Help the Aged has received many phone calls and letters from people who have been assessed as needing to move into a care home by their local council, but have been refused financial help with the fees. Some local council decisions to refuse funding are legitimate, but others go against government guidance and legislation.

To help clarify which decisions taken by local councils are not legitimate, the following case studies illustrate the common ways in which local councils ignore government guidance and legislation.

The case studies are based on calls to Help the Aged, but the names have been changed to protect confidentiality. If your situation is not covered, or you need more in-depth advice, contact SeniorLine on 0808 800 6565 (0808 808 7575 in Northern Ireland).

Case study 1: Mrs Adams is told her capital is above the limits

Mrs Adams is currently in hospital. She has been assessed by social services as needing residential care and her daughter has found a suitable home for her to move into. The social worker has told Mrs Adams that she will have to pay the home fees herself because she has £8,000 in savings. The local council says it will only pay the fees when Mrs Adams’ savings have gone down to £1,000. Mrs Adams’ daughter rang Help the Aged to find out if this is correct.

The local council is wrong. Mrs Adams should keep all of her £8,000 savings. Her £8,000 is less than the lower savings limit and should be ignored completely when the local council is working out how much she should pay. See 'rules on savings and capital'.

In 1997, Help the Aged discovered that Sefton Metropolitan Borough Council was forcing people to wait for residential care funding until their savings had fallen to £1,500. Help the Aged took Sefton MBC to court, and it was found to have acted unlawfully by the Court of Appeal. In the judgement, it was stated that local councils are not allowed to operate their own scale when deciding who qualifies for residential care funding. It was also stated that local councils cannot use lack of resources as an excuse for not providing financial assistance with residential care.

In 1997, Help the Aged discovered that Sefton Metropolitan Borough Council was forcing people to wait for residential care funding until their savings had fallen to £1,500. Help the Aged took Sefton MBC to court, and they were found to have acted unlawfully by the Court of Appeal. In the judgement, it was stated that local councils are not allowed to operate their own scale when deciding who qualifies for residential care funding. It was also stated that local councils cannot use lack of resources as an excuse for not providing financial assistance with residential care.

Case study 2: Mr Shah is told funding isn't available for the home he has chosen

Mr Shah has been assessed as needing to move into a care home. He is given a list of homes and is told that the local council will usually pay up to £300 a week for someone with his assessed needs. After visiting a few homes with his daughter, he finds one he likes. The cost of the home is £290 a week. When he tells his social worker that he has found a home, the social worker tells him that, unfortunately, it cannot fund a place in the home he has chosen. It will, however, pay for a place in another home, run by the local council, which costs £285 a week. Mr Shah’s daughter thought this was unfair and rang Help the Aged.

The local council is wrong. It cannot force Mr Shah to move into the local council-run home and should pay for the place in the home of his choice.

Case study 3: Mr Edwards is told that his case is being referred to an 'allocation panel'

Mr Edwards is visited at home by a social worker who carries out an assessment of his needs. The social worker advises Mr Edwards that he meets the criteria for a place in a care home, but the decision about whether funding will be available for this will be made by an allocation panel which meets every month. This panel is made up of councillors who have to decide how many places in care homes can be funded.

This practice is unlawful and Mr Edwards would be advised to challenge this. A 1998 case known as Tammadge established that it was unlawful for a meeting attended by councillors to override the decision of the council’s ‘own professionally qualified staff and advisers’.

Case study 4: Miss Clough is told there is a waiting list for funding

Miss Clough has been living in a care home for four years. When she was originally assessed as needing to move into a care home she had capital of £73,000, so she paid the home fees herself. She was told that once her savings fell to the level of the upper capital limit (currently £22,250 in England), the local council would help her with the fees.

Her savings have now fallen to £22,250 and the manager of the home contacted social services on her behalf. A social worker visited Miss Clough and said that although she still needed care, it would not be able to help with the fees because of ‘budgetary constraints’. The social worker said there were 36 other people who were worse off than Miss Clough and they would get funding before Miss Clough. The social worker could not say when Miss Clough would get help with her fees.

The local council should not be operating a waiting list. Miss Clough should get help with her care home fees as soon as her capital falls below £22,250.

Local councils should follow government guidance, which states that when a person is in residential care and their capital falls to £22,250 (£21,500 in Scotland and £22,000 in Wales) the local council should provide help with the fees as soon as it is aware of the resident’s circumstances. If it fails to do this it is not meeting their statutory duty to provide care ‘without undue delay'.

The local council can recoup some of the cost from the person’s income and savings, but savings below £13,500 in England, (or £13,000 in Scotland and £19,000 in Wales) should be ignored and left untouched.

Case study 5: Mrs Cochrane is told that the market value of her share in a jointly owned property counts as capital

Mrs Cochrane has been assessed as needing to move into a care home. She and her daughter Lucy have joint ownership of their current home. Her local council has told her that she will have to pay all her care fees because the market value of her share in the property takes her capital above the upper limit. They can’t sell the house, because Lucy would then lose her home; but Lucy can’t afford to buy Mrs Cochrane’s share in the property so it will be very difficult for Mrs Cochrane to pay for her care home fees. She called SeniorLine in Northern Ireland for advice.

The local council is wrong. It should be basing its financial assessment on the value of the interest that Mrs Cochrane has in her property, not on the market value of her share. Mrs Cochrane can get a professional valuation and challenge the local council decision.

However, there are some cases where a local council’s refusal to fund is legitimate, as in the following example.

Case study 6: Mrs Davies has moved to a care home in Scotland

Mrs Davies moved from a care home in England to a care home in Scotland to be closer to her daughter. Mrs Davies was assessed as needing to live in a care home, but because she has some savings she was paying her full fees in England. Her daughter assumed that when she moved to Scotland she would get the £149 payment that local councils in Scotland pay towards the personal care costs of care home residents. When she was told this wasn’t the case, she called Help the Aged.

In this case, unfortunately, the local council is right. Mrs Davies will continue to be the responsibility of her old local council in England and isn’t eligible for the £149 personal care payment. Once her savings fall below the upper limit, she should get help with her fees from the local council in England.

For details of the guidance and legislation that local councils should follow see our information sheet no. 18, Community Care: Legislation, Guidance and Case Law, or call SeniorLine.