This chapter was added to the APPP in March 2020.

1. Introduction

People who have sufficient assets to pay the full cost of their care and support are known as ‘self-funders.’ Self-funders can either be people who do not wish to have an assessment but want to choose and pay for their own care and support privately or they can be people who have been assessed by a local authority and whose financial assessment shows they have sufficient assets to pay a contribution which covers the full cost of their care.

The needs assessment is the crucial difference as most, if not all legal duties flow from that. The duty owed by the local authority to self-funders can be complicated, so this policy addresses each foreseeable situation separately.

2. Brief Summary of Law and Statutory Guidance

This section has no associated Explanatory Notes.

If someone is a self-funder, who has not been assessed by Hull City Council as having eligible needs but has decided they want to receive support and has the means to pay for it, the City Council does not owe them a statutory duty to meet their needs by arranging support. Once the City Council assesses someone – and it has to offer an assessment to anyone with an appearance of need – it must arrange the support it assesses them as needing subject to the conditions set out in Section 18 of the Care Act (see 6.2 below). if it finds their needs can only be met in residential care, and either:

  • their financial resources are below the upper financial limit; or
  • their resources are above the financial limit but they lack the capacity to arrange their own residential placement, the City Council must arrange it, and recover the full cost in charges.

If the person’s resources are above the upper financial limit and they have the capacity to arrange their own placement the City Council is not required to arrange support but may choose to if, for example the person’s ability to arrange their placement is dependent upon entering into a deferred payment agreement with the City Council (see 6.5 below).

If it finds the person’s needs can be met by the provision of community based support but they want residential care anyway, the City Council is not under a duty to arrange it.

If the person needs community based support and either:

  • their resources are below the upper financial limit; or
  • they are above the limit and the person either lacks the capacity to arrange their own care and support or simply asks the City Council to arrange it for them, the City Council must do so, recover the full cost in charges and may charge an arrangement fee.

3. How to Work with Self-Funders

3.1 Assessment

See also Assessing Mental Capacity Guidance chapter and Establishing Ordinary Residence chapter

If someone is present in Hull with an appearance of need, Hull City Council must offer an assessment of need. One of the following things must then happen:

  1. if the person makes a capacitated choice to agree to the assessment and is ordinarily resident in Hull, is of no settled residence or their ordinary residence cannot be established, Hull City Council must carry out that assessment;
  2. if the person is ordinarily resident elsewhere, Hull City Council will contact their home authority and ask that either:
    • the home authority carries out a needs assessment; or
    • the home authority agrees to pay the relevant fee for Hull City Council to carry out the assessment on their behalf. The completed assessment must be sent to the home authority as they retain responsibility for meeting the person’s needs;
  3. If the person refuses a needs assessment and has the mental capacity to do so, Hull City Council will provide advice and information about what to do if they change their mind, how to stay as independent as possible and how to arrange their own support if they still wish to receive it. That is the extent of the duty owed and no further action is required. Hull City Council only has a further duty when it has established, through assessment, that the person has eligible needs;
  4. If there are grounds to believe the person lacks the capacity to consent to or refuse a needs assessment, their capacity must be formally assessed and if they do lack capacity, a decision must be made about whether it is in their best interest to receive a needs assessment by following the guidance on best interest decision making set out in the Mental Capacity Act and its Code of Practice.

3.2 Financial assessment

If the person consents to a needs assessment or if it is shown to be in their best interest to receive one, it should be carried out. A financial assessment should also be carried out. The starting point in the funding of adult social care is that people should contribute as much as they can afford to the cost of their care up to and including meeting the full cost. The point of the financial assessment is not to discover how much the person can pay, but rather to discover whether they are entitled to any financial assistance from the local authority. If the person refuses a financial assessment, their eligibility for financial assistance cannot be established and so they must pay the full cost of their care. If they initially refuse a financial assessment but later change their mind, any financial assistance can only be provided from the date the assessment was carried out. Financial assistance can only be backdated where there was a delay in completing the financial assessment which was entirely the fault of the local authority. If the assessments show that the person does have eligible needs and they have financial resources above the upper capital limit, they will need to pay the full cost of their care and must be informed of this. They should then be provided with advice and information about how their needs may be met. A support plan should then be written in partnership with the person. After this, the next steps vary according to the person’s needs and circumstances. These are set out in detail below.

4. Meeting Need

4.1 The person’s needs are to be met via community based support

If the person’s needs can be met by the provision of community based support and they ask Hull City Council to arrange it on their behalf, the City Council must explain that there will be an arrangement fee for doing so, but must arrange the support if the person still wishes it to do so. The person has every right to choose their own provider, but should be provided with advice and information relating to top up fees. In particular, they should be made aware of the fact that if their financial resources fall below the upper capital limit, and they thus become eligible for financial assistance, that assistance will only be provided up to the usual cost of care. Any costs over and above that would need to be met by a third party, usually a family member in the form of a top up fee. If there is no one willing and able to pay the top up fee, the person will need to change to a provider who can deliver the support they need within the usual cost of care. Please see section 4.1 of the Hull City Council charging policy for more information on agreeing top-up fees.

4.2 The person’s needs can be met via community based support but they choose to enter specified accommodation

Specified accommodation is accommodation specified in regulations and includes residential care, nursing care, extra care, shared lives and supported living, although it does not include independent living with support, which is regarded as community based support. If the person’s needs can be met through community based support but they make a capacitated choice to enter specified accommodation, they should be provided with advice and information to enable them to make their own arrangements. They should also be provided with advice and information relating to top up fees. In particular, the person should be made aware of the fact that if their financial resources later fall below the upper capital limit, and they thus become eligible for financial assistance, that assistance will only be provided up to the usual cost of care. Any costs over and above that would need to be met by a third party, usually a family member in the form of a top up fee. Please see section 4.1 of the Hull City Council charging policy for more information on agreeing top-up fees. The person should also be informed that Hull City Council will not arrange a residential placement on their behalf unless, despite having the capacity to make the decision, they lack the capacity to make the necessary arrangements and they have no one to do it for them. If this appears to be the case, a further assessment of their capacity should be carried out to clearly establish and  evidence the extent of their capacity in this regard.

A family member cannot make the decision that their relative should enter specified accommodation unless they hold a relevant power of attorney or deputyship which allows for this decision, and the decision can be shown to be in the person’s best interest. If a decision of this type is being considered and either:

i) The person has no one to support them, other than paid staff or

ii) There is disagreement about whether it is in the person’s best interest to enter specified accommodation, an IMCA should be appointed to support the person and an application to the Court of Protection may be required.

4.3 The person’s needs can only be met in specified accommodation

If the assessments show the person has resources above the upper capital limit and has needs which can only be met by the provision of specified accommodation they should be provided with advice and information to enable them to make their own arrangements. If they lack capacity to make their own arrangements, but have someone suitable and willing to do so on their behalf, that person should be provided with the relevant advice and information. If the person lacks the capacity to consent to entering specified accommodation, a decision should be taken under the best interest decision making framework. If the person has no one to support them other than paid staff or if there is disagreement about whether or not it is in their best interest to enter specified accommodation, an IMCA should be appointed to support the person and an application to the Court of Protection may be required. Even if asked, Hull City will not arrange the person’s support. It will only arrange the provision of specified accommodation for people who do not have resources above the upper capital limit, or those who lack the capacity to make their own arrangements and have no one suitable and willing to do so on their behalf.

If the person has financial resources above the upper capital limit, but most or all of these resources are tied up in their house, they may be entitled to a deferred payment. Please see section 10 of the Hull City Council charging policy for further information on deferred payments. If the person’s  ability to make their own arrangements is delayed while a deferred payment is being considered, they should be provided with advice and information about how their needs may be met in the interim.

4.4 Someone moves to Hull, and arranges their own admission to specified accommodation

If someone moves to Hull and arranges their own placement, they acquire ordinary residence in Hull and Hull City Council owes the same duties under the Care Act to them as to any other Hull resident. If the person’s assets fall below the upper capital threshold, Hull City Council will be responsible for funding their placement, carrying out a financial assessment and recovering the person’s assessed contribution. If their needs change so that they require additional or different support, Hull City Council is responsible for meeting their needs.

4.5 Someone is assessed by another local authority and chooses specified accommodation in Hull which is arranged by that local authority.

If someone has been assessed by a local authority as having needs which can only be met in specified accommodation and is placed by them, the person remains ordinarily resident in that local authority for as long as they need specified  accommodation. If they move from one form of specified accommodation into another, they are still living in specified accommodation and so their ordinary residence does not change. The local authority which originally placed them retains responsibility for arranging and funding their care and support. Even if the person has made a capacitated choice to move to Hull, if their placement is arranged by another local authority, they remain ordinarily resident in that authority and any duties owed under the Care Act are owed by that authority. It is the responsibility of the local authority in whose area the person is ordinarily resident to carry out a financial assessment, collect any contribution and pay the care home fees. If requested to do so, Hull City council will carry out assessments and reviews on behalf of the responsible authority but will make it clear that they are acting as an agent of the other local authority and will  levy a charge for the service in accordance with the schedule set out in the annual fees and charges report. Hull City Council has only a very limited duty toward people placed by other local authorities in care homes in Hull. It has a duty to consider an application for a deprivation of liberty and to authorise it if necessary and it has a duty to investigate any allegation of abuse or neglect.

If an application for deprivation of liberty is received, Hull City Council will charge the placing local authority for the service. If the person wishes to move to another care home, or needs additional support, it is the responsibility of the placing authority to make the necessary arrangements. The placing authority may ask Hull to carry out certain tasks on its behalf but these would be subject to a fee and would be carried out by HCC staff acting as an agent of the placing authority.

5. Payment Arrangements for Self-Funders

The Care and Support Statutory Guidancepara 8.33 states:

8.33 Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top-up’ fee is being paid. However, where all parties are agreed it may choose to allow the person to pay the provider directly for the ‘top-up’ where this is permitted.

Annex A para 28 provides further clarification: When entering into a contract to provide care in a setting that is more expensive than the amount identified in the personal budget, the local authority is responsible for the total cost of that placement. This means that if there is a break down in the arrangement of a ‘top-up’, for instance if the person making the ‘top-up’ ceases to make the agreed payments, then the local authority would be liable for the fees until it has either recovered the additional costs it incurs or made alternative arrangements to meet the cared for person’s needs.

Therefore, if the City Council has arranged the placement, it should pay the provider directly for the full fee. This will enable timely action to be taken in the event of non payment of the top up or the assessed contribution

People who are arranging and are funding their own residential home placement should make, or be helped to make arrangements to pay the provider directly.

If the person fails to make the payments for a placement they have arranged themselves, the city council may still be liable to pay the provider the full cost under its duty to meet urgent need but the provider may be able to seek legal redress for any fees generated before the person was assessed by the local authority as being in urgent need.

Law and Statutory Guidance

6.1 Duty to assess

Everyone who has an appearance of need must be offered an assessment, but people have the right to refuse. The Care and Support Statutory Guidance section 6 para 13 is very clear that ‘Local authorities must undertake an assessment for any adult with an appearance of need for care and support, regardless of whether or not the local authority thinks the individual has eligible needs or of their financial situation. However, section 6 para 20 states that ‘An adult with possible care and support needs or a carer may choose to refuse to have an assessment. The person may choose not to have an assessment because they do not feel that they need care or they may not want local authority support. In such circumstances local authorities are not required to carry out an assessment. However, where the local authority identifies that an adult lacks mental capacity and that carrying out a needs assessment would be in the adult’s best interests, the local authority is required to do so.

6.2 Duty to meet need

Section 18 of the Care Act sets out the local authority’s duty to meet needs for care and support as follows:

18 Duty to meet needs for care and support

This section has no associated Explanatory Notes

(1)A local authority, having made a determination under section 13(1) (assessment and eligibility), must meet the adult’s needs for care and support which meet the eligibility criteria if—

(a)the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence,

(b)the adult’s accrued costs do not exceed the cap on care costs, and

(c)there is no charge under section 14 for meeting the needs or, in so far as there is, condition 1, 2 or 3 is met.

(2)Condition 1 is met if the local authority is satisfied on the basis of the financial assessment it carried out that the adult’s financial resources are at or below the financial limit.

(3)Condition 2 is met if—

(a)the local authority is satisfied on the basis of the financial assessment it carried out that the adult’s financial resources are above the financial limit, but

(b)the adult nonetheless asks the authority to meet the adult’s needs.

(4)Condition 3 is met if—

(a)the adult lacks capacity to arrange for the provision of care and support, but

(b)there is no person authorised to do so under the Mental Capacity Act 2005 or otherwise in a position to do so on the adult’s behalfThis section has no associated Explanatory Notes

A crucial part of this section is the clarification that the duty applies to needs which meet the eligibility criteria. The Care and Support Statutory Guidance section 6 para 12 states that:

6.12 Eligibility determinations must be made on the basis of an assessment, and cannot be made without having first carried out an assessment. Once an eligibility determination has been made, and the local authority has determined whether it will meet the person’s needs (whether eligible or not), it must then carry out a financial assessment if it wishes to charge the adult and confirm that the adult is ordinarily resident in the authority. The eligibility determination cannot take place until an assessment has been completed, except in cases where the local authority is meeting urgent needs. The financial assessment may in practice run parallel to the needs assessment, but it must never influence an assessment of needs. Local authorities must inform individuals that a financial assessment will determine whether or not they pay towards their care and support, but this must have no bearing on the assessment process itself.

So, the local authority has a duty to meet eligible need but cannot determine eligibility without carrying out an assessment. It follows then, that the local authority does not have a duty to meet needs (other than urgent needs) of people it has not assessed as eligible. It can provide advice and information under its general duty but is not required to meet the needs of those it has not assessed.

6.3 Duty to arrange support

Condition 2 of section 18 of the Care Act states that the local authority only has a duty to meet the care and support needs of someone with resources above the upper capital limit, (who would therefore be financially assessed as being able to contribute the full cost of their care) if the person asks them to or lacks the capacity to arrange their own support. Section 8 para 13 of The Care and Support Statutory Guidance qualifies this duty  as follows:  ‘A person with more in capital than the upper capital limit can ask their local authority to arrange their care and support for them. Where the person’s needs are to be met by care in a care home, the local authority may choose to meet those needs and arrange the care, but is not required to do so. In other cases, the authority must meet the eligible needs if requested. However, these people are not entitled to receive any financial assistance from their local authority and in any case, may pay the full cost of their care and support until their capital falls below the upper capital limit.’

6.4 Limits on the local authority duty to support

Section 10 paras 21 and 27 of the Care and Support Statutory Guidance place some further limitations on the care and support a local authority has a duty to provide:

10.21 Local authorities should also have regard to how needs may be met beyond the provision, or arrangement, of services by the authority. A person may already be in receipt of care and support which meets their needs (whether self-funded and arranged or not). For example, needs may be met by a carer, in an educational establishment or by another institution other than the local authority. In these circumstances the local authority remains under a duty to meet the person’s eligible needs. If however, the alternative means of meeting the needs is in place and the authority is satisfied that this alternative means is, in fact, meeting the person’s eligible needs, then the authority may not actually have to arrange or provide any services to comply with that duty.

10.27 In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.

These provisions apply to everyone with eligible needs, but may be particularly relevant to people whose resources are currently above the upper capital limit but who are nonetheless unlikely to be able the full cost of their care for the remainder of their lives. The person’s choices should not be unfairly restricted but should be balanced with those of the wider population.

6.5 Right to a deferred payment

A difficulty is created where someone does have resources above the upper capital limit but most or all of those resources are tied up in their house. This may mean they have the resources to pay the full cost of their care but lack the fluid resources necessary to pay care home fees on a weekly basis. Section 9 para 7 of the Care and Support Statutory Guidance addresses this:

9.7 Deferred payment agreements are designed to prevent people from being forced to sell their home in their lifetime to meet the cost of their care. Local authorities must offer them to people who meet the criteria below and who are able to provide adequate security (see section entitled ‘Obtaining Security’ below). Subject to these criteria they must offer them to people who have their needs met by the local authority, and also people who meet their own needs. The regulations provide that someone must be offered a deferred payment agreement if they meet all of the following criteria at the point of applying for a deferred payment agreement. Broadly, they are that the:

a) person is ordinarily resident in the local authority area or present in the area but of no settled residence; or ordinarily resident in another local authority area but the local authority has determined that they will or would meet the individual’s care needs under section 19 of the Care Act if asked to do so [see note 2]

b) person has needs which are to be met by the provision of care in a care home. This is determined when someone is assessed as having care and support needs [see note 3] which the local authority considers should be met through a care home placement

c) person has less than (or equal to) £23,250 in assets excluding the value of their main or only home (for example, in savings, other non-housing assets and housing assets other than their main or only home)

d) person’s home is not disregarded [see note 4]; for example, it is not occupied by a spouse or dependent relative as defined in regulations on charging for care and support (for example, someone whose home is taken into account in the local authority financial assessment and so might need to be sold)

Note 3

When someone is arranging their own care and support and the authority has not performed an assessment, this condition is satisfied when someone would be assessed as having eligible needs were the authority to have carried out such an assessment.

9.13 In all cases, a local authority is only required to enter into a deferred payment agreement to cover the costs of care and support which it considers necessary.

6.6 Arrangement fees

Section 8 Paras 58 and 59 of the Care and Support Statutory Guidance allow for the levying of an arrangement fee in addition to the charges for care and support as follows: 8.58 Where the person’s resources are above the financial limit, the person’s entitlement to local authority support in meeting their needs may be dependent on the request having been made. Therefore it is important that the person, and any carer, advocate or other person they wish to involve, are aware of this ability and the consequences for their care and support. The local authority must make clear to the person that they may be liable to pay an arrangement fee in addition to the costs of meeting their needs to cover the costs of putting in place the care and support required.

8.59 Arrangement fees charged by local authorities must cover only the costs that the local authorities actually incur in arranging care. Arrangement fees should take account of the cost of negotiating and/or managing the contract with a provider and cover any administration costs incurred. Where a local authority chooses to meet the needs of a person with resources above the financial limit who requires a care home placement, it must not charge an arrangement fee. This is because it would support that person under its power (rather than its duty) to meet needs, and the ability to charge the arrangement fee applies only to circumstances when the authority is required to meet needs.

6.7 Payment arrangements

Section 5.2 above sets out the circumstances in which the local authority has a duty to meet someone’s eligible needs. In respect of self – funders this is where the local authority has assessed the person as having eligible needs and either:

a) these needs are to be met by the provision of community based support which the person asks Hull City Council to arrange on their behalf and agrees to pay an arrangement fee or

b) the needs are to be met by the provision of specified accommodation but the person lacks the mental capacity to make their own arrangements and has no one suitable and willing to do so on their behalf.

If Hull City Council is not meeting the person’s needs, it is under no duty to make payments to providers. The person should be provided with advice and information to make their own payment arrangements.

When Hull City Council is meeting the person’s needs by arranging support, the Care and Support Statutory Guidance  para 8.33 states:

8.33 Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top-up’ fee is being paid. However, where all parties are agreed it may choose to allow the person to pay the provider directly for the ‘top-up’ where this is permitted.

Annex A para 28 provides further clarification: When entering into a contract to provide care in a setting that is more expensive than the amount identified in the personal budget, the local authority is responsible for the total cost of that placement. This means that if there is a break down in the arrangement of a ‘top-up’, for instance if the person making the ‘top-up’ ceases to make the agreed payments, then the local authority would be liable for the fees until it has either recovered the additional costs it incurs or made alternative arrangements to meet the cared for person’s needs.