Deprivation of Assets or A Genuine Gift?
Tameside Metropolitan Borough Council (19 014 246)
The Health and Social Care Ombudsman ruled that for an individual to be found deliberately depriving themselves of funds, then the Local Authority must apply the test below:
If avoiding paying for care fees was a significant motivating factor
Whether a need for care was foreseeable
Whether a need to pay for care was foreseeable
However, how would a Local Authority evidence the motivations if this were carried out way before an individual needed care? If anyone of pre-retirement age decides to put their property and assets into a trust for their children when they knowingly do not have any care needs and might well not have any care needs for the foreseeable future this could be an impossible task for the Local Authority to prove and to claim back any funds through deliberate deprivation of assets.
It is easier to evidence if an individual has care needs and then they decide to gift their house of assets as both the last two points would then have been met and evidence can be put forward to suggest that the first point had to be a motivating factor. Nevertheless, again, you cannot prove the first point without reasonable doubt, unless of course, the individual is citing this as their motivating factor, in which case would anyone do that?
I agree with the decision from the Ombudsman and everybody should have a right and a choice of what to do with their property and finances, we cannot enter a realm of having our financial priorities dictated to us by the local or central government as we live in a democracy and a somewhat free country. There are many people who I am sure will not need to have their care needs to be met by the local authorities so why should they worry now about having to put money aside just in case they might face a case later on? There are also people who will never require any care needs so again they should be free to do with their hard-earned cash what they would like to do. It is a difficult one though as the cost of social care is spiralling, and some individuals are not receiving the care that they require due to a lack of funding in the sector. Do we have a responsibility to ensure that our own needs will be met should we require this when we are older or if we have an accident? This is, of course, a very full and separate argument which provokes opinions on all sides and is one which you will have your own opinions about. Let us get back to the proof of the motivating factor.
How are local authorities going to prove that avoiding social care is a motivating factor in people’s decisions to deprive themselves of assets deliberately?
Let us have a look at the word significant
1. Sufficiently great or important to be worthy of attention; noteworthy.
"a significant increase in sales"
2. Having a particular meaning; indicative of something.
"in times of stress, her dreams seemed to her especially significant"
I could gift my property now to my children, would this draw any attention to myself? No, I doubt it would, and I doubt that it could ever be proven in 30-40 years when I require a substantial amount of care that a significant motivating factor was to avoid care fees. So what if I was 70 plus and I did the same, well that starts provoking a different mindset I am sure, especially when we look at the statistics of 1 in 4 people over the age of 65 having one or more long term health conditions. However, again, what if I were 70 and was very fit and well would that provoke the same responses? Are we considering this as an ageist idea? What is evident here is that the Local Authorities have to be very mindful of how they endeavour to prove what is a deprivation of assets based on the motivating factor. We are not allowed as a society to make different assumptions based on a protected characteristic such as age, so whatever the local authorities decide to do to ensure that they can prove to avoid care fees is a motivating factor will have to be considered legally and based on substantial evidence.
With matters such as this, this will likely be assessed on a case by case basis rather than blanket criteria. It will be regarding whether that specific individual appears to have made decisions relating to their finances to avoid care fees. The evidence will have to be carefully assessed and decisions made by trained and qualified individuals to avoid complications and generic decisions.
Can we foresee if we will require care in the future?
none of us can unless of course, we are already struggling to manage and in which case then criteria two and three have been covered so really you could evidence that with that informed knowledge of a requirement of care any decision to hand over large sums of money or your property could be perceived as deliberate deprivation of assets?
Should we fund our care?
Should we be allowed to spend our money on what we like and let our taxes pick up the bill?
Regardless of your opinion, it is a very real prospect that gifting your house or your assets could be perceived as deliberate deprivation of assets what is not clear is how this is going to be evidenced by the local authority if you have a requirement for care funding from them.
If you are making a substantial gift, speak to Nellie Supports about how we can provide all the evidence you need to reduce the risk later down the road.