It’s my money and I’ll make gifts if I want to….

Where do you draw the line between allowable gifts and shovelling money out from under the mattress for someone who is in, or going in to long-term care?

This case was reported recently and has made it clear that going in to care does not take away your right to make reasonable gifts.

Mrs Y went into care when she was 80, after a stroke. Assets of £250,000 meant that she paid her own fees.

By 2015, her assets fell to the £23,250 funding threshold and her daughter approached the County Council for help, who then began paying her fees (less her income).

The council then did a fuller assessment. The family revealed that they had received annual cash gifts, totalling nearly £75,000, from Mrs Y since her admission to the home.

The council decided under the CRAG rules (now embedded in The Care Act) that was deliberate Deprivation of Capital, as they were made with the intention of reducing the amount Mrs Y paid for their care. The Council stopped paying her fees and demanded repayment. Mrs Y's family paid this back, but complained to the Ombudsman.

The Ombudsman decided that the council took action without a proper financial assessment, without proper evidence, and it did not take into account the fact that there was a pattern of gifting before Mrs Y went into care, nor provide any proof of haste to dispose of her assets.

Mrs Y had paid for herself for 9 years. More than 70% of her money was spent on care fees.

The ombudsman ordered the council to apologise, reassess Mrs Y's situation, and repay her any fees to which she is entitled.

‘The guidance states people with care needs are free to spend their money as they see fit' commented the Local Government Ombudsman. 'Just because someone might be living in a care home, it does not mean they should not be able to spend their money on things other than their care, and this includes continuing to give gifts to friends and family’.

Last December, the government scrapped their plans for a cap on social care costs. This had originally been set at £72,000 for those over 65, and was due to come into effect in 2020.

A green paper setting out the government's proposals for social care reform was promised by this summer. But I wonder if they will really have the resources to address this long running saga. The unfairness that runs through the care funding system causes untold grief for clients of ours. But for now, all you can do is get good advice and get it early!

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