The first ever proper plan to pay for sustainable social care? Hmmm. Cap it a Little? Or Cap it a Lot?

Warning: this is serious, informed commentary – not politics!

The Conservative Party’s proposals on social care [DID!] revolve around aligning the means testing rules for domiciliary and residential care charging.

Firstly this will mean that one’s share in the value of one’s house will be counted in the calculation of one’s means, even though one is still living in it – and needing to spend money on it, and despite living there alongside a partner and other family members. This will increase, markedly, the number of home owning and needy people, more of them elderly than any other kind of client, being charged significant or full cost for their care for the first time. It will make it much less sensible to pay off one’s mortgage, too!

The manifesto does not say anything about disregards of the house, or even about the State waiting for repayment where surviving partners or other family members living in the house are concerned. Jeremy Hunt must have said something about that in trailing the proposals the night before on TV, so he may know better – but if there is no provision for that disregard and deferral until other people’s later deaths, it stores up a tremendously divisive issue for the consultation that would have to be conducted first (well, AFTER the election, no doubt).

Secondly, it is proposed that everyone will be left with as much as £100,000 and receive care ‘for free’, after depletion of one’s assets to that much higher level than the current minimum threshold of £14,250, below which care is not paid for out of one’s capital at all.

The £100,000 referred to is to be ‘the floor’, according to the manifesto – not the ceiling, meaning that nobody will be paying for services out of capital with less than that sum. This section is replete with confusion.

Nothing was said about paying out of ongoing received income, as happens in a care home setting: Mrs May said ‘NOTHING will be paid [by elderly people] whilst they are still alive’ when launching the manifesto – so that aspect of the proposals will need careful attention at consultation.

The absence of any detail about an upper ceiling (if this is the floor) is puzzling: Mrs May referred to the new threshold as quadrupling the current one – seemingly referring to the UPPER threshold of £23,250. But that is not the point at which care becomes FREE at all (whatever journalists insist on writing in so-called ‘briefings’); it is the point above which one pays the FULL cost of one’s care in a care home, instead of getting ANY local authority subsidy, via a charge from the arranging council, for LESS than the full cost – and above which, one CAN lawfully be told to go off and buy it for oneself (unless one is mentally incapacitated).

So, either there has been a mistake there in the manifesto writing, and the new threshold is meant as a ceiling, below which one’s capital will still be counted as tariff income and thus relevant for ongoing charges for at least a further period, until one reaches a MINIMUM threshold – or it really is meant as a floor, and no ceiling is planned. That would make no sense.

Thirdly, the manifesto suggests the option of extending deferred payments for care, to cover home care costs – so that one can consent to placing a legal charge on one’s house for securing the loan to cover the cost but still stay at home and receive chargeable services, there.

However, these schemes can already be extended to home care, under the Care Act 2014 – in the discretion of the council, for that purpose, as well as for residential care, albeit that the value of the house is not currently counted. It is thought that the reason they are not used in this way, in practice, is because councils cannot afford to pay for care up front, at the low level of interest that the deferral is allowed to attract. We have heard more this week from various finance bodies saying local government would have to be allowed to borrow in order to finance this level of contracting up front for people for ALL that care – care home AND home care. It is hard enough for them to meet the demand for deferred payment schemes for residential care clients, and nothing has been said about the funding for local government of this new proposed level of loan under-writing obligations.

Fuelling deprivation of assets disputes?

The alignment of the two charging schemes immediately presents a strong incentive to pass the equity in one’s house ON to one’s closest relatives, before or very early on in one’s deterioration or concern about the future, and a nationwide crossing of one’s fingers that one’s offspring will ‘do the right thing’, if one becomes needy. The way in which a trend in that direction would fit with rules on tax on discretionary trusts set up during one’s lifetime is also a very difficult topic – a field day for lawyers.

The alternative is having faith in the idea that the State will still provide what could still be described as a decent safety net. If no changes to funding going INTO the sector are made alongside these proposals, that would be a risky bet for middle-aged Middle Englanders, of whom I am one!

Getting rid of one’s lifetime security, in order to preserve it for one’s offspring, will also give rise to more widespread accusations of deliberate deprivation of assets – and legal difficulties – because aligning the two charging systems would mean extending the current residential only ‘deliberate deprivation of assets’ provisions into the lives of less dependent people who are still trying to live normal lives in the community – where their money remains, in theory, their own, to spend as they like.

When people do choose to rely on the council for home care, they must still be able to spend their own money on their less pressing needs, or wants, and contend that it should be counted as disability related expenditure and thus get their charging assessments reduced – a point not covered in the manifesto, and one that will fuel much controversy, in practice.

The proposals would necessarily entail two further changes: regular revision of one’s financial assessment by reference to how much one actually has left, instead of notionally left – meaning many more charging officers need to be employed – and a proper national policy on the extent to which one can legitimately carry on treating oneself or one’s relatives to nice things and experiences, once one needs care.

This doesn’t sit well with the duty in the Care Act to promote well-being in all that a council does!! It doesn’t sit well either, with the Conservative ethos of ‘small government’!

This focus on who’s disposing of, or spending money, and how, and why, all the time, will likely turn councils into the enemy of many MORE of the people whom they are trying to support with care – the antithesis of the intentions of people who framed the Care Act to encourage people to look at the Council as an expert friend when in need, for everyone, no matter what their asset base.

A journalist asked Mrs May what the justification was for different financial consequences for people with parents suffering from dementia as opposed to those whose parents die suddenly of a heart attack, and she did not actually reply. That is where the reference in the press to a dementia tax comes from.

Another irony is that the well-off, with any chance of leaving £100,000, will probably take actual note of these provisions, whereas when the threshold was a very low one, the thought of turning to the State was probably not on their radar at all. The provisions and the very public debate about them, NOW, may well alert the better off to the financial advantages of claiming NHS Continuing Health Care, as a means of scotching the social care charges altogether – especially in cases of chronic long term degenerative diseases such as dementia.
That is not what any health and social care integration project really needs right now, as conflicts over a bright line between the two statuses are the very quickest way to personality-driven hostilities between generally poorly informed staff at that interface, in CCGs, CSUs and councils.

Deferred payment schemes and the absence of financial services products through which to finance alternative options for buying care

Nobody has to sell their property even NOW, under the current legal framework, to fund their care.

Deferred Payment Schemes

There are already deferred payment schemes in operation, secured by a charge on the property, when a person needs to pay for care in a care home. Stephen Webb has FOI’d councils this week and found vast differences in the extent to which a deferred payment would seem to be available in the real world, although it is a mandatory option for someone who wants one and qualifies with regard to sufficient equity in their property. So the legislation already makes councils the behind-the-scenes owners of properties with low interest rates, and makes them have to pay the costs of care up front. For people preferring to stay in their own home, the sad fact is that insurance or bond-based products have not been forthcoming from the financial services and equity release market for people to buy into.

I think that that is partly because of the impossibility of distinguishing between a want and a need, let alone between what should be free response by community health care services to an NHS health care need, and what should be chargeable as social care if provided by the State. The insurance market doesn’t have the public law legal acumen to become embroiled in that sort of debate, especially not if replicated in hundreds of distressed households up and down the country.

No detail has been given about how the commercial attractiveness of the notion can actually be increased for the market’s providers; and without that, people won’t be able to avoid lumbering their partners and families with the cost of care.

Carers’ Unpaid Leave…

Finally, a new statutory entitlement to carers’ leave – unpaid – is promised – so that one can be assured of a return to work when compassionate leave is no longer needed, will be seen to hurt business in terms of skills loss. It will force more people on to Carers’ Allowance, too, as they have to live on something, and put up assessment and personal budget numbers for carers under the Care Act.

But the greater concern is surely the disproportionate impact on women, and gender equality in society generally?

It is still the position in this country that women are more often carers than men, and women are often the lower paid of a couple, making it make sense for the woman to be the one who gives up work.

I think that the underlying economic reality is that carers, in the main, women, will be persuaded for the good of their families they must go back to being the heart of the home and provide the care, or even stay with a partner whom they no longer wish to be with, in order to preserve the assets for the children.

What was not mentioned in the manifesto?

No commitments with regard to clarifying the ambiguity as to the sleep-in time counting rules, for national minimum wage levels – which are crippling the sector at the moment, and embarrassing HMRC inspectors; no commitment to banning councils from commissioning from agencies that use zero hours contractors or agencies that don’t pay the living wage. And no mention of putting back any of the funding that has been taken out over the last 5 years, and contributed to the crisis that the sector is in, so far as insufficient money even to meet statutory duties is concerned. No reference to THE CAP, until we were later told it was there all the time, in the backs of the authors’ minds…


Further comments

Post code differentials

Local Authorities use national guidance with minimal underpinning in regulations, for charging for home care services. They are allowed to use their discretion and local charging schemes vary. Aligning the approach to the counting of one’s house towards the means assessment, is not going to change local variations in other respects so care costs will still depend on where one lives and the politics of one’s local area.


Is this a resurrection of the Dilnot proposals?

The Care Act Dilnot provisions, deferred until 2020 after the last elections, involved a different kind of a concept to a floor below which your money would be left in your hands: it advised a cap on the maximum amount of notional spend a council’s client (OR a privately contracting ‘above threshold’ person needed to have spent on them, in relation to their needs, before care would become free (the cap having been settled last time round at £72,000). So the rich did well out of that, and could do even better if they accepted coming through the council’s arrangements after getting the meter ticking, by benefiting from the council’s bulk purchasing power to obtain a lower fee for care.

Before the U-turn, under the Conservative proposals, a person who was rich but ill for a very long time would not have got the benefit of any cap on their care costs – not even notionally through a local authority objectively assessed rate, nor in real terms.

Now, after the U-turn, it appears that the Conservatives have been reminded that even deferring the Dilnot lifetime cap until 2020 had already attracted much criticism first time round, and that it is an essential feature to offer to UPPER Middle England – to people who might like to keep £100,000 of equity, and not risk their spouse having to downsize if surviving them, AND wish to spread the cost of what will otherwise be insurance across the whole population. Even though the ‘upper threshold’ was going to be £118,000 under Dilnot, and the cap on a person’s spend, £72,000. It seems that there is no prospect of the population being told WHAT the spend might be – Mrs May even mentioned £10K to Andrew Neill, which CANNOT possibly be correct!! So I wonder who is making this stuff up, personally.

A problem for the Conservative dogmatist however, is this.

The Dilnot provisions would have impacted on the care home market and got rid of the private client subsidy – by giving everyone, however rich, an irresistibly economically rational incentive to use the local authority route into social care.

That would have meant central government would have had to have provided more funding to local authorities to meet the overall ‘bubble-up’ costs of the policy. This would have been needed to keep the sector afloat once the private subsidy evaporated – although in that one-off measure, one of the greatest iniquities operating in the sector could have been got rid of. That was its genius. And that was why it was almost bound to be dropped – no political party, let alone the one last elected, was willing to put up taxes for the ‘Cinderella’ service of social care.

A £100,000 ‘floor’ will not achieve that effect – there was no mention of a meter for one’s notional costs, or maximum SPEND – so there would have been no need or reason to entrust the shopping for one’s care, to one’s council, in order to start any meter towards a cap, running. It would have left better off people – culturally disdainful of social services perhaps – with more reason to make the choice of buying care in privately – if they wanted to spend their own money – rather than having the council control the question of whether they are eligible at all, and the size of their care packages, subject only to judicial review.

I guess that would have kept the numbers down for social services, and would have fitted with the fact that they are all severely under-staffed after 8 years of austerity, even now.

But if we ARE now having a cap, and it is going to be a sort of Dilnot cap, the idea of Upper Middle and Middle England submitting to social services assessment, and a notional spend, without anyone ever challenging the local authority view through public law proceedings, is about as likely as the Conservatives losing the election. The 4.5 billion taken out of social care would HAVE to be put back into it for more staff, more training, and an appeal system, if not a tribunal.

For extreme anoraks, that’s a really interesting prospect whilst the Government has STILL got to come off the fence about a Tribunal for all the Liberty Protection Safeguards challenges that might be better off dealt with there rather than in the Court of Protection. Isn’t life interesting?

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

2 thoughts on “

The first ever proper plan to pay for sustainable social care? Hmmm. Cap it a Little? Or Cap it a Lot?

  1. Anon

    Wonder also about the care act promise for a zero cap for those who develop or have care needs before age 25. Anyone know about that please. Still a commitment or not?

    1. Belinda SchwehrBelinda Schwehr Post Author

      Not heard a sausage about that. I recall the consultation on that aspect of the Dilnot suggestions being mired with concern about all sorts of things: it was one of the things that made the cap look so much like it was focused on getting as many elderly people as possible going for care through their councils so as to control the cost of care home care even more effectually. Also there was concern about hard lines around a given date of deterioration: the last month before one was going to be 25 it would have become essential to register for a need! And it was kind of assuming that if you were under 25, say with a learning disability, you’d never be winning the lottery or receiving any other inheritance, so it was overly favourable to a particular category of client. All in all, I don’t think it would be a flagship part of any new scheme, personally. Belinda

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