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Care home fees
Hiya,
I’m not sure if anyone can help with this one. I have a client (deceased) who was in a care home that was being funded by the local authority. The client was receiving a state pension and her contribution towards the costs was calculated. The state pension wasn’t being paid to the care home but into the claimants bank account. The client wasn’t paying her full care home fees and on her death their were arrears of £7000. There is no money in the estate once funeral costs have been paid.
Her daughter was a DWP appointee and had power of attorney.
The local authority has sent a vaguely threatening letter to the daughter stating that “In a case like this where there is an outstanding debt when someone dies and the care fees have not been paid we a duty bound to report this to the DWP as the monies they paid to [the client] were to be used for her care and her care only, and they may want to investigate what the money was used for, but i will await your reply (to the request that the daughter pays the arrears in full) before taking any further action’
I have request clarification and they have directed me to the “Charging for Residential Accommodation Guidance” which, as far as I can see does not cover this situation and anyway would not be DWP guidance.
I would like to be able to assure the daughter that the local authority can’t do anything but is this correct, or is it true that the DWP can investigate why the pension payments were not used to pay the care home fees and, as the appointee, could the daughter be liable.
Many thanks
How long was she in the care home before passing away? Was she placed there by the LA or did they pick up funding later? From what point did the daughter acquire appointeeship and/or power of attorney?
The CRAG guidance is the relevant document but won’t cover this explicitly. The issue is that the alleged failure to use benefits to pay for care means the LA will be on the sticky end of a request for the shortfall from the care home. They will feel obliged to pay up but will feel that they ought to be reimbursed from the estate or the appointee. That’s where it starts to get interesting. Your answers to the questions in the first paragraph will determine what the options might be.
As for their “duty” to report to the DWP. That’s not really relevant to this discussion. The decision that benefits ought to go towards the cost of care when a person is admitted has nowt to do with DWP as far as I am concerned. That’s an agreement between the LA, care home and client. Benefits like RP and PC are not paid for care. So, it’s an interesting threat but carries little teeth. The real issue is whether the LA or care home can recover the costs from the estate. Central to that will be the answers to the above questions and the issue of what the associated reporting procedure is. i.e. how often do the LA pay care homes and how often do care homes check!
You will gather that I have won a number of cases like this where my answer has been something along the lines that any failure to pass across the fees might well be down to an initial failure on the part of the appointee or claimant but it’s then perpetuated by the fact that the LA only paid their balance at certain intervals and the care home probably don’t want to highlight the financial process whereby they and the LA fail to notice this rather obvious breakdown for months and sometimes years.
I had a case where LA were pursuing the son for care home fees which should have been paid for his mother. This had been going on for several years, and LA had never even sent him an invoice or demanded payment until after the death. They were threatening Court action but I suspect may not have liked the possibility of adverse publicity about the laxity of their procedures.
I would like to be able to assure the daughter that the local authority can’t do anything but is this correct, or is it true that the DWP can investigate why the pension payments were not used to pay the care home fees and, as the appointee, could the daughter be liable.
Many thanks
The DWP’s ‘Agents, appointees, attorneys and deputies guide’ gives advice about revoking appointeeship in cases of financial mismanagement or abuse:
‘We are often asked to revoke an appointment because care home fees have not been paid. Once you are satisfied that this is the case then you should take normal revoking action. The replacement appointee is likely to be the LA. There will be no need to visit the customer or the LA; we can accept a BF56 through the post. You may be asked at the same time to take action in relation to the unpaid fees. There is nothing for you to do. If the LA wish to pursue the matter they will need to take action directly against the appointee. If the matter escalates we can cooperate in the investigation but we would not instigate the same.’
I think you should ascertain whether the daughter has signed a contract with the local authority which spells out the care home fees and her mother’s assessed contribution. Did the local authority send invoices regularly to the daughter? Do you know what happened to the money (benefits) which the local authority has assessed as payable? Did the daughter spend it on herself or her mother?
Revoking an appointeeship for someone who has passed away???
What the daughter signed or spent the money on will be interesting but ultimately irrelevant. These cases inevitably highlight lax financial procedures that are not relevant to the DWP whilst the LA and care home won’t want that highlighting through the use of the legal process.
The key questions remain:
“How long was she in the care home before passing away? Was she placed there by the LA or did they pick up funding later? From what point did the daughter acquire appointeeship and/or power of attorney?”
Many thanks for all the info so far.
I’d had a look at the appointee guidance and agree that the DWP are unlike and unable to get involved. The client was in the care home since Jan 2014. I don’t know the full circumstances of the client going into the home, but a financial assessment wasn’t done until some time after she was admitted, the LA are stating that this was de to delays in them getting a copy of the POA, clients daughter says it was LA incompetence. I’m not sure when the financial assessment was done but the daughter has been invoiced for £7000+ for the period from Jan to Nov 2014.
It appears that the client was being billed directly by the care home for some period as there is also an outstanding invoice (in the client’s name) for £1400 from the care home. This debt has been written off as there is no money in the estate.
Client died 29th September 2015
Notes from the daughters case “client had been the carer for her mother who had dementia and was found wandering in the wee small hours. She advises that the medical profession and social workers put her mother in a care home for her own best interests. As client had been struggling to cope with her mother due to her own health problems she did not disagree.” That suggests it was LA who put her in care home - although this may need clarifying.
Oh and there’s no estate whatsoever - it didn’t cover the funeral costs. POA/appointeeship was in place prior to the client going into the care home
Revoking an appointeeship for someone who has passed away???
What the daughter signed or spent the money on will be interesting but ultimately irrelevant. These cases inevitably highlight lax financial procedures that are not relevant to the DWP whilst the LA and care home won’t want that highlighting through the use of the legal process.
Agreed that appointeeship ends at date of death. However we are talking about the public purse here. Are you arguing that because the local authority may have made some mistakes then the debt should be quashed? Why would a contract be irrelevant?
Agreed that appointeeship ends at date of death. However we are talking about the public purse here. Are you arguing that because the local authority may have made some mistakes then the debt should be quashed? Why would a contract be irrelevant?
It’s not so much that the debt should be quashed but who, if anyone, is liable for it. Clearly the estate should be liable for it - but there is no estate. So, like any debt after death, should it be written off or is the daughter as appointee or due to having POA liable for the debt? I imagine there is no definitive answer as the LA could always initiate court action against the daughter to recover the money but I need to advise the daughter if that is likely or not. I don’t believe the fact that the money came from the ‘public purse’ is relevant - either legally or morally!
I’m now fairly sure that, as was pointed out above, the ‘threat’ to refer the issue to the DWP is toothless.
I agree about the toothless threat. I would imagine that the most the LA will be ably to extract from the DWP is the fact that certain benefits were paid at certain times. I would be surprised if the LA did not pursue the debt. Whether successfully or not remains to be seen.
Agreed that appointeeship ends at date of death. However we are talking about the public purse here. Are you arguing that because the local authority may have made some mistakes then the debt should be quashed? Why would a contract be irrelevant?
In this case yes. That is what I am arguing and have done so successfully repeatedly over the years. The irresponsibility with the public purse falls wholly on the LA who should put in place agreed arrangements for the passing over of relevant benefits at the outset of the stay regardless of whether they pay gross or net.
The “contract” if any such thing exists is usually irrelevant because
- the contract is between the LA and the care home and not an appointee or person with PoA. They are reliant pretty much on goodwill for all the talk of contracts.
- there is no money with which to pay the debt from the estate.
- as yet we have no idea whether the person who was appointee was actually appointee or had PoA for the whole of the period in question. Plenty of excellent caselaw on that dating all the way back to Supplementary Benefit.
I have little interest in the public purse argument. That’s for the holders of the public purse to make a case not a WRO. Generally they don’t. Cases like this trigger a kind of muted moral outrage in the finance departments of LAs. However, own house in order first before trying to pursue a third party for money they may not actually have been responsible for. Even if they were it’s hardly going to play well when the LA finance team arrive in court stating that yes they didn’t pick up on this for x months. I’m not aware of any LA that has chanced it in court and won. In the current climate of needing to be disciplined with the public purse??? Hmm, can’t see it.
I understand that the claimant can request that the benefits are paid directly to them rather than the care home/LA. Is that correct? I understand this is what happened in this case - that is what led to the care home debt which they have agreed to to be written off.
The LA debt arose due to delays in calculating the financial liability of the claimant - LA claims with was due to delays with the POA, something the POA would dispute. The debt has been outstanding since Nov 2014 - LA claim this was because the did not have contact details of POA.
So a claimant has an appointee on the basis of mental incapacity to handle their own benefit affairs and yet the claimant requests their benefits are paid direct to them in a care home!!! Yes, it can happen, but… oh dear.
To be fair, I can imagine a scenario in which a delay in PoA would bear on the ability to conduct a financial assessment where for example the claimant was withholding or unable to provide information on income and capital.
The contracts we use are signed by the care home, the local authority and the resident or their attorney/deputy and outline who has to pay what to whom.
The contracts we use are signed by the care home, the local authority and the resident or their attorney/deputy and outline who has to pay what to whom.
And have they ever been tested in a court of law in a non-payment case?