Memo DMG 18/11
AA OR DLA CLAIMANTS ENTERING CARE HOMES -
FUNDING

Contents     Paragraphs
Introduction     1 - 2
Background      3 – 7
Action to be taken      8 – 11
Annotations
Contacts

INTRODUCTION

1      This memo gives guidance to DMs when a person receiving AA or DLA enters a Care
Home.

2      Recent case law has criticised the Secretary of State for making insufficient enquiries
when determining whether a person will be self-funding¹ on entering a Care Home.

¹ CA/2364/2009

BACKGROUND

3      The appeal concerned a claimant who was in receipt of AA when she entered a Care
Home. She was self-funding until 30.03.05, when the LA started meeting the costs of
her care. The Department was notified and a questionnaire was sent to the LA. This
established that there was no agreement to repay the costs of the care home funding
at that time. On that evidence the DM decided that the claimant was not a prospective
self-funder and a payability decision was made on 21.10.05 ceasing payment of AA.

4      On 30.7.08 the claimant’s representative informed the Secretary of state that she was
selling her house and would be repaying the cost of the care home funding. The LA
was contacted by telephone and the Secretary of State was informed that a decision
had been made in 2005 to put a charge on the property from 30.03.05.
 
5      On this evidence the DM made a supersession decision putting AA back into payment
from 4.8.08. This decision was disputed as the LA was claiming re-payment of the
funding back to 2005. On the Secretary of State contacting the LA again it was stated
that there had been an intention to place a charge on the property in 2005. However,
this was not possible as the property was co-owned by the daughter. Also the family
denied initially that the claimant had a property asset. The family only started to co­
operate with the LA in April 2008, and agreed to place the house on the market.
Unfortunately the claimant died on 10.2.09.

6  An appeal was made to the FtT who upheld the DM’s supersession decision. The
claimant’s representative then appealed to the UT. The UT Judge allowed the appeal¹.
He was also critical of the level of fact finding and the failure to correctly revise the
decision of 21.10.05 on the grounds of official error.

¹ CA/2364/2009

7      It has previously been established in case law¹ that where payment of benefit should
be for the whole period of self-funding², the payability decision should be altered by
way of revision on the grounds of official error. This enables DLA or AA to be paid
from the date self-funding began.

¹ R(IB)2/04; CA/313/2009; ² SS (AA) Regs 1991, s 8(6); SS (DLA)Regs 1991, s 10(8)

ACTION TO BE TAKEN

8      As a result of this decision, when a claimant enters a care home DMs need to
establish

1.      whether there is any property involved that may be sold at any time, or any
asset available to pay the care home costs and
2.      if so whether the LA will
2.1     be considering placing a charge on the property or assets or
2.2     entering into an agreement with the claimant.

Payment of benefit should be suspended until these enquiries have been made.

9      The first enquiries should be made of the claimant or their representative to establish if
there is any property that could be sold or any other assets available, in order to pay
the care home fees. Then enquiries can be made of the LA as to what their intention in
relation to the property or other assets is going to be, either now or in the future.
    
10     If it is established that there is no property involved (either where the claimant has
been living or any other property in which the claimant has an interest), or other asset
available, the suspension can be lifted. The DM should also decide if there should be
a payability decision made, and if the benefit should be withheld whilst the LA are
funding the Care Home.

11     If it is established that
1.      there is property involved and
2.      the LA make a decision that they will be considering making an agreement on a
deferred payment, or placing a charge on the property

then on the balance of probabilities the claimant will be self-funding. The suspension
can be lifted and the benefit put into payment in accordance with DMG 61738 et seq.

ANNOTATIONS

Please annotate the number of this memo (Memo DMG 18/11) against DMG
paragraphs 61738 – 61744.

CONTACTS

If you have any queries about this memo, please write to Decision Making and
Appeals (DMA) Leeds, GS36, Quarry House, Leeds. Existing arrangements for such
referrals should be followed, as set out in Memo DMG 14/11  - Obtaining legal advice
and guidance from DMA Leeds.
DMA Leeds: [June] 2011