Jean-Yves Gilg

Editor, Solicitors Journal

The 'benefits' in deputyship standards

The 'benefits' in deputyship standards


Following the introduction of new standards, professional deputies must get up to speed to navigate the entitlements minefield, writes Stewart Stretton-Hill

In July 2015 the Office of
the Public Guardian (OPG) published a set of standards that apply to all professional deputies in Court of Protection work. The new standards, as the OPG states, set out 'what is expected of professional deputies [to identify] where deputies are falling short'. Similar issues arise and standards apply for any client whose affairs are handled under a lasting power of attorney
(LPA) or enduring power of attorney (EPA).

The standards highlight the importance of having proper knowledge of state benefits:

'1a (4) Identify, review, and secure all benefits the client may be entitled to…

1b (2) Ensure that staff hold skills and knowledge of benefits through regular training and updates (including criteria for eligibility and how to apply)...

4 (5) Ensure the deputy and all members of staff delegated with deputyship responsibilities know how to get appropriate advice and expertise on social security benefits, including eligibility criteria.'

Benefits are a minefield but a deputy who delays in making
a claim or fails to consider an appeal where benefits have been refused may find themselves falling short against the standards, and the OPG may 'take the necessary steps to put things right'.

While a study of all state benefits is beyond the scope of this article (or, indeed, anything short of a massive tome), deputies should particularly be alive to potential changes to attendance allowance (AA) and the pitfalls of continuing healthcare (CHC) funding.

Attendance allowance

On 17 December 2015 the government announced proposals to change AA.

AA is a 'free benefit': it is not means tested, it is not taxed, and it is available to anyone over the age of 65 who needs help with personal care due to a physical or mental disability.

An individual providing care for someone receiving AA can claim carer's allowance (CA). In essence AA is a passport for CA.

The government proposes to devolve the AA budget to local authorities, effectively adding the funds to local care budgets. Individuals would no longer be able to claim AA in their own right, with the knock-on effect, potentially, of denying their carers the automatic right to CA. These proposals may seriously impact on vulnerable clients' ability to maintain their independence.

A consultation 'in the new year' has been promised, no changes will be introduced until April 2018, and existing claims to AA will continue to be honoured. Accordingly, the prudent professional deputy should consider their clients' positions now, lodging claims for those who may be entitled to AA to ensure they do not miss out if and when changes are introduced

CHC funding

Many people do not qualify for local authority-funded care.
(Will this mean they would not also qualify for the equivalent to AA under the new proposals?) As a result, they fear they must pay for their own care, but an often overlooked benefit is CHC funding.

If a client has a 'primary health need' (assessed by a detailed matrix) they may qualify for CHC funding. CHC funding is provided by the NHS and it is not means tested.

If CHC funding is granted,
the NHS is expected to arrange, fund, and provide for all of the individual's needs. It does not matter whether those needs are health related or social care related.

From a financial perspective, CHC funding is the 'holy grail' as the NHS pays for all the client's care without contribution, but it is a double-edged sword and has its drawbacks.

First, the individual's care needs will be reviewed by the NHS, which may assess that the individual does not require as much care as they would be willing to pay for privately. If receiving CHC funding, the individual cannot 'top up' the care provision out of their own funds unless the private care element is clearly separate from the funded care so that the individual is not paying for the cost of an NHS service.

Second, individuals and their families have less influence over where the care is provided and what care the individual receives. The NHS must take into account the individual's and their family's views but it may not always be possible to give effect to their wishes.

Third, while an individual can request a personal health budget (essentially an allocation of the funds available to them under CHC funding) to directly arrange care themselves, those funds are unlikely to go as far as they would under the control of the NHS because of its buying power.

Finally, there arises the question: if there is an issue surrounding CHC funding, would this fall within the remit of a financial deputy or a welfare deputy? The national framework and decision support tool for CHC funding only refers to a welfare deputy holding the relevant authority but it clearly is a financial matter.

With the introduction of the OPG's standards document, professional deputies must get up to speed on entitlements and recognise when to ask for specialist third-party assistance to navigate the minefield.

Stewart Stretton-Hill is a senior associate at Irwin Mitchell @irwinmitchell