claims against an estate by social services for overpayment of home care support

[Twiggy]

Are there any pitfalls to watch out for here ?
We already know the DWP are likely to make a claim due to the level of the deceased's savings but that's another story....

This is different: The deceased was receiving social services contribution towards her home care, however her savings had risen above the £23k limit and for the latter period of her life she should therefore have been paying for her own home care.

We spoke to the County Council Benefits team by phone 3 months ago. They took the details and said they'd investigate, but it would take 'weeks or months'
Well it has been 3 months and we've heard nothing from them so we're just about to chase them.
All the internet searches we've done talk about DWP, and I can find none relating to Social Services home care so there's areas we're uncertain of:

- is there a time limit for them to claim a refund for overpayment ? (we note that the '6 month rule' which some people have quoted to us seems only to apply to family members making a claim)
- what's a reasonable time for them to take ? (it's already been 6 months since probate granted)
- We did place the proper notices in the Gazette and local paper, with a September closing date. Does the fact that the closing date had actually expired when we contacted them, or that they've failed to contact us to make a claim mean that we're covered as executors against liability if we do eventually get a claim ? (again this doesn't seem to be covered by any internet searches we've done!) OR does the fact that we contacted them negate the protection ?

That's a lot of questions but any comments will be welcome. Maybe we should just see a solicitor ?

This post was originally put in the welcome forum by mistake... sorry

[Kati]

Re: claims against an estate by social services for overpayment of home care support

[MENTION=39710]des8[/MENTION] [MENTION=141]enaid[/MENTION] ??

[enaid]

Re: claims against an estate by social services for overpayment of home care support

Not sure of any time scales on this sorry.
After the needs assessment a finance assessment is carried out and from £14,250 up to £23, 250 the person should have been contributing something towards the home care. Each LA now has it's own charging structure you should go on their website for info on that.
There should be a report on the care needed and how much the LA is willing to pay towards the care, there should also be mention of time scales for reviews of finance etc. I think some care is given with no charge at the LAs discretion but only for small care packages I believe.

[Peridot]

Re: claims against an estate by social services for overpayment of home care support

Hi,
Unfortunately the time limits for creditors coming forward, following section 27 notices, don't apply to DWP repayments. The 6month time limit you mentioned would be where a person believes they have a claim against the estate, under the Inheritance (Provision for Family and Dependants) Act 1975, not for creditors making a claim.
From personal experience they can take a ridiculous amount of time I'm afraid. An occasional nudge won't do any harm but I wouldn't hold my breath for the final response.
Sorry we can't be more positive, just a waiting game I'm afraid.

[enaid]

Re: claims against an estate by social services for overpayment of home care support

Hi,
Unfortunately the time limits for creditors coming forward, following section 27 notices, don't apply to DWP repayments. The 6month time limit you mentioned would be where a person believes they have a claim against the estate, under the Inheritance (Provision for Family and Dependants) Act 1975, not for creditors making a claim.
From personal experience they can take a ridiculous amount of time I'm afraid. An occasional nudge won't do any harm but I wouldn't hold my breath for the final response.
Sorry we can't be more positive, just a waiting game I'm afraid.

This is not DWP but the LA care funding the question is about unless I have read it wrong.

[Peridot]

Re: claims against an estate by social services for overpayment of home care support

Sorry, thanks for flagging [MENTION=141]enaid[/MENTION] I'll go hunting and see if I can locate any more info. I suspect it would operate in a similar way to DWP, bearing in mind it is public purse we're talking about. If I can find anything more concrete I'll pop back.

[Peridot]

Re: claims against an estate by social services for overpayment of home care support

Hi again,

The Care Act 2014 is the legislation that covers social services care funding, together with regulations prepared by the relevant Local Authority. Section 69 deals with the recovery of charges.
http://www.legislation.gov.uk/ukpga/...-debts/enacted
However prior to April 2015 the legislation governing the provision of care fee funding was dotted about in various regulations.
I have found the government statutory guidelines on debt recovery here https://www.gov.uk/government/public...uidance#AnnexD
Unfortunately the guidance is geared to acting during a person's lifetime but does shed some light on the factors the LA should consider before pursuing the debt, including the individual's mental state.

It may be worth obtaining some specialist advice on the care fees that the deceased was entitled to. Assessments are not always carried out correctly particularly in relation to the division of nursing care and the residential aspects. They may also be in a position to guide you as to whether the LA would be likely to pursue this or not. Bearing in mind the increased occurrence of LA's making claims against estates where properties or assets have been transferred during a person's lifetime with what they perceive as an intentional deprivation of assets to avoid care fees I suspect there is some regulation allowing them to pursue in circumstances such as these.

I'll keep looking.

[des8]

Re: claims against an estate by social services for overpayment of home care support

section 69(3)(b) of the Care Act 2014 appllies and a High Court Case Nottinghamshire County Council v Estate of Mr Wilfred Belton and Mr Ian Belton [2017] EW Misc 26 (CC) it was found:

1. The limitation period for recovery of care home costs in the County Court under the former section 56 NAA (other than for summary recovery – which is rarely if ever used) is six years: see paras 26-27.
2. While this pre-Care Act debt fell due at the time of the NAA rather than the Care Act, the Care Act transitional provisions (Care Act 2014 (Transitional Provision) Order 2015, Art 3(2)) provide that they are recoverable under section 69 of the 2014 Act: para 28.
3. As the sums in this case fell due before 1 April 2015, section 69(3)(b) applied. This appears to impose a three year limitation period: para 29.
4. However Article 3(4) of the Transitional Provision Order provides that pre-Care Act 2104 charges are recoverable within the period for which they would, but for Article 3, have been recoverable under s.56 NAA. Article 3(3) preserves the time limits which applied to such NAA charges before the Care Act 2014. Thus the effect of Article 3 of the Transitional Provision Order is to make NAA charges recoverable under s.69 Care Act 2014 but subject to the s.56 NAA time limit, which is six years: paras 30-31.
5. There may still be a role for the three year limitation period, the judge holding at para 35 that: “The three year period in s.69(3)(b) refers to sums due under s.69 Care Act 2014. It does not apply to sums due under NAA or HASSASSA unless those sums are specifically brought within the Care Act 2014. In this case the NAA monies claimed in respect of Wilfred Belton are brought into s.69 Care Act 2014 by way of the Transitional Provision but subject to the preservation of the original limitation period. There may well be sums initially due under other legislation which are brought within s.69 by other transitional provisions without preserving the original limitation period: alternatively that is a legislative option which may be exercised in the future. In that event the three year s.69(3)(b) limitation period would apply”

[enaid]

Re: claims against an estate by social services for overpayment of home care support

As you have said finding anything on this is very difficult as is the actual charging process for care. It's simple if the person has savings or assets that are over the £23,250 you pay full costs.
You start paying towards social care when your savings hit £14250 and then the assessment takes in all income etc and with amounts by law that you are allowed to live on disregarded. Also AA and DLA mobility component are disregarded.
What I don't understand is how the savings had gotten so high with no contribution being paid. Financial assessments are done annually usually and automatically when pensions etc rise.
My own personal opinion on this too is often the disregarded benefits AA and DLA are the cause of the persons savings rising so quickly and seems unfair to me then the person is penalised because of this.
In any event I would make sure I got a full break down of any over payment they are going to reclaim.

[Twiggy]

Re: claims against an estate by social services for overpayment of home care support

As you have said finding anything on this is very difficult as is the actual charging process for care. It's simple if the person has savings or assets that are over the £23,250 you pay full costs.
You start paying towards social care when your savings hit £14250 and then the assessment takes in all income etc and with amounts by law that you are allowed to live on disregarded. Also AA and DLA mobility component are disregarded.
What I don't understand is how the savings had gotten so high with no contribution being paid. Financial assessments are done annually usually and automatically when pensions etc rise.
My own personal opinion on this too is often the disregarded benefits AA and DLA are the cause of the persons savings rising so quickly and seems unfair to me then the person is penalised because of this.
In any event I would make sure I got a full break down of any over payment they are going to reclaim.

That's the main cause of the trouble - there was no financial assessment carried out between her initial assessment in 2012, and her death in 2017, so nobody (including her) realised that the savings had gone up that much.
She was indeed claiming not only Attendance Allowance, but Pension credit, council tax exemption and goodness knows what else, so it's no wonder the savings went up pretty quickly.

[enaid]

Re: claims against an estate by social services for overpayment of home care support

That's the main cause of the trouble - there was no financial assessment carried out between her initial assessment in 2012, and her death in 2017, so nobody (including her) realised that the savings had gone up that much.
She was indeed claiming not only Attendance Allowance, but Pension credit, council tax exemption and goodness knows what else, so it's no wonder the savings went up pretty quickly.

Blimey there are only certain kinds of care where money is not considered.
If the house was owned are you sure a Deferred Payment plan was not in place?

Indeed a different story as you say with DWP they will no doubt be hounding you.

[marcus18]

If her savings were below the allowed amount when any pension credit was originally claimed and she had an assessed income period up to her passing then there is absolutely nothing the DWP can do. No one would be under any obligation to tell them her savings were rising as that is part of the AIP. Find any correspondence you can from the DWP during those years and particularly if she turns 80 and moves on to an indefinite AIP. The way to find out the latter is if original letters say 'she has an assessed income period of 'dates' but later letter just say she has an assessed income period (full stop). Twiggy can i suggest you think about whether you or anyone else was effectively subsidising her (sorry for the choice of words there but it was all i could think of) for example, taking her meals, shopping etc so that her day to day spending was limited by you or others generosity.