Assessing your contribution to care costs
If the council agrees that you need care and support, they will look at your financial assets to decide how much you’ll have to pay towards your fees. Assets are items you own that have a financial value. They can include your income, savings, investments and property.
If you spend your money or give away your capital knowing that you need care and support, it may be seen as deliberate deprivation of assets.
What is deprivation of assets?
Deprivation of assets means you’ve deliberately tried to get rid of your assets to avoid charges or reduce the amount you have to contribute to your care costs. There are various ways you might do this, including:
- making a lump-sum payment to someone else, possibly as a gift
- extravagant spending that is out of character
- transferring the title deeds of your property to someone else
- putting your assets into a trust that can’t be revoked
- buying expensive items so they would be disregarded as personal possessions
- selling an asset for less than its true value.
There could be valid reasons for doing any of these things and the council must consider the timing and motivation of your actions. If they decide that you knew you would need care and one of your reasons was to avoid paying towards the costs, this could be deprivation of assets.
How this affects the financial assessment
The financial assessment or means test looks at:
- your income, including your pensions and certain benefits
- your capital, including savings and investments
- the value of any property, sometimes including your home if you own it.
Some assets will not be taken into account in the financial assessment in certain circumstances. For example, the value of your main or only home isn’t included in the assessment if you need care in your own home.
If the council decides that you’ve deliberately deprived yourself of assets to avoid paying care costs, they will then decide whether to treat you as if you still had the asset, include it in your financial assessment and charge you accordingly. This is called notional capital or notional income. If you no longer have the asset, you could find that you’re expected to pay more than you can actually afford.
If you owe the council money
If you can’t pay your contribution to your care costs and you end up owing the council money, they could pursue the money you owe through the county court. This should be a last resort and they should discuss other options with you first. In the case of care home fees, the council must offer you a deferred payment agreement if possible.
If you transfer your assets to someone else, they may be liable for the debt.
If you can’t pay, the council may still have to make arrangements for your care to continue. Read our factsheet First steps in getting help with your care needs for more information.
How the council decides
When the council carries out the financial assessment, they will ask about things you used to own as well as what you currently own. There’s no time limit on how far back the council can look at your financial affairs to see if there has been deprivation of assets.
There are many reasons why you might have given something away. The council must consider each case on its own merits. They will look at:
- why and when you disposed of your assets
- whether you could have foreseen that you would need care and support at the time
- whether you expected that you would have to pay towards your care costs
- whether avoiding care fees was a significant motivation for disposing of your assets.
The rules about deprivation of assets can be quite complicated and may be more strictly applied by some councils than others. If you’re not sure whether something could be seen as deprivation of assets, it’s best to ask the council first, rather than go ahead and then encounter problems later. For example, if you were getting Attendance Allowance when you disposed of an asset, this might be considered as knowing that you had care needs.
If you disagree with the council’s decision
If you disagree with the council’s decisions, you have the right to challenge them. It’s a good idea to get specialist advice if necessary. You may wish to get legal advice before you take any action.
If you want specialist legal advice, you will need to find a solicitor who specialises in community care law. Getting legal advice can be expensive. If you decide to get legal advice, you may want to contact Civil Legal Advice to find out whether you would qualify for legal aid.
Whether or not you qualify for legal aid, the Civil Legal Advice service can give you details of organisations or solicitors specialising in community care law. You could also visit find-legal-advice.justice.gov.uk to find a solicitor.
See our factsheet Can I avoid paying for care by giving away my assets? for more information.