The cost of care for the elderly in the UK

The cost of care for the elderly in the UK is rising at an alarming rate. The past year alone has seen an increase of almost 10%, so that a residential care placement will cost £41,600 per annum and a nursing home placement £56,056 according to healthcare analysts Laing Buisson.

The spiralling costs of care are draining the funds of many individuals who, until recently, would have had enough set aside to fund their care for years to come. But with care home fees now commonly reaching £8,000 – £10,000 a month, those in care may be forced to turn to family members to help them pay ‘top up fees’ to support their loved ones.

As the population ages, the need to identify who should pay for long-term care has become a vital issue for private client solicitors. Professional deputies should know how to access appropriate advice and executors have a legal duty to maximise the value of an estate. An important question becomes: how aware are they of state support for paying for future care?

This crisis in the healthcare system means that it is more important than ever for those in care and their families to inform themselves of their potential entitlement to full financial support from the NHS. Should a patient’s primary need be healthcare (rather than social care), they can apply for full financial support, namely NHS Continuing Healthcare (CHC). This help is not means-tested and even applies to care given in private nursing homes. A combination of people being unaware of their entitlement to this funding and its guidelines being applied too restrictively is resulting in people missing out; many who are eligible to claim CHC are failing to do so. NHS England data shows that, despite an ageing population, numbers deemed eligible for this funding have dropped by 18% in the past five years.

The Office of the Public Guardian’s professional deputy standards has stated the appointed deputy of an individual and delegated staff must know how to access appropriate advice on CHC. Failure to consider investigating whether clients should be receiving CHC can lead to complaints and professional negligence claims against the deputy or professional executors. What’s more, time can be of the essence as windows to appeal are strict when challenging NHS’ assessments for CHC eligibility.

Full NHS funding is not based on medical diagnosis or on how well a person is being taken care of, but on the type and amount of care a person requires to ensure their needs are met. Deputies and executors should also consider making a retrospective claim for unassessed periods of care, which may be made for those in long term care since 2012 or who have since died. The NHS has had to pay out over £400m in redress for past periods of care.

Individual’s requiring long term care should be assessed for NHS CHC by a multi-disciplinary team. Responsibility for assessment lies with the local Integrated Care Board (ICB) in England or Health Board in Wales. Should a person not be the responsibility of the NHS, it falls to the local authority to determine their needs. Unlike the NHS, however, the local authority will assess that individual’s ability to pay. As it stands, if a person has capital is in excess of £23,250 (and £50,000 in Wales), they must personally meet the full cost of care.

A further concern is the sheer number of people who are wrongly assessed, with 30% who should be eligible for funding being turned away. The subjective nature of the assessment process has led to a postcode lottery. Quarterly statistics released by NHS England shows that the number of individuals receiving CHC in NHS Bury is 230 per 50,000 of the population compared to 19 in NHS Berkshire West. In addition, Department of Health statistics that, following an assessment for CHC, 28% were eligible in the North West and 23% in the North East and Yorkshire as opposed to 17% in the South East and 18% in the South West.

Families who are not satisfied with a decision can challenge it through the NHS appeals process, a two-stage affair culminating in an Independent Review Panel. Albeit this can be a time-consuming process, Department of Health statistics show that 22% of such challenges are successful at Integrated Care Board (ICB) level and a further 30% at national level.

Whilst families can pursue a claim themselves, they find it a very emotive and complicated process. The health authority appeal process is not legal, it is a dispute resolution process and the skills developed by lawyers – analytical, evaluating, interpreting and advocacy is key in being successful.

With law firms however, assessment to assist people in identifying if they have a case for NHS CHC are at no cost and in most cases, they are offered the choice of a ‘no win no fee’ Contingency Fee Agreement and an hourly rate basis. The Contingency Fee Agreement provides people with much-needed certainty as they know exactly what will be charged if they win the case and it makes no difference how much time is spent pursuing the claim to a successful conclusion. In addition, there is peace of mind that if the claim is lost, there is no legal costs. In contrast, it is worth bearing in mind that there are a number of unregulated advocacy companies offering NHS CHC advice, but engaging these, as opposed to trusted law firms, can be risky.

There is no doubt that the provision of long-term care is in crisis, but the Government has been painfully slow to respond. It has delayed the imposition of the ‘social care cap’. This policy was designed to place an £86,000 cap on the cost to an individual of social care fees, with the Government then subsiding the rest. This failure only adds to the problem of how to fund the care needs of our ageing population.

For all these reasons, it is imperative for relevant parties to be aware of the distinction between health and social care so that an individual can be assessed correctly and fairly. It means the difference between free care and care that it means tested as NHS CHC may release them from having to shoulder the burden of crippling healthcare costs.

Lisa Morgan is a Partner and Head of the Nursing Care Fee Recovery Team at Hugh James Solicitors