Spousal financial responsibilities on entry into residential care: LAC (2002)11

The revision of the mandatory Charging for Residential Accommodation Guide (CRAG) could cause problems as it seems to suggest a new way of making spouses contribute to care fees of their partner entering long-term care. David Coldrick, a partner at Wrigleys solicitors, examines the guidance assessing the real implications of the revision.

The revision of mandatory Charging for Residential Accommodation Guide (CRAG) in March 2002 is important. The main changes were to Section 11 ‘Liability of Relatives’ and must be considered in context. It might appear to suggest that there is some new way of making spouses contribute to the care fees of their partner entering long-term care. Guidance does not however change the underlying law. The law has not changed. But just as odourless paint can make a mess of the clothes of the unwary so the gloss of this guidance can potentially create some sticky problems if not avoided. The author would suggest it is designed that way. It is likely that local authorities will seek to pursue spouses more vigorously than in the past. This is despite Lord Hunt's comments that the new guidance, which has been long planned, 'will not be to encourage councils to seek more contributions from relative, rather it will be to set out how the rules should operate in practice.' (Hansard HL Col 1978-9 3 May 2001) Forewarned is forearmed.

Readers may be aware that Age Concern placed an amendment through the Lords to the Health and Social Care Bill, now the Health and Social Care Act 2001, as it processed through Parliament. That was to abolish the liable relatives rules. The Government considered the amendment to 'have merit'. The tone of the surrounding debate was suspicious of local authority 'fishing trips' but they were more fearful that abolition of the rules would be unhelpful. It might, they feared, impact on 'wider social security issues.' Wider than those affecting payments for care from older people that is. The DWP (as successor to the DSS) might, for instance, seek liable relatives orders for spouses in care homes and in child support in cases involving younger people who are on means-tested benefits. The DWP considered that if it repealed its liable relatives rules it would lose £350 Million per year. (Hansard HL Col 1517 26 April 2001). The debates also made it clear, as does the guidance, that the 'normal standard of living' is an extremely important factor in assessing contribution levels. That applies as much to respite care as to permanent care. That, in particular, appears to be acknowledged rather more in the breach at present.

Spouses have moral obligations of support to each other. They must only legally provide resources to look after one another in any situation if required to do so under Section 42 of the National Assistance Act 1948 (NAA). Enforcement of that legal obligation is under Section 43 NAA. The extent of that obligation is only properly calculable and enforceable by the court, Magistrates at first instance, and not by third parties. It is categorically not something which a spouse in care or otherwise or a local authority can enforce without court intervention. A spouse or local authority might decide to apply to court for clarification on the contribution due. The court can decide the ‘appropriate’ amount. The spouse or local authority might also apply for enforcement of the contribution due. This is not changed by the guidance. The CRAG revision also emphasises that local authorities ‘should consider court action as a last resort.’ (Paragraph 11.006 iv) This was always the position in practice. Our busy Magistrates are likely to become rather perturbed by referrals to the court on anything like a regular basis. Pursuing elderly people as debt collectors for a local authority does not fit very well within their remit to keep the streets clear of criminals.

The LAC (2002)11 guidance amounts to a strongly worded reminder to all parties as to the pre-existing powers of the court on spousal contributions. As the underlying law has not changed the adviser must resist any inference it has. The author suggests that this revision is designed to systematise and legitimise claims made by local authorities against those who know no better and may incidentally be financially and emotionally vulnerable. It is a way of potentially reducing pressure on local authority care budgets by casting an increased burden on spouses. The author also notes it does not extend to unmarried persons and that raises certain issues of old fashioned public policy as well as human rights. The guidance is couched in terms of fairness and uniformity but its effects are likely to be arbitrary in practice. That is however nicely the guidance is worded in terms of ‘discussion and negotiation’ or ‘sensitivity’ and in not seeking to reduce the liable spouse to mere subsistence living. Very generous. Even the ‘nice’ wording in the revised CRAG only states that ‘In seeking liable relatives contributions from carers, councils may wish to exercise discretion and sensitivity.’ Only May wish! (11.004C)

As the, unrevised, CRAG paragraph 4.001 correctly states ‘Under the National Assistance act 1948 the local authority has no power to assess a couple according to their joint resources’. This has not changed. As in the independent taxation system so in separate means-testing under the National Assistance (Assessment of Resources) Regulations 1992 (as amended) which, under the auspices of the NAA, govern the local authority means test. CRAG 4.002 also correctly notes that ‘... the local authority has no powers to use the assessment regulations for assessing how much a liable spouse [under the NAA] should be able to contribute towards the cost of residential accommodation.’ This remains the case. Local authorities are reminded by the LAC (2002)11 guidance that they have no power to obtain the financial details of a spouse of a resident and that only a court can order that under the provisions relating to enforcement of the Section 42 obligation. The author’s advice is, as ever it was, to strike through prying questions about the finances of the spouse, which so often appear in standard questionnaires. Perhaps state: ‘Not required by law’. They should not be mentioned even in conversation or indirectly.

The revised Section 11 of CRAG simply, and correctly, states that the local authority, as a result of Section 42 NAA, ‘may ask’ the liable relative to ‘refund all or part’ of the local authority expenditure on care. (11.001) Asking is not the same as demanding or charging. Why anyone so asked would want to contribute without some method of leverage being used by a local authority, such as disreputable and possibly unlawful limitations on choice of care, is unclear. Most of the author’s middle means, middle income and middle England clients would not want to do so. That is not without some form of emotional blackmail being used against them.

It is particularly unhelpful that the guidance makes reference, in its preamble and in the revised CRAG itself (11.005A), not only to a ‘contribution’ by a spouse but to a ‘charge’ against a liable spouse. There is no power in law to ‘charge’ the spouse for their partner’s long-term care. This is rather a telling slip of the draftsman’s pen. That is unless it is accepted that a contract can come about between the liable spouse and the local authority by way of negotiation. Such agreements are to be avoided. Beware of the wording of standard forms and of oral contracts. But even then paragraph 11.005A appears to concede this cannot occur in cases where details of the spouses finances are not supplied. ‘In the absence of details local authorities should not charge the partner for any of the care unless negotiation has taken place.’ The moral must be to refuse to provide any details. Provision may imply negotiation and in turn a deal being done leading to a ‘charge.’

Not to be dissuaded by an unwilling spouse the guidance in 11.005A also suggests that a contribution might still be ‘negotiated’ without financial information being given. How this is possible is uncertain. Presumably this only applies to cases where a spouse is willing to contribute but is just wishing for some personal financial privacy. In these cases that is surely not really a negotiation as to a legal liability. It is an independent decision to contribute by the potentially liable spouse by way of a voluntary donation. It should not, the author suggests, create a contract of any sort. It might possibly be used as evidence in any Section 43 enforcement should that contribution subsequently stop. The best approach for problem avoidance is probably not to make any contribution. If made the voluntary and unilaterally revocable nature of such a contribution should be noted in correspondence with the local authority.

In short the cautious adviser will normally say to the potentially liable spouse ‘Reveal nothing and pay nothing.’ All clients should be actively advised to seek legal advice at an early stage before any care need is crystallised. Dare the author suggest that hard pressed local authorities might seek to state their charging policies in respect of spousal contributions in practically mandatory terms? ‘Thou shalt pay a minimum of £X in ‘normal’ cases.’ The adviser may be aware that a local authority’s ‘policy’ is frequently a demi-God to it. It seems, increasingly to be viewed as ‘local statute’. It is not. Resist it where necessary. The local authority might also somehow add the expression ‘contribute or else’. Comfortingly the general comments to the guidance, and the revised CRAG itself (11.005A), note that there should not be ‘any suggestion on the part of the council that services to the resident are in jeopardy if a liable relative contribution is not forthcoming.’ That statement is required by way of emphasis of the needs led system which is supposed to exist. Any such suggestion of the requirement of a contribution as a condition precedent to care provision should be reported to the local authority lawyers, the Ombudsman, the Secretary of State and anyone else who might conceivably listen. Such an assertion would be ultra vires. It would be unlawful. It would, if necessary, be struck down by the Courts.

It should, the author submits, be remembered that the spouse left at home has every right to lead a life of their own at their chosen standard of living. They might have cared for their partner for years without pay relieving the State of its ultimate financial safety net responsibility. Forcing them into penury and indeed prejudicing their future care choices is surely unacceptable? The author believes that although this article displays 'defensive' tendencies Magistrates will, if court action is commenced, err on the side of generosity to the spouse left at home. The local authority seeking enforcement under Section 43 might therefore not obtain the order it would wish to have. Spousal responsibilities run both ways.

Revised capital limits from 8 April 2002: LAC (2002)11
Capital limits are set at £11,750 (lower) and £19,000 (higher). An increase of £250 and £500 respectively.

Personal Expenses Allowance (PEA) from 8 April 2002: LAC (2002)11
The PEA is the sacrosanct spending money allowance for those in care. Pressure to spend it on care is described as ‘extremely poor practice.’ In cases where the local authority does not decide to increase it in individual cases under Section 22(4) of the NAA it is £16.80. ‘Pocket money’ indeed.

David Coldrick is a partner in charge of the Sheffield office of private client firm Wrigleys Solicitors. He can be contacted at david.coldrick@wrigleys.co.uk. Queries welcome.