4.2 If the person has transferred funds to more than one third party, each of those people will be liable to pay the Council the difference between what it would have charged or did charge the person receiving care in proportion to the amount they received. Third parties will not however be liable to pay anything which exceeds the benefit they have received from the transfer. 5. Deprivation of assets investigation process 5.1 It is up to the person to prove to the County Council that they no longer have the asset(s) and the reason they no longer have it. If this is not forthcoming, the Council will undertake a financial assessment of the person on the basis that they have the asset(s). Copyright West Sussex County Council / Version 1.0 / 1 st June 2017 Page 6

7 Practice guidance: Deprivation of assets Where information comes to the attention of any member of staff undertaking a Care Act or financial assessment, on behalf of Adults Operations, the relevant information needs to be collated and passed to their (County Council) team manager and to the team manager of the Welfare Benefits Advisors (employed by Capita and working on the Council s behalf). 5.3 These two managers will discuss and agree whether this information does indicate a deliberate deprivation of assets. It may be quite clear that no deprivation of assets has in fact occurred. More likely, there may be insufficient evidence one way or another and more evidence needs to be collected to inform a decision. Where it appears to be a complex matter and requires a legal steer to move it forward, advice will be sought from the County Council s solicitors. 5.4 For deprivation of capital assets, acceptable evidence of disposal is considered (paragraph 8, Annex E, Care and Support Statutory Guidance) as: A trust deed; Deed of gift; Receipts for expenditure; and/or Proof that debts have been repaid. Questions to be asked to determine a deprivation of assets In considering whether a deliberate deprivation of capital has occurred it will be necessary to ask these questions (paragraph 11, Annex E, Care and Support Statutory Guidance): Was avoiding the care and support charge a significant motivation? At the time of the disposal of the capital, could the person have had a reasonable expectation of the need for care and support? Did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs? In considering whether a deliberate deprivation of income has occurred it will be necessary to ask these questions (paragraph 15, Annex E, Care and Support Statutory Guidance): Was the income the person s own? What was the purpose of disposal of the income? At the time of the disposal of the income, could the person have had a reasonable expectation of the need for care and support? Copyright West Sussex County Council / Version 1.0 / 1 st June 2017 Page 7

8 Practice guidance: Deprivation of assets The collated deprivation of assets (capital or income) information will inform the subsequent financial assessment that is required as well as any corrective action in terms of debt recovery. 5.6 Following completion of the financial assessment the person will be formally informed of the result in writing by the relevant Operations Manager (Adults ) - who will take into consideration any advice from Legal Services and be clear in the correspondence the evidence on which such a decision is based. 5.7 If further information is required about the nature of any deprivation of assets, this will not delay the contribution towards the cost of care and support being levied to the person. Until such time as the matter is fully resolved, an interim contribution will be determined based on the available evidence. A letter explaining that further work is taking place, and that future contributions may change, will be sent to the person. 5.8 Once the nature of any outstanding deprivation of assets has been fully determined, the final contribution to care and support charges will be identified and the person informed in writing in line with business as usual processes. 6. Debt recovery by the County Council 6.1 The Care Act 2014 consolidated the Council s powers to recover money owed to it that has not been paid. Ultimately, the Council may take the person - or their representative - to Court to recover any outstanding debt. This will, however, only be done as a last resort. 6.2 All invoices, issued four-weekly (with the exception of those relating to deferred payment agreements which are issued for information only), are subject to the County Council s standard debt recovery process. Payment is always due within 30 days of the date of the invoice. If payment has not been received within that period then an automatic first reminder is generated and sent giving the debtor a further 14 days in which to pay. If payment is still not received then a final reminder is generated requiring payment within 7 days. 6.3 Responsibility for recovery of any outstanding debt then passes to the County Council s Debt Recovery Officer who will discuss with those involved the methods by which the debt can be repaid. This discussion may result in an affordable instalment programme being agreed. In deciding how to proceed with debt recovery, the County Council will always consider carefully the circumstances of the case before deciding on a specific course of action. 6.4 The actual debt recovery investigation process followed by the County Council will be conducted in line with Annex D of the Care and Support Statutory Guidance. It will also be informed by the Regulation of Investigatory Powers Act Copyright West Sussex County Council / Version 1.0 / 1 st June 2017 Page 8

9 Practice guidance: Deprivation of assets 9 7. Sources of further information 7.1 The Professional Zone on the West Sussex Connect to Support website contains all the policies and practice guidance documents that are likely to be needed by staff in Adults Operations or working on its behalf. 7.2 The Care Act 2014 and its accompanying Regulations and the Care and Support Statutory Guidance can all be accessed through the gov.uk website. The Care and Support Statutory Guidance includes specific chapters on the subject of charging, together with more detailed guidance in Annexes A F. 7.3 Guidance on the application of the Regulation of Investigatory Powers Act 2000 is accessible in an updated version from the gov.uk website. Copyright West Sussex County Council / Version 1.0 / 1 st June 2017 Page 9