10th February 2014

So Who Cares?

When issues with the local authority concerning an elderly relative reach an impasse the middle classes need to overcome five expensive obstacles when they attempt to find a place for a loved one in a care home, according to a new report by the charity, Independent Age.

One of the five is different costs in different places. One borough in London, for example, pays no more than £451 a week for care home bills but a few miles away another local authority will cover costs of £952.50. The varying policies mean families in the wrong place can end up paying hundreds of pounds a week extra in top-ups.

There is no such discrepancy, of course, in Scotland where, unlike England, this rate doesn't vary from one local authority to another, thanks to a National Care Home Contract (NCHC) which standardises terms and conditions for local authority funded residents.

And in any case the cost of living in a care home is free in Scotland is it not - whether you moved there from a council flat or some £1million-plus pile in The Grange?

Well, not quite. In Scotland everyone is entitled to free personal or nursing care on the basis of need, regardless of their background and financial situation. However personal care is only a relatively small part of residential care so a substantial part of the total cost will be charged to the recipient, depending on his/her capital assets (which normally includes an owner-occupied home) and level of income.

There are usually two issues that younger family members have concerning an elderly relative and local authority policy on care homes.   One is the means-testing of those receiving care, which obviously determines how much they have to contribute; the other is the assessment process by which local authority (though its social work department) decides if a person requires, or does not require, personal or nursing care.

Anyone who does not agree with a ruling by social services is entitled to refer the matter to a properly constituted appeals body. If that appeal is refused then this really is the end of the 'official road' - but there is always the option of going to law.

If you are dissatisfied with a decision by the local authority - and the appeals body - over the assessment of care of an elderly relative, or have issues with how your relative's care is funded, then a solicitor may be prepared to take up the issue on your behalf. The case would have to go to what is called a 'judicial review', which can be heard only by the Court of Session and, therefore, would involve the law firm engaging an advocate. In theory, this should put things beyond the financial reach of most 'ordinary' members of the public but legal aid could be available.

People not eligible for legal aid may find that there is an advocate prepared to take on the case at a reduced fee or even pro bono (i.e. free of charge). The reason for this is that a successful application for judicial review is generally reckoned to have some kudos, especially to a member of the up-and-coming membership of the Faculty of Advocates.

If you are concerned about the issues referred to and would like initial legal advice, please contact our court department on 0131 222 8000.

Richard Godden

Partner

Email: rgodden@blackadders.co.uk

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