Paying for care in a care home if you have a partner

Transcription

1 Factsheet 39 August 2015 Paying for care in a care home if you have a partner About this factsheet This factsheet explains how being part of a couple can affect a care home resident s eligibility for local authority assistance with the fees and both partners eligibility for social security benefits during the period spent in residential care. It only covers a part of the overall residential charging rules and should be read in conjunction with our other factsheets on care home charging, particularly Age UK s Factsheet 10, Paying for permanent residential care. The information in this factsheet is correct for the period April 2015 March This factsheet describes the situation in England. There are differences in the rules for funding care in a care home in Northern Ireland, Scotland and Wales. Readers in these nations should contact their respective national offices for information specific to where they live see section 13 for details. For details of how to order our other factsheets and information materials mentioned inside go to section 13. Factsheet 39 August of 28

2 Inside this factsheet 1 Recent developments 3 2 The local authority financial assessment or means test Only your own assets should be taken into account Valuation of jointly owned capital Pension Credit rules 10 3 Where a couple both go into a care home The local authority financial assessment means test Pension Credit rules % disregard of private or occupational pensions and annuities 12 5 Temporary residents 14 6 Increasing the Personal Expenses Allowance 15 7 When a partner wants to move from a jointly owned property 16 8 Managing a spouse or partner s affairs Appointeeships Financial affairs, welfare and healthcare 18 9 The information and advice duty Complaints, standards and equality Human rights private and family life Appendix Useful organisations Further information from Age UK 26 Factsheet 39 August of 28

3 1 Recent developments The Care Act 2014 came into force on 1 st April 2015 along with a range of new supporting regulations and a single set of new statutory guidance, which, taken together, describe how the Act should be applied in practice. The aim of the change is to simplify and modernise the system, which had become too complex and to create a new charging regime. The most significant new regulation in relation to this factsheet is the Care and Support (Charging and Assessment of Resources) Regulations 2014, which will be called the charging regulations in the text. The other main source for this factsheet is the new Care and Support Statutory Guidance 2014, which will be referred to as the statutory guidance in the text. These support sections in the Care Act 2014, which cover charging for services; also sections on debt recovery and deprivation of assets. This means that the existing system of adult social care of laws, regulations and guidance, developed over a period of 65 years, has generally been superseded and is now no longer applicable; except in a few cases, for example the complaints regulations. An example of the general revocation is the statutory guidance entitled the Charging for residential accommodation guide, known as CRAG. This is the guidance on which this factsheet was previously based. It will now be based on the documents mentioned above which are listed in with links in the Appendix at section 11. The Care Act 2014 was actually coming into force in two stages, in April 2015 and April However, in July 2015, the government postponed the second part of this until April Some of the key changes being introduced in 2015 are: The promotion of individual wellbeing as an overarching principle within all the activities of a local authority including: assessment, eligibility, prevention, means testing and care and support planning. Factsheet 39 August of 28

4 New national eligibility criterion for both the adult requesting services and their carer(s) leading to rights to services. The previous four local eligibility levels have now become one, set at approximately the previous substantial level. This is the first time carers will have an absolute right to have their assessed, eligible, support needs met. Further information about this can be found in Age UK s Factsheet 41, Assessment, eligibility and care planning. A person-centred, outcomes-focussed, approach to meeting needs. Local authorities must consider how to meet each person s specific needs rather than simply considering what service they will fit into. The whole system is now administered via personal budgets. New market shaping duties to ensure appropriate local service provision. There are many other changes from April 2015, which are described in our range of updated factsheets on adult social care. The delayed April 2016 changes relate to the implementation of new rules on paying for care based on the Dilnot care funding recommendations made in 2013 and the subsequent government response. These include: A lifetime care cost cap (was intended to be 72,000 in 2016) above which the State meets the cost of eligible social care needs; it will be reviewed every five years. This will be excluding a new daily living cost charge for residential care, which will was 230 per week in The introduction of care accounts which will track personal expenditure towards meeting assessed, eligible, care needs, towards the new cap; the accounts will be adjusted annually in line with the rise in average earning. Some local authorities may start to introduce them ahead of April The introduction of independent personal budgets, where contribution to the care account is monitored without the means test. An increased upper capital limit from 23,250 to 27,000 (for nonresidential care and support or residential care where the value of the resident s home is disregarded) or 118,000 (for residential care where the value of the resident s home is not disregarded). These were the figures set out for the now delayed 2016 implementation. Factsheet 39 August of 28

5 An increased tariff income/lower capital limit from 14,250 to 17,000 was proposed for Further details of the 2020 proposed funding-related changes are contained in the government consultation on draft regulations and guidance to implement the cap on care costs and policy proposals for a new appeals system for care and support.. The transitional system In this factsheet we will describe the transitional system that is now in existence between April 2015 and March Government advice on how local authorities should manage the transition is set down in chapter 23 of the statutory guidance. Here, it states that the new national eligibility criteria is intended to allow for the same level of access to care and support to be maintained in adult social care in the vast majority of circumstances and cases. Definitions of terms used in the text In this factsheet references to the local authority or council will refer to the adult social services department of the local authority or council. The relevant social services department may be called the community department or adult social services or older persons department or team. We will use the term local authority in this factsheet to describe this type of service. However, generally, the term local authority can also describe: a county council in England, a district council for an area in England for which there is no county council, a London borough council, or the Common Council of the City of London. The term care home is used to mean any home that is registered with the Care Quality Commission (CQC) to provide accommodation together with personal care and also possibly nursing care. This includes local authority homes and independent homes, which are run by private or voluntary sector providers. These are all regularly inspected and monitored by the CQC based on national standards. The CQC s terms for them are nursing home (requiring a registered nurse to be on site) and care home. A specialist service such as dementia care may also be added to the descriptions found on the CQC s website. Factsheet 39 August of 28

6 A partner, as used within this document, could be part of a married couple (spouse) or a civil partnership. 2 The local authority financial assessment or means test If you are in a couple and one of you needs to go into a care home it is important that you are aware of how the local authority means test rules work; also whether you need to make any claims for benefits either in your own right or as a couple. See Age UK s welfare benefits factsheets for further information on this point. They also cover the major changes to the benefits system that are presently being implemented. If you need to move into a care home you are likely to have to pay at least something towards the cost of this from your own capital (savings, property etc) and/or income (pension, welfare benefits etc). If the local authority is assisting financially with this, you will have been assessed as having eligible care and support needs. Your care and support plan will have identified residential care as the way to meet your needs and a personal budget to meet the cost will have been provided. A financial assessment (also called a means test) must also be undertaken to see whether you will have to pay towards your personal budget. Factsheet 39 August of 28

7 Your local authority must follow the wording of the Care Act 2014 and its new supporting regulations when administering the means test. It must also have regard to the new statutory guidance supporting the Act. This means that it is not legally binding on local authorities in exactly the same way, but they generally do have to apply it. Section 78 of the Care Act 2014 requires local authorities to act under the general guidance of the Secretary of State for Health. This means that local authorities must do what the guidance says unless they have a good, justifiable reason not to in a particular case. The courts previously confirmed this principle in a case under the old law, which used the same words (R v Islington ex parte Rixon ( CCLR 199)). Part 2 of the charging regulations expands on the charging power set out in section 14 of the Care Act 2014 when there is a duty or a power to meet assessed needs; whilst Parts 3-5, and Schedules 1-2, set out the new charging rules in greater detail. The new statutory guidance, at chapters 8 and 9, contains expanded information on charging and deferred payments, whilst Annex A-F, as set out below, provides further details: Annex A: Choice of accommodation and additional payments Annex B: Treatment of capital Annex C: Treatment of income Annex D: Recovery of debts Annex E: Deprivation of assets Annex F: Temporary and short-term residents in care homes. The new statutory guidance appears to be equivalent to the previous CRAG statutory guidance mentioned above. From April 2015, following your assessment, your care and support plan must include your personal budget amount amongst other basic elements. This is a statement that sets out the cost to the local authority of meeting your assessed eligible needs. It includes the amount that you must pay towards that cost yourself on the basis of the financial assessment as well as any amount that the local authority must pay. The personal budget must not include any additional top-up payments that may have been arranged by you to pay for accommodation at a higher cost than the amount specified in your personal budget. Annex A of the statutory guidance sates that: Factsheet 39 August of 28

8 In all cases the local authority must have regard to the actual cost of good quality care in deciding the personal budget to ensure that the amount is one that reflects local market conditions. This should also reflect other factors such as the person s circumstances and the availability of provision. In addition, the local authority should not set arbitrary amounts or ceilings for particular types of accommodation that do not reflect a fair cost of care. 2.1 Only your own assets should be taken into account The local authority cannot include capital or income belonging to your partner in the assessment. This point is confirmed in Annex C of the statutory guidance regarding income and in Annex B about capital; where issues of legal and beneficial ownership are also further explained. It is also confirmed in chapter 8 of the statutory guidance: The local authority has no power to assess couples or civil partners according to their joint resources. Each person must therefore be treated individually. Local authorities should not generally use joint assessment forms that ask for details of both partners finances. However, local authorities may ask for details of your partner s finances on a separate form for the purposes of ensuring that they will not be left with insufficient resources to live on when you go into a care home. 2.2 Valuation of jointly owned capital Part 3 of the charging regulations and chapter 8, and Annex B, of the statutory guidance confirm that the upper capital limit above which a care home resident is expected to meet the full cost is 23,250. If you have less than 23,250, you may therefore qualify for local authority financial assistance. Factsheet 39 August of 28

9 Note: At the time of the local authority means test, where a capital asset other than property is jointly owned, each of the owners is treated as having an equal interest (Annex B, paragraph 12) in it. If, as a couple, you have joint assets and one of you is going to enter a care home, it may be a good idea to divide any joint capital in the proportions owned by each of you before any fees are incurred, or before the means test takes place. Example: If one of a couple with 50,000 in a joint account enters a home then that resident would be assessed as having 25,000 1,750 above the upper capital limit. However 3,500 would have to be spent from the joint account before the overall total fell to 46,500 and the resident s apparent share to 23,250. Dividing the joint account at the outset saves the couple having to spend more capital than is necessary before the resident s assessed share falls below the upper capital limit. Annex B confirms that capital can include buildings or land. A property asset is assessed based on the sale value of the care home resident s beneficial interest in it. This means their right to its sale value on the open market to a willing buyer at the time of the means test. However, there is no explicit reference to this approach to the property split that is similar to the wording in the previous statutory guidance (called CRAG), now superseded. At 7.017, CRAG had stated that: Where a resident is a joint beneficial owner of property, i.e. he has the right to receive some of the proceeds of a sale, it is the resident's interest in the property which is to be valued as capital, and not the property itself. It now appears to be dealt with as an exception to the 50:50 capital rule (described above) in paragraph 12 of Annex B, which states that: Where a person has joint beneficial ownership of capital, except where there is evidence that the person owns an unequal share, the total value should be divided equally between the joint owners and the person should be treated as owning an equal share. Once the person is in sole possession of their actual share, they can be treated as owning that actual amount. The willing buyer/market value rule is dealt with at paragraphs 14 and 15 of Annex B. Factsheet 39 August of 28

10 Jointly owned property is disregarded as long as the partner not going into the care home remains living in it. It must have been occupied in part or whole as the main or only home of the person going into the care home prior to admission. This is confirmed in Annex B of the statutory guidance and Part 5 of the charging regulations. Here, the guidance also requires any valuation disputes to be independently resolved within the 12-week property disregard period. For further information on care home funding and property, see Age UK s Factsheet 10, Paying for permanent residential care and Age UK s Factsheet 38, Treatment of property in the means test for permanent care home provision. 2.3 Pension Credit rules If you are a couple and one of you goes into a care home on a permanent basis, the Pension Service treats you as two separate individuals in assessing eligibility for Pension Credit. For both the resident and the person remaining at home, eligibility for the benefit will depend on the level of their individual income and capital. Any jointly owned capital will be divided. If the resident is passing 50% of a private pension to his/her spouse, then the Pension Service will count it as income for the person at home. However, the Pension Service will also count 100% of a private pension belonging to the resident as income even if 50% is passed to his/her spouse (see section 4 below). Note: The Government is increasing women s state pension age, which is also linked to the qualifying age for pension credit for both men and women. It is increasing from 60 to 65 between 6 April 2010 and November 2018, and then it will continue to increase, for both men and women, to 67 by October In April 2015, it is 62.5 years. However, they have decided to keep the property-related disregard for relatives living with someone who goes into a care home at 60 years of age. See Age UK s benefits-related factsheets for further information. Factsheet 39 August of 28

11 3 Where a couple both go into a care home 3.1 The local authority financial assessment means test The local authority has to assess you as individuals regardless of whether you go into the same care home together. You should be means tested separately based on your own capital and income, including your share of any jointly held assets. 3.2 Pension Credit rules In most cases a couple who both enter a care home on a permanent basis will be treated as two separate individuals in separate households, even if they share a room in the same care home. The Pension Service will look at your particular circumstances before deciding whether to treat you as two individuals in separate households or a couple in the same household. The Decision-makers Guide (Department for Work and Pensions), at paragraphs , states that whether members of a couple are members of the same household is a question of fact and degree. Decisionmakers are given examples of what it would be useful to consider in deciding whether there is a household: structure of days do they decide (even by default) at what time to get up, have meals, go to bed, etc?; how the accommodation they live in is to be arranged - do they decide which room is to be the dining room, the living room, etc?; can they decide who can come and stay with them, and for how long?; can they insist that other people do not enter their accommodation without permission?; can they decide the decor and furnishing of their accommodation?; do they have facilities for preparing food and making tea, coffee and other hot drinks?; do they have responsibility for running the household - are they responsible for getting repairs done, replacing domestic appliances or buying food? Factsheet 39 August of 28

12 If there is no household there cannot be a common household and two separate benefit units, each with a single claimant, will exist. Seek advice if you are treated as a couple in this situation. If you go into different homes, or live in different sections of a care home, which is registered to provide both accommodation with personal care and accommodation with nursing and personal care, there should be no problem arguing that you should be treated as two separate individuals. If you are being treated as a couple for Pension Credit, and so are being paid the couples rate rather than the amount for two individuals, the authority should apply the savings disregard of up to 8.60 per week. The savings disregard for a single person is This is confirmed in Annex C of the statutory guidance and Part 4 of the charging regulations. See Age UK Factsheet 48, Pension Credit, for further information on this benefit. 4 50% disregard of private or occupational pensions and annuities Often one of a couple has a significantly larger income than the other. The rules set out below can reduce the likelihood of the other person experiencing financial hardship if the main income holder goes into a care home. Where one of a couple who are married or have a civil partnership enters a care home, 50% of that person s occupational (works) pension, personal pension or payment from a retirement annuity contract is disregarded (ignored) in the means test it is passed to the person remaining at home. The 50% disregard only applies where: the resident passes at least half of his or her occupational or private pension or retirement annuity income back (if the resident has more than one such source of income, it must be 50% of the total income from these sources); and the spouse or civil partner lives anywhere other than in the same care home as the resident. Factsheet 39 August of 28

13 The disregard does not apply to: partners who are neither married nor civil partners (but see the discretion to increase the Personal Expenses Allowance below); residents who pass an amount less than 50% of their relevant income to their spouse or civil partner. The resident is not obliged to pass this money to the spouse but the disregard can only be applied where money is actually being passed back. If the resident dies, or the couple divorce or end their civil partnership, or the other person moves to live in the same care home as the resident, then the disregard will cease. The 50% disregard rule is confirmed in Annex C of the statutory guidance. Note: The Department for Work and Pensions (DWP) does not recognise this charging rule and will assess the resident s eligibility for Pension Credit as if this money was still available to the resident. However, the local authority must adjust the resident s assessed contribution to take account of any resulting shortfall in Pension Credit as part of the financial assessment as only the amount of benefit in payment (except where there is a reduction for reasons such as an earlier overpayment) is taken into account. If the spouse or civil partner is already legally entitled to part of the resident s private pension (for example, because of a Court Order) then this amount will be treated as already belonging to the spouse. The resident can then pass 50% of the rest of the private pension to his or her spouse as well as the amount covered by the existing arrangement. Note: The person eligible to receive the disregarded income does not have to accept it. To do so may affect entitlement to their means tested benefits such as Pension Credit, Housing Benefit or Council Tax Reduction. If you are unsure whether receiving this money will leave them better off, seek further advice from one of the agencies mentioned on section 12. Factsheet 39 August of 28

14 If someone else is managing the resident s finances under a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA), the attorney can usually decide whether to pass the private pension income to a spouse or civil partner, including situations where the attorney is the person who will receive the money. An exception will be if the donor has imposed specific restrictions or conditions in the Power of Attorney preventing this. See Age UK s Factsheet 22, Arranging for others to make decisions about your finances or welfare, for more detailed information. 5 Temporary residents Annex F of the statutory guidance covers temporary or short-term care home residents. They are also mentioned at various points in the charging regulations. It confirms that a local authority can generally choose whether or not to charge you where it is arranging to meet your needs. Also, that in the case of a short-term resident in a care home, the local authority has discretion to charge you as if you are having your needs met in another way, reflecting the fact that you intend to return home. Social security benefits are not affected by the local authority s calculation. When assessing how much a temporary resident should contribute, Annex F requires local authorities to carefully consider the needs of couples who receive Pension Credit. If, as a couple, you receive Pension Credit and one of you enters a care home for a temporary stay, it will continue to be paid as if you were both still at home. The local authority should generally ignore the amount paid to the partner remaining at home. It may need to look into whose bank account the Pension Credit gets paid into to ensure that the means test is carried out appropriately. Local authorities have previously been instructed to ensure that the partner remaining at home receives, as a minimum, the basic level of Pension Credit for a single person and any additional amounts to which they may be entitled in their own right. There is no such provision in the new statutory guidance. However, paragraph 5 Annex C states that: Factsheet 39 August of 28

15 Only the income of the cared-for person can be taken into account in the financial assessment of what they can afford to pay for their care and support. Where this person receives income as one of a couple, the starting presumption is that the cared-for person has an equal share of the income. A local authority should also consider the implications for the cared-for person s partner. While a resident s stay in a care home is temporary, Annex F requires that allowance should be made for some household expenses. If the local authority allows a single person s rate for the person remaining at home when apportioning the Pension Guarantee Credit they may expect that household expenses are shared equally and therefore only allow for half the expenses. This allowance may reduce further if there are other non-dependant adults living in the household who could be expected to contribute to the household expenses. See Age UK s Factsheet 58, Paying for temporary care in a care home, for further information on this subject. 6 Increasing the Personal Expenses Allowance The local authority has to allow a care home resident to retain a Personal Expenses Allowance (PEA) of per week as part of the means test calculation. You should not be asked to put your PEA towards the cost of your assessed care needs as it is intended for personal use. This figure is set out in Part 2 of the charging regulations and Annex B of the statutory guidance. Annex C and Chapter 8 of the statutory guidance confirm that local authorities have a discretionary power to vary the Personal Expenses Allowance (PEA) above the national set level in a range of circumstances. Annex C provides some illustrative examples to assist local authorities in the use of this discretionary power. The following is one of the illustrative examples: Factsheet 39 August of 28

16 Where a person s property has been disregarded the local authority should consider whether the PEA is sufficient to enable the person to meet any resultant costs. For example, allowances should be made for fixed payments (like mortgages, rent and Council Tax), building insurance, utility costs (gas, electricity and water, including basic heating during the winter) and reasonable property maintenance costs. If the local authority decides to vary the PEA, part of your income, which would otherwise be paid towards your personal budget, can be made available to a partner at home. This can be particularly helpful for couples who are neither married or civil partners, and who are not covered by the 50% pension disregard set out in section 4. Any money passed back by way of the 50% pension disregard may affect the partner s eligibility for means tested benefits. If the partner currently receives any such benefits it may be worth checking whether they will in fact benefit from receiving some of the resident s income in this way instead. If it seems that the partner at home would benefit from an arrangement of this type, ask the local authority to use its discretion to allow the resident to have an increased PEA to help support the partner at home. This is a discretionary power so the local authority does not have to agree but if they refuse your request without properly considering it you can use the complaints procedure to have the decision reviewed. 7 When a partner wants to move from a jointly owned property When one of a couple enters a care home on a permanent basis the local authority has to disregard the resident s interest in their former home for as long as the other spouse or partner remains there. However, the partner or spouse may at some point wish to move from that property, perhaps to somewhere smaller and more manageable. Once the original property has been sold, the disregard ends and the resident s share of the proceeds could be taken into account in the financial assessment. Factsheet 39 August of 28

17 Annex E of the statutory guidance, which covers deprivation of assets, states that, where necessary, residents should be able to use part of their share of the sale proceeds to enable their spouse to buy a more suitable property. It provides the following case example to illustrate this point: Max has moved into a care home and has a 50% interest in a property that continues to be occupied by his civil partner, David. The value of the property is disregarded whilst David lives there, but he decides to move to a smaller property that he can better manage and so sells their shared home to fund this. At the time the property is sold, Max s 50% share of the proceeds could be taken into account in the financial assessment, but, in order to ensure that David is able to purchase the smaller property, Max makes part of his share of the proceeds from the sale available. In such circumstance, it would not be reasonable to treat Max as having deprived himself of capital in order to reduce his care home charges. Unmarried partners or other relatives benefiting from a disregard should ask to be treated in the same way. The statutory guidance does not specify how any other capital remaining after the purchase of the new property should be treated and local authorities have adopted different approaches to this. Further information on property can be found in Age UK s Factsheet 38, Treatment of property in the means test for permanent care home provision. Factsheet 39 August of 28

18 8 Managing a spouse or partner s affairs 8.1 Appointeeships If a person receiving social security benefits is unable to manage his or her affairs, the Secretary of State for Work and Pensions (through the local social security office) can appoint someone else to exercise on behalf of the claimant (the person in the home) the right to make claims and receive benefit for the resident. An appointee would normally be a close friend or relative who visits the older person regularly. The local authority may also be an appointee and as a last resort, the home owner can act as appointee, but in such cases he or she must keep a record of the money collected on the person s behalf. An appointee s responsibilities only cover social security benefits. The claimant and the prospective appointee will be interviewed before any appointment is made. 8.2 Financial affairs, welfare and healthcare While you are able to make decisions, you may want to consider how you would want your affairs dealt with if you lose the capacity to do this in future. The Mental Capacity Act 2005 was implemented in full in October It made provision for the replacement of the previous systems of Enduring Power of Attorney (which covered financial and property affairs) and Receivership under the Court of Protection, with a Lasting Power of Attorney and the new role of Deputy under the Court of Protection. A Lasting Power of Attorney still enables you to choose someone to take financial and propertyrelated decisions on your behalf, but you can now also choose someone to take welfare and healthcare decisions. Existing Enduring Powers of Attorney are still valid under the new legislation. It is also possible to replace an Enduring Power of Attorney with a Lasting Power of Attorney if you have the capacity to make the decision yourself. Age UK s Factsheet 22, Arranging for others to make decisions about your finances or welfare, has more detailed information on Powers of Attorney and the role of the Deputy under the Mental Capacity Act Factsheet 39 August of 28

19 9 The information and advice duty Section 1 of the Care Act 2014 states that each local authority must establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and support for carers. The service must provide information and advice on the following areas: the local care and support system and how it operates the choice of types of care and support, and the choice of providers available to those who are in the authority s area how to access the care and support that is available how to access independent financial advice on matters relevant to the meeting of needs for care and support, and how to raise concerns about the safety or well-being of an adult who has needs for care and support. A local authority must have regard to the importance of identifying local people who would benefit from this service to ensure that its provision enables them to: to identify matters that are or might be relevant to their personal financial position in this context to make plans for meeting needs for care and support that might arise, and to understand the different ways in which they may access independent financial advice on matters relevant to the meeting of needs for care and support. The information and advice provided or arranged by the local authority must be accessible and appropriate. Independent financial advice means financial advice provided by a person who is independent of the local authority in question, and who has appropriate qualifications. Factsheet 39 August of 28

20 10 Complaints, standards and equality If you are not satisfied with any aspect of the service that you receive from a local authority or a care home, you can make a complaint. This could relate to elements such as: the processing of the means test, the need for clear and transparent information and advice, standards of communication and possible delays. This may be via the local authority complaints procedure or the internal system in the care home once you are a resident. People who arrange and fund their own residential care also have a right to complain to the Local Government Ombudsman. The implementation of the Care Act 2014 in April 2015 has not affected the existing complaints system For further information see Age UK s Factsheet 59, How to resolve problems and make a complaint about social care. Note: From April 2016 a new appeals system is due to be implemented which will enable decisions taken by a local authority under Part 1 of the Care Act 2014 to be challenged and reviewed. Concerns about care home providers can also be expressed to the Care Quality Commission (CQC) who has a local worker who is responsible for monitoring the service standards of care homes in each area. Residential care providers must adhere to the standards set down by the CQC. New Fundamental standards replaced the existing Essential standards in April 2015, providing a legal right to be registered to provide care home services. These now include sections on a duty of candour and the employment of fit and proper people. This guidance is required to help service providers comply with regulations that have been created under the Health and Social Care Act All of this can be viewed on the CQC s website, see section 12 further details. See the contact details in section 11 for the Equality Advisory and Support Service. This advice line can help you if you have any issues regarding unequal treatment in the provision of services, for example if it is based on your age, which is illegal under equalities legislation. Factsheet 39 August of 28

21 10.1 Human rights private and family life The British Institute of Human Rights has provided the following case example to highlight the issue of couples being split up in contravention of their human rights when they need care home accommodation. Mr and Mrs Driscoll had lived together for over 65 years. He was unable to walk unaided and relied on his wife to help him move around. She was blind and reported that she used her husband as her eyes. They were separated after Mr Driscoll became unwell and was moved into a residential care home. Mrs Driscoll wanted to move to the home with her husband but was told she did not meet the criteria used to by the local authority to allocate places. Speaking to the media, Mrs Driscoll said We have never been separated in all our years and for it to happen now, when we need each other so much, is so upsetting. I am lost without him we were a partnership. Human rights experts and older people's organisations pointed out that this was a breach of the couple's right to respect for their private and family life (Article 8), protected by the Human Rights Act A public campaign launched by the family, supported by various human rights and older people s organisations and the media, used these human rights arguments to convince the local authority to reconsider its decision. As a result Mrs Driscoll s needs were reassessed by social services, and she was offered a place in the same care home as her husband. See link: 11 Appendix There are four main sources for the new law and rules on adult social care on which this factsheets is based: 1/ The Care Act Part 1 of the Act is the main source for this factsheet as it replaces over 60 years of adult social are legislation. Factsheet 39 August of 28

22 2/ Care and Support Statutory Guidance, issued under the Care Act 2014: /43380_ _Care_Act_Book.pdf This large document supports the Care Act 2014 and the regulations listed below. A local authority must have regard to its relevant sections when administering the charging system. There is significant overlap with some of the regulations for example regarding section 8 Charging and financial assessment and the Annexes at the end of the document, particularly B and C on the treatment of capital and income. 3/ The final negative regulations under part 1 of the Care Act 2014: / _Care_Act_Negative_Regulations_Master.pdf This document contains many new regulations including the Care and Support (Charging and Assessment of Resources) Regulations 2014, which closely resembles the previous CRAG document that has now been superseded. 4/ The final affirmative regulations under part 1 of the Care Act 2014: /43738_ _Regs_Affirmative_Accessible.pdf A significant regulation within this document is the Care and Support (Eligibility Criteria) Regulations Note: the negative and affirmative elements in the above titles relate their legal status at the time of writing, in March Factsheet 39 August of 28

23 12 Useful organisations Care Quality Commission (The) The independent regulator of adult health and social care services in England, whether provided by the NHS, local authorities, private companies or voluntary organisations. It also protects the rights of people detained under the Mental Health Act. CQC National Customer Service Centre, Citygate, Gallowgate, Newcastle upon Tyne, NE1 4PA Tel: (free call) Website: Carers UK National charity providing information and advice about caring alongside practical and emotional support for carers. Also campaigns to make life better for carers and influences policy makers, employers and service providers, to help them improve carers' lives. 20 Great Dover Street, London, SE1 4LX Tel: (free call) Website: Carers Trust Website: Carers Wales can be contacted at: Tel: Website: Factsheet 39 August of 28

24 Citizens Advice National network of advice centres offering free, confidential, independent advice, face to face or by telephone. In Wales there is a national phone advice service on It is available in some parts of England on In Scotland, there is a national phone advice service on To find details of your nearest CAB check your phone book, or in: England or Wales, go to Northern Ireland, go to Scotland, go to Visit for online information Department of Health Government department with overall responsibility for social care including residential care homes. Tel: (national call rate) Website: Elderly Accommodation Counsel Provides information on all forms of accommodation, support and care for older people. EAC FirstStop Advice, 3rd Floor, 89 Albert Embankment, London, SE1 7TP Tel: info@firststopadvice.org.uk Website: Equality Advisory and Support Service This new service replaced the helpline run by the Equality and Human Rights Commission in October FREEPOST Equality Advisory Support Service FPN4431 Tel: Textphone: Website: Factsheet 39 August of 28

25 Independent Age Provides an information and advice service for older people, their families and carers, focusing on social care, welfare benefits and befriending services. 6 Avonmore Road, London, W14 8RL Tel: Adviceline: charity@independentage.org Website: Pension Service (The) For details of state pensions including forecasts and how to claim your pension. Tel: Textphone: State Pension Forecasting Team: (lo-call rate) Website: Relatives & Residents Association (The) The Relatives & Residents Association gives advice and support to older people in care homes, their relatives and friends. 1 The Ivories, 6-18 Northampton Street, London, N1 2HY Tel: info@relres.org Website: Veterans UK Website bringing together services for veterans including advice on pensions, compensation and welfare services. Tel: veterans-uk@mod.uk Website: Factsheet 39 August of 28

26 13 Further information from Age UK Age UK Information Materials Age UK publishes a large number of free Information Guides and Factsheets on a range of subjects including money and benefits, health, social care, consumer issues, end of life, legal, issues employment and equality issues. Whether you need information for yourself, a relative or a client our information guides will help you find the answers you are looking for and useful organisations who may be able to help. You can order as many copies of guides as you need and organisations can place bulk orders. Our factsheets provide detailed information if you are an adviser or you have a specific problem. Age UK Advice Visit the Age UK website, or call Age UK Advice free on if you would like: further information about our full range of information products to order copies of any of our information materials to request information in large print and audio expert advice if you cannot find the information you need in this factsheet contact details for your nearest local Age UK Factsheet 39 August of 28

27 Age UK Age UK is the new force combining Age Concern and Help the Aged. We provide advice and information for people in later life through our, publications, online or by calling Age UK Advice. Age UK Advice: Website: In Wales, contact: Age Cymru: Website: In Scotland, contact Age Scotland by calling Silver Line Scotland: (This line is provided jointly by Silver Line Scotland and Age Scotland.) Website: In Northern Ireland, contact: Age NI: Website: Support our work Age UK is the largest provider of services to older people in the UK after the NHS. We make a difference to the lives of thousands of older people through local resources such as our befriending schemes, day centres and lunch clubs; by distributing free information materials; and taking calls at Age UK Advice on If you would like to support our work by making a donation please call Supporter Services on (8.30 am 5.30 pm) or visit Legal statement Age UK is a charitable company limited by guarantee and registered in England and Wales (registered charity number and registered company number ). The registered address is Tavis House, 1-6 Tavistock Square, London, WC1H 9NA. Age UK and its subsidiary companies and charities form the Age UK Group, dedicated to improving later life. Factsheet 39 August of 28

28 Disclaimer and copyright information This factsheet has been prepared by Age UK and contains general advice only which we hope will be of use to you. Nothing in this factsheet should be construed as the giving of specific advice and it should not be relied on as a basis for any decision or action. Neither Age UK nor any of its subsidiary companies or charities accepts any liability arising from its use. We aim to ensure the information is as up to date and accurate as possible, but please be warned that certain areas are subject to change from time to time. Please note that the inclusion of named agencies, websites, companies, products, services or publications in this factsheet does not constitute a recommendation or endorsement by Age UK or any of its subsidiary companies or charities. Every effort has been made to ensure that the information contained in this factsheet is correct. However, things do change, so it is always a good idea to seek expert advice on your personal situation. Age UK. All rights reserved. This factsheet may be reproduced in whole or in part in unaltered form by local Age UK s with due acknowledgement to Age UK. No other reproduction in any form is permitted without written permission from Age UK. Factsheet 39 August of 28