Will help come?

Care funding, an issue that is always a concern for my clients, has been on my mind again recently, as we wait for HM Treasury to publish its Spending Review 2015:
'A country that lives within its means'.

The King's Fund, an independent charity working to improve healthcare in England, has made a written submission to the treasury, which makes for uncomfortable reading. The submission notes that:

• Spending on adult social care has fallen by 9 per cent in real terms between 2009/10 and 2013/14;

• £2bn of support from the NHS budget stopped this fall from being 14 per cent;

• There has been a fall of more than 25 per cent in the number of people aged over 65 receiving community-based, residential and nursing care services, with much stricter eligibility criteria in place; and

• These reductions have occurred even as the aging population has increased the need for care.

We know that the government has pledged an extra £8bn a year for the NHS by 2020, but it has shelved the 'care cap' - the centrepiece of its care reforms and a manifesto pledge - and has provided no such assurance for social care. The worry now is that access to social care and the quality of the care provided will deteriorate.

Current standards can't be maintained without funding, and those who do not qualify for state support are still being charged significantly more than those whose care home places are funded by their local authority.

I have seen this in practice, with my client JT. The local authority arranged for her to move in to a residential care home, for which their weekly rate of £399 accrued against the value of JT's property. As soon as the property was sold (and the debt to the local authority was repaid) we were asked to sign a private contract with the care home, and the weekly rate increased to £650.

It isn't an unusual model, but the £251 a week difference in fees being paid by private residents at the care home is necessary to fund the gaps in the system. It wasn't long before JT's capital reduced to £23,250 and the local authority had to step in again to support her place. At no point did her assessed needs change. She was
in the same room at the same care home throughout.

A recent case involving Torbay Council (R (on the Application of Torbay Quality Care Forum Limited) v Torbay Council [2014] EWHC 4321 (Admin)) highlights that local authorities have even taken the higher rates paid by self-funding residents into account when setting their 'usual costs'. In this case, Torbay Council determined the care home would need less from them because of the subsidy it was getting from private residents!

Since April 2015 however, local authorities aren't required to set a 'usual cost'. Instead, there will be the 'amount specified in the adult's personal budget', and this amount should be enough to ensure adequate supply of services to meet assessed eligible needs. Annex A of the Care Act's statutory guidance sates:

'In all cases the local authority must have regard to the actual cost of good quality care in deciding the personal budget to ensure that the amount is one that reflects local market conditions. This should also reflect other factors such as the person's circumstances and the availability of provision. In addition, the local authority should not set arbitrary amounts or ceilings for particular types of accommodation that do not reflect a fair cost of care.'

Sadly, my client died earlier this year, and I wasn't able to have the argument with the care home and the local authority about the £251 'subsidy' she appeared to be paying. Mine won't be the only client facing this inequality though, and I just hope the spending review provides the additional funding so clearly needed. 

Sofia Tayton is a partner and head of care and capacity at Lodders Solicitors

She writes the regular in-practice article on care and capacity for Private Client Adviser