Self-funders and cross-border placements
Many people who use social care services will pay all of their costs. In other words, the authority does not make any financial contribution towards the costs of the person’s care. This is known as being a ‘self-funder’.
A cross-border placement can be made when the authority or the individual is paying, according to their means, some or all of the costs for the accommodation – the essential feature of a Schedule 1 placement is that the provision of accommodation has been ‘arranged’(or in Scotland ‘secured’) by the authority. The mere fact that a person has capital in excess of the relevant threshold for financial support from the authority does not, however, mean that a cross-border placement cannot or should not be made. Where a person is making their own accommodation arrangements (for instance, because they are self-funding) or someone (i.e. not the local authority) is making accommodation arrangements on their behalf, this is not a Schedule 1 placement.
An authority may be approached by a self-funder seeking assistance in organising a cross-border move, or the authority may become aware of the situation of a self-funder who might benefit from some form of assistance in setting up the move. It is important to note that the offer and/or provision of assistance is unlikely, in itself, to constitute the making of arrangements for, or the securing of, the provision of accommodation that would constitute a Schedule 1 placement. The extent of assistance that might be offered before entering into the realms of arranging or securing the provision of accommodation is discussed later in this guidance.
When a self-funder’s needs are to be met by the provision of accommodation in a care home and an authority in England (15) decides whether or not it is obliged to make the necessary arrangements itself, there are certain questions that should be addressed by the authority, including:
- Does the person have capacity to make arrangements for the accommodation?
- Does the person have someone who is in a position to make the necessary arrangements on their behalf? (16)
If the answer to both of these questions is ‘no’, it is likely that any arrangements for the care home, including on a cross-border basis, will need to be made by the authority for the self-funder.
An authority in England also has to consider any other matters that are relevant to the question of whether to exercise its power to meet needs by arranging accommodation in a care home. It also has to consider whether there is a duty to arrange accommodation other than in a care home.
In Scotland, the duty to provide accommodation does not depend on these questions. Rather, it arises simply on identification of need and the person in such need being ordinarily resident or physically present in the authority’s area. In Scotland, moves to another authority area of persons who lack capacity to decide for themselves where to live require to be authorised by someone with the legal authority to make such decisions on their behalf. Such legal authority is obtained through power of attorney, guardianship order or other intervention order granted by the Sheriff Court. In Scotland, it is likely that appropriate authorisation is required whether the move is to be underpinned by a Schedule 1 placement or otherwise.
In Wales, a local authority has a duty to provide accommodation for a self-funder if the adult’s needs meet the eligibility criteria and the adult asks the authority to make the arrangements. A duty to provide accommodation for a self-funder will also arise if the adult’s needs meet the eligibility criteria and they lack capacity to make the necessary arrangements, and there is no person who is authorised or able to make the arrangements on their behalf.
In Northern Ireland, the term self-funder refers to an individual who is assessed as able, or declares themselves to be able, to meet the full cost of their care, but whose care is arranged and managed by a health and social care trust. (17) A person’s ability to fund their own care has no impact on their right to access and, where appropriate, progress through, the ‘care management process’. A client requiring residential or nursing home care can approach their health and social care trust at any point under the care management process. The position in Northern Ireland is similar to Scotland in that the duty to provide accommodation does not depend on the questions listed above. It arises simply on identification of need and the person being resident in the health and social care trust’s area.
Can someone else make arrangements on the person’s behalf?
In England and Wales, an authority does not have a duty to arrange a cross-border placement for a self-funder if the adult lacks capacity to make the arrangements themselves but there is a person authorised to make the arrangements under the Mental Capacity Act or otherwise in a position to do so on the adult’s behalf. In England and Wales, such a person could be a donee of a lasting power of attorney, or a deputy appointed by the Court of Protection under the Mental Capacity Act 2005.
If there is no authorised person, the authority should consider whether there is anyone else in a position to act on the adult’s behalf. This will usually involve consideration of whether there is someone both willing and able to make suitable arrangements. It should never be assumed that just because a person is a family member or a carer, they can automatically be expected to undertake this role. Consideration should not just be given to the physical ability of a person to take on this task. The person is not under a legal obligation to take on this role and should not be pressured into doing so.
In order to identify whether there is someone who is in a position to make the necessary accommodation arrangements for a person, a wide range of views should be sought wherever possible and appropriate. This would include the views of the person with social care needs. Even if, for example, the person lacks capacity to make the necessary arrangements they still may be able to express an opinion about who should take on this role and may retain decision-making capacity in this respect. Other people who might need to be consulted would include family members, carers, friends and professionals who are involved in the case.
Case study: Paul, aged 44
Paul, aged 44, has learning disabilities and needs 24-hour supervision. He lived with his mother in England but after she died he was moved to a local care home on a temporary basis. The relevant English local authority arranged this accommodation.
His brother lives in Wales and wanted Paul to move there so that he could look after him. Paul had support from an advocate and agreed to this option, and a care home was identified. The local authority arranged Paul’s accommodation in the care home under the Care Act 2014. He settled in quickly, and now has regular contact with his brother.
Paul also inherited £40,000 from his mother’s will and was assessed as lacking capacity to manage his finances. However, he maintained capacity to decide where to live. There was no lasting power of attorney or deputy appointed. The placing English authority (which now maintains responsibility for his care by virtue of Schedule 1) concluded that Paul had the funds to pay for his care and someone available to pay the fees on his behalf. The authority discussed future accommodation arrangements with Paul and his brother, and the possibility of the brother taking over responsibility for the management and funding of Paul’s accommodation going forward. After agreeing this and handover arrangements with them, the authority decided to terminate its contract with the care provider.
Paul now pays his care home fees in full out of his inheritance. If, in the future, his resources fall below the relevant financial threshold he may become eligible for support from the new authority in Wales. This might include responsibility for funding and arranging Paul’s care.
There may be internal family disputes over the management of the person’s finances and property. This may mean that there are strong disagreements over who should make the necessary arrangements. This may in turn affect an authority’s view of whether a family member is able and willing to make the necessary arrangements on behalf of the person. In such cases the authority may wish to consider carefully whether it should arrange the cross-border placement, or whether there is an independent person (such as a close friend or legal representative) who might be in a position to make the arrangements on the person’s behalf. In a small number of cases an application to the relevant court might be necessary to authorise this.
There may be several factors to take into account in establishing whether there is someone who is in a position to make the necessary arrangements. The precise factors, and the weight accorded to any individual factor, will vary according to the individual circumstances of the particular case.
Once a person has been identified as potentially suitable to undertake this role, it is vital that a practitioner meets with them and explains what taking on this role would mean. This should include a clear explanation of the formal legal responsibilities and the support that could be provided to assist them with making the arrangements (this distinction is discussed below). It should also be explained that they are not obliged legally to take on this role.
Where the adult lacks such capacity, the practitioner will need to check that the person making arrangements understands the legal requirements governing mental incapacity. If appropriate, the person should be given information on how to access appropriate legal advice. The need to be aware of different legal requirements is illustrated in the case example below.
Case study: Grace, aged 80
Grace is 80 years old and suffers from dementia. She lived in England in her own home. She was admitted to hospital following a fall from which she sustained a broken hip. Her mental health also deteriorated. A multidisciplinary assessment concluded that her needs would be best met in a nursing home. A mental capacity assessment determined that Grace lacks capacity to decide for herself where to live.
A financial assessment determined that Grace is not eligible for local authority funding of, or towards, the cost of her care home accommodation. Therefore, she would be a self-funder. Grace’s son Phillip – who lives in Wales – wanted her to be accommodated in a care home local to him. Following a carer’s assessment, the authority in England concluded that Phillip was willing and able to make suitable arrangements. With advice from the local authority in England, Phillip took steps himself to search for and identify a suitable home. Eventually he found a suitable private care home in Wales.
In England and Wales, Phillip’s actions were being taken in Grace’s ‘best interests’ in accordance with the Mental Capacity Act 2005. This does not constitute a Schedule 1 placement because Phillip (i.e. not the local authority) made the accommodation arrangements on Grace’s behalf.