Over the last few weeks I have looked at deliberate deprivation in the context of the local authority charge.
While the general rules I have considered are relatively well known, questions are often posed concerning what actually happens in practice.
Is the individual obliged to disclose any gifts he or she has prev iously made, no matter when, or is there some limitation on this disclosure? How far is the local authority lik ely to go in trying to find out what actually happened?
What happens in practice when the individual has made a gift but the money that was given away has been spent by the donees and is therefore not recoverable? How important is the motive of the individual in making the gift?
The first important point to note is that there are no regulations on how exactly financial assessments by local authorities are to be conduc ted and practice varies from one local authority to another.
General public law prin ciples require that any procedures should be open and fair and that plenty of information should be available for service users, their relatives and carers.
An individual applying for assistance will be asked to complete a financial assessment form. If the individual refuses to complete the form, the local authority is entitled to impose a contribution which, in the case of residential care, would be equivalent to the full cost.
Completed forms are often examined by the relevant officials of the local authority who will have to make the decision concerning any existing property, which could include the valuation of a part-interest in the property. They will also dec ide whether any property has been given away or otherwise disposed of for the purpose of “decreasing the amount that the resident may be liable to pay for his accommodation” so that regulation 25 may be applied.
Practice varies between local authorities as to how this matter is approached. In some local authorities there are standard procedures whereby all cases where notional capital is an issue are referred straight away to their legal department.
Clearly, it should be beneficial for the individual concer ned if the issue is considered by the legal department and his or her advisers should be able to demand that it is.
Guidance on the application of the principles of not ional capital are included in the Charging for Residential Accommodation Guide which incorporates the notion of reasonableness into the application of regulation 25 and suggests the burden of proof on the local authority is a significant one.
For example, paragraph 6.64 states that “the timing of the disposal should be taken into account when considering the purpose of the disposal. It would be unreason able to decide that the resident had disposed of an asset in order to reduce his charge for accommodation when disposal took place at a time when he was fit and healthy and could not have foreseen the need for a move to residential accommodation.”
Even if an individual disposed of his assets in the past, there is no certainty that the local authority will find out about it. It is for the local auth ority to determine what questions to ask and there is no duty on the resident to disclose information which the local authority does not ask for.
Apparently, some financial assessment forms do not make any reference to gifts. Other forms ask questions similar to those on an income support claim form such as “Do you own your own house?” and “Have you ever owned a property?” Some go further and ask about gifts made within the last six months. The individual's duty is to complete the claim form honestly and reply to the questions asked and any further questions raised.
I will look further at the practicalities of applying for local authority help with care costs next week.