Can DWP claim an overpayment from an estate when there is only a house

[iona]

Sorry this is very long, but it is complex.

My mother died in Scotland at the start of this year and had been in a nursing home for the 5 years before her death. She was entitled to have her nursing care paid because of her physical and mental condition but her accommodation costs all had to be paid. That is how it works in Scotland, Nursing Home fees are NOT Free in Scotland at all as some people in England seem to think.

She had very little in saving approx 2k but she did own her small house, therefore she was not entitled to have her fees paid as the house is counted as capital. The house would have to be sold or I would have to pay towards her fees, which I chose to do and so she was regarded as being self funding. I contacted DWP when I started looking for a place for her in a home explaining the situation and to find out what she was entitled to in benefits and pension. They were less than helpful and would not discuss with me because it was my mother's account and they insisted they speak to her. That very quickly made them realise this was pointless as she could not understand the conversation. I was then told that they could not discuss the amount of any of her benefits or pension with me, but what they could tell me (to enable me to work out how much I would need to contribute to her fees) was that because she was self funding she was entitled to continue to receive her current income from DWP. This as far as I know was her state pension, pension credit, mobility and I think attendance allowance. But it was all paid as one amount into her account every four weeks and as they would not tell me how it was made up it was really hard to be sure of what she was receiving other than the total amount.

However I took them at their word in good faith and found a place for her, most of my monthly salary for 5 years then went towards her fees and in total between her pension and benefits and my contribution there has been over 120k paid to the nursing home for her accommodation. Now DWP are saying she has been overpaid, I don't have a final figure yet but I cannot understand how she can possibly have been over paid when there was nothing in her bank and everything she had coming in went to pay her fees, including my salary for 5 years. As a family we have really struggled to meet this commitment and I am only beginning to catch up with my own debts such as credit cards to buy food while I was paying her fees. Now I am being told I could owe DWP around 30k or more and should sell the house to pay for it??

Members of our family with a disabled child live in the house, my mother before she lost her mental capacity, very specifically wanted them to have her house as it was already adapted for disability and they desperately needed suitable accommodation. The house was to be transferred to me when she died, but they would live there and pay rent. During the 5 years they contributed towards her fees in place of rent. This was how as a family we decided to manage her care rather than have to sell the house. Had we done that the govenment would have had to pay her fees when they money from the house ran out anyway, so infact we saved them a lot of money. We also provided a home for a family who were in urgent need, something the council were unable to do as they had no accommodation available and the family were living in a upper floor flat which made their life impossible.

What I cannot undertand is how after having paid out all this money to care for my mother and her having no savings I am now being asked to pay out again. It does not help that my mother who thought she was Lady Bountiful also left large legacies, which I am also having to pay. There is still the house, but I am not prepared to put a disabled child and family out of their home just because DWP suddenly decided that they have overpaid benefits.

I expect I will have to pay whatever it eventually comes to, although I will never in a million years believe their calculations, they specifically told me she was entitled to continue to receive her current benefits. But can they force the sale of the house to get immediate repayment or can I insist they agree a repayment schedule directly with me. It is more of a problem because I am not the executor, this is one of my mothers fairweather friends hanging in there because of the legacy!! Not around for the 5 years of fees of course. But to discharge the executors I need to accept liability for any DWP repayment no matter how large. I will not put a family out of their home, I will do anything within my power to stop that happening even if it means I need to work until I drop dead which as I am already past retirement age means I probably will. Does anyone know if I can refuse to allow the sale of the house to pay DWP and insist they accept payments I can afford?

[enaid]

Re: Can DWP claim an overpayment from an estate when there is only a house

Hi and welcome,
Info on care home fees in Scotland
http://www.housingcare.org/downloads/kbase/2818.pdf

I don't know what benefit is supposedly over paid and from reading your post neither do you.
The house and a disabled family member living there should not count as capital, but they may look at dates etc when they moved in and may look at it as a deprivation of assets. I can't understand why you had to pay anything towards your mums care home tbh if she had nothing it should have been free.

You have no responsibility to distribute the estate anyway that is down to the executor.

[anmarj]

Re: Can DWP claim an overpayment from an estate when there is only a house

I can't respond at the moment but I will tonight

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

Thanks for your response, but unfortunately the house does count as capital according to DWP and therefore that is why families have to sell a home owned by parents to pay care home fees. It would only have been ignored as capital if the disabled person living there was my mother's dependent, which of course they are not as they are a child and my mother was 92 when she died. It is only when the money from the sale of the house is almost completely gone that residents are entitled to have have their fees paid by the government. I personally think it is very unfair as my mother had no savings, she only had her home and she struggled all her life to pay the mortgage on that home, but it is regarded as a capital asset.

My husband and I also had to pay family contribution to his parents nursing home fees for many years, they were entitled to have their fees paid after all the money from the sale of their house ran out, but the fees were more than the government would pay and at that time family were still being forced to pay top up fees and we had 8 years of that. If we could have continued to care for all our parents at home we would have done, but they developed dementia and needed constant care, neither of us were physically able to care for them any longer than we did.

I don't know what benefit exactly has been overpaid at this stage, I only have a figure estimated by the executors after discussions with my mothers solicitor. They seem to think a care component part of what she was being paid by DWP when she lived at home should not have continued after she moved into the nursing home and it is this they think I will need to repay. But as it was over such a long period of time it has become a large amount.

There were a number of government departments involved when my mother was being assessed for care, both medical and social responsibility. I think they should have been looking at the whole picture to ensure the person they were assessing received the correct amount of benefits, along with the payment for the nursing care. But they don't do this, every department is only concerned with their own little bit of the jigsaw and it seems they never communicate with each other. Then they set up another department, give it a name such as the NFI and employ people to investigate all the mistakes and over payments that have been made by all the various other parts of the jigsaw.

The whole system is a total mess and it is completely unfair. Residents of the nursing home who lived in the same street as my mother with a lot more in the bank than she had, are all entitled to have all their fees paid for them by the government, just because they did not buy their own home.

I am the only beneficiary as I am the only one of the family still alive and as the residuary beneficiary I only get what is left after all the legacies and debts are paid. But I very much do not want to sell the house to pay DWP. I knew that to keep the house I would need to pay the legacies, and all the other debts from my own money, leaving me with nothing yet again, but I am quite used to that situation. I will just have to pick myself up as I always do and start from scratch once more. But this from DWP is just the last straw on top of everything else.

My main concern now is the family living in the house. I am being told by the executor that I must sell the house and he wants to start doing this now to have enough to pay DWP when they eventually come back with a final figure. I am well aware of the fact that in all this his only concern is for himself as the executor and what he gets out of it all. But I don't want to sell the house and I just want to know if what he is saying is right. Can DWP force the sale of the house to recover what they consider to be an overpayment even when I am prepared to take full responsibility for the debt and in doing so discharge the executors. I will pay the money to DWP as I have no option, but I want to do it as a planned repayment schedule from my income and not from the sale of the house.

I know people may be saying well it is only a house just sell it and buy another one, but it is not as easy as that. Finding a house suitable for a disabled child is very very difficult and finding a house that is affordable and can be adapted is equally difficult. That family tried for years to find a suitable home they could afford without success, my mothers house was perfect as it was already adapted, which was done for her as she too was disabled. To find something else like this in the same location or even within traveling distance of their work and where they have support set up for their child would be impossible with the money left from the sale after payment to DWP. I have considered getting a loan to pay them but that is quite difficult when you are 65, even with a full time job.

If anyone can give me any answers it would be much appreciated, under the circumstances finding money to pay yet more legal fees for help to sort this out is not an option right now.

[enaid]

Re: Can DWP claim an overpayment from an estate when there is only a house

They seem to think a care component part of what she was being paid by DWP when she lived at home should not have continued after she moved into the nursing home and it is this they think I will need to repay. But as it was over such a long period of time it has become a large amount.

This is the benefit they must be asking about
If you choose to receive the payment for the Personal Care Component of your care home fees, you will no longer be eligible for Attendance Allowance after 28 days and you must inform the Department of Work and Pensions of your change in circumstances by phoning.

[anmarj]

Re: Can DWP claim an overpayment from an estate when there is only a house

there will be an overpayment of the DLA Care component, this is because of the funding status is different in Scotland and England, if she had been in England and fully self funding ie no help from state then she would of been entitled to the DLA Care component. In Scotland because of the help, then DLA Care is not payable. DLA Mobilty is still payable in care home. This can cause confusion

There may be an overpayment of Pension Credit, there may of been a premium on the Pension Credit called Extra amount for severe disability and that would of stopped when the DLA care would of stopped, and because of the property; the value of the house would be taken into account as capital this may of extinguished the entitlement to Pension Credit. Social Services when working out the contribuiton should of been aware that the PC should of been stopped/adjusted and done their calculation accordingly. The executor should get a breakdown of the overpayment for both.

Due to data protection the various departments cannot talk to each other, the same way that they would not disclose any benefit details to you when you called unless you were registered as the appointee or Power of Attorney. It is about safeguarding information in the same way that you would expect them not to disclose your details to anybody who called up and asked them for it. If your mum was not able to handle her affairs then the DWP could of made you an appointee for benefit purpose, but that is neither here or there.

If there is a recoverable overpayment, then it does not have to be paid in one lump sum but arrangements can be made, but they will contact the executor about this.

Life is never fair, and if you don't agree with how the government decide that, then speak to your MP, after all they often vote on such matters.

[MissFM]

Re: Can DWP claim an overpayment from an estate when there is only a house

Iona, FWIW I really feel for you and am so sorry that on top of your bereavement you have this huge injustice.

Reading your posts, I think that it's possible that both the rent from the house and your personal financial contributions to your late mother's care home fees have been classed retrospectively as income, hence affecting what she would have been entitled to in benefits.

Without seeing the terms of her will it's impossible to say whether or not you can keep the house. You say that she left many generous bequests but had no capital other than her equity in the house. Depending on whether she had left you the house with any residual capital to be shared between other beneficiaries, or whether she left fixed sums to various people, or left sums as a proportion of her overall Estate...it's complex, isn't it?

In your shoes I would book a session with an accountant and/or solicitor well versed in these matters to try to untangle the cat's cradle.

I think you may be a victim of you own desire to be generous and to do the right thing.

Wishing you the very best of luck in sorting this x

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

Thanks that is helpful, the problem was that I could not find out what her payment was it was just a one of payment she received and DWP would not tell me. They never even mentioned she may be getting something she was no longer entitled to. I still don't even know how much that attendance allowance was, if I could find that out at least that would give me a more accurate indication of the total they are saying was overpaid. What I don't understand is why they kept paying it.

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

Thank you so much for taking the time to reply, as far as I know it was called attendance allowance or so I have been told tonight by the executor. If I can find out how much that was then I can work out an approximate amount that I will be due to repay. But I don't know anything about how much the Pension Credit would have been, so that will add to this I expect.

I just cannot understand how so many people from government departments were involved in making arrangements for payment of her personal and nursing care and not one of them ever said this would change the amount she received from DWP. This is so wrong, I am now left with the bill for people not doing their job properly. They didn't need to discuss it with me but surely the social work department managing this could have notified DWP.

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

Thanks for your reply, it is more complex too because I live in England and would have to make an appointment with a Solicitor in Scotland. Much as I loved my mother she was a very silly old woman and became more vulnerable to all forms of advertising and persuasion as she got older. She was totally taken in by charities asking for money to be left to them in her will and she would not listen to any of the family trying to expalin to her that she could not leave money she didn't actually have. I also feel very annoyed with the solicitor who wrote the will for her, my mother would not listen to me I was only her daughter, but she would have listened to him as she saw him as someone of authority and if he had explained to her that she could not leave money she did not have she would instantly have believed him. I cannot understand why he did not try to find out what her assets actually were before listening to all her nonsense about leaving large legacies to charities. She was nightmare to cope with and this is the result.

As for my salary becoming her income, this is even worse than I thought, I have already paid more than my fair share of tax on that income why in heavens name does it have to be taxed again because I paid a bill with it. I am losing the will to live here!!! I feel like this cat going nowhere fast.

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

Yes that's great but what happens when you phone to tell them as I did and they won't speak to you because you are not the claimant. Even when you point out that the claimant cannot speak to them she is totally deaf, can't hear the sound of her own voice and is therefore losing the ability to speak and certainly can't hear them. Cannot understand what it is all about anyway and is never going to be sane enough to have a conversation with them about anything. Surely they should at the very least have listened and worked out what she was still entitled to. Anyway she is gone now and I just have to sort out the mess she has left behind. I spent my whole life doing that while she was alive, now it looks like I will still be doing so long after she is dead.

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

Thank you so much eveyone for your helpful replies. I am sorry my reply posts seem to be all over the place, I am not good at working out how to reply to individual posts and get the reply to fit in after the post.

[enaid]

Re: Can DWP claim an overpayment from an estate when there is only a house

As far as I can see you need a full and proper breakdown of the care home charges, what exactly you were funding, what the state was funding and what if any benefits your mum was entitled to while in the Care Home. You need copies of the assessments as to finance and the assessments of personal and nursing care both funded differently. This may not be something you can obtain info on but the executor or the solicitor should be able to find out as he is acting for your mum and her best interests.

[iona]

Re: Can DWP claim an overpayment from an estate when there is only a house

As far as I can see you need a full and proper breakdown of the care home charges, what exactly you were funding, what the state was funding and what if any benefits your mum was entitled to while in the Care Home. You need copies of the assessments as to finance and the assessments of personal and nursing care both funded differently. This may not be something you can obtain info on but the executor or the solicitor should be able to find out as he is acting for your mum and her best interests.

I have decided I am going to leave the solicitor and the executor to obtain whatever information they can get and then once they eventually come up with a figure I will work out a payment schedule with DWP. If that proves to be impossible then the house will have to be sold and the money that is left used to buy another house. It just seems a completely mad thing to have to do, to sell a suitable house I don't want to to sell to pay a debt I did not even know existed, to buy another house which is not suitable, especially when I am already having to pay her damd legacies, funeral and legal fees. Even if I learned little else from my parents and in laws there are a few major things I have learned and that is never ever leave your children to pick up the cost of your end of life care and don't leave any debts. Forget the legacies unless you are very wealthy because by the time the nursing home and government have had their share there will be nothing left. You may think what you have is a substantial sum but unless you are a millionaire it is a drop in the ocean by comparison with the cost of care. Finally DO get a Power of Attorney ready and waiting for your family so that they can deal with your finances and make decisions on your behalf. My mother would not make a PofA because she would not believe she could possibly ever lose the ability to make her own decisions and that belief got stronger the older and more confused and impossible she became. I am sorting all this well in advance I never want to put my family through what my husband and I have been through with our parents. The complete refusal of every one of them to even consider the possibility that they could end up losing their ability to care for themselves or make a decison was absolute, they had no insight whatsoever into their need to plan for such decision making. My husband and I both asked our parents to grant us PofA when we realised they were very soon going to be unable to care for themselves and we were treated as if we were mad, why would they need something like that? It's a short stay in Switzerland for me I think, if I still have the ability and the funds to get there by the time I have paid all these debts that I did not create. I would prefer to leave my family with happy memories and go quickly when I am ready rather than a relationship destroyed by many years of financial hardship trying to meet the cost of my care. Never never do I want to put my children through this.

[enaid]

Re: Can DWP claim an overpayment from an estate when there is only a house

It's your decision, but I doubt I would be able to leave it until I was completely satisfied the DWP were correct, they do not always get it right.
My sister and I had a LPA with our dad and it did make things easier as he couldn't have dealt with his own finances.
I really hope you get a decent result when all this is eventually sorted, it's sad enough when you lose someone and things like this make it a lot harder to grieve in the way we should be able to.
I am sorry I myself could not be of more help to you, someone may pop along and be able to give you more and better advice.
Good Luck Enaid x