Whether someone has to move into a residential care or nursing home is a very difficult and distressing life event. It's generally the last option to consider when living independently and safely in your own home is no longer possible.
Sometimes this can arise because of severe illness, frailty or dementia where care support in your own home is impractical or unable to meet care or medical needs on a 24/7 basis.
Ultimately, the local authority is under a statutory duty to carry out an appropriate needs assessment to work out the best solution for a person's longer-term residential care requirements under the Social Work (Scotland) Act 1968 as amended. See section 13 of the 1968 Act for residential accommodation with nursing care duties.
In practice, this process can become more challenging when someone owns heritable property that is lived in with other family members or is jointly owned.
The cost of care homes isn't cheap. The average cost for residential care in the UK during 2021 was £704 per week; while a nursing home was typically charged at £888 each week.
In Scotland, free personal care is funded by the state but that excludes the cost of residential accommodation. The free personal care allowance helps reduce the weekly cost of residential care.
The starting point for charging arises from section 22 of the 1948 National Assistance Act. There is a legal obligation on a person to pay for their full costs of care accommodation unless he or she can satisfy the local authority they are unable to do so.
The local council will undertake a financial assessment. In 2021/22, savings over £18,000 and up to £28,750 are permitted but result in a weekly tariff.
So, if you had £20,000 savings this would result in an extra charge of £8 per week. Savings over £28,750 and a person becomes fully self-funding and must meet all of their costs.
A person with no assets and a state pension and pension credit guarantee would pay a weekly contribution of £147.80 per week to the cost of residential care. Their retirement income would be £177.10, but the rules allow £29.30 to be retained as a personal weekly allowance.
Glasgow City Council has a helpful leaflet that explains all of the relevant rules, which also links to Scottish Government guidance, here: https://www.glasgow.gov.uk/CHttpHandler.ashx?id=50691&p=0
The 1992 National Assistance (Assessment of Resources) Regulations set out mandatory circumstances where a council must disregard the value of someone's family home, and where they have discretion to do so, in determining a weekly contribution.
Generally, the value of someone's property is treated as capital or notional capital for the purpose of assessing their contribution to the cost of residential care.
Where a person goes into care but either their partner, family member aged 60 or over, a person who is incapacitated, or a dependent child reside in their property, the 1992 rules require the council to disregard the value of that property. See SSI 2009/381.
The rules don't define "incapacitated" but Scottish Government guidance advise this should include anyone in the family home who's in receipt of (or eligible for) certain disability benefits.
For those not eligible for a property disregard there may be the possibility of a deferred payment agreement. These were introduced in Scotland in 2002 for those in residential care unable or unwilling to sell their home. In effect some care costs are secured by the council taking a mortgage over the property.
Where someone disposes their family home within six months of going into care - for examples gifts the house to a family member - the local authority is empowered to pursue the family member for the value of that transfer. See: section 21 of the Health Services and Social Security Adjudication Act 1983.
The test is whether the transfer of property was to avoid paying charges for care accommodation. The Sheriff Appeal Court recently upheld in Argyll and Bute Council v. Gordon 2017 SLT (Sh.Ct.) 53 that such claims can be defended in the sheriff court. They will turn on the facts.
Local authorities have wide powers under the 1992 rules to treat a transfer of property as being a deprivation of capital to avoid paying for care fees. This means the person going in care is still treated as having the value of their property as "notional capital".
In Yule v. South Lanarkshire Council 2001 SC 203, a person had granted her granddaughter the title to her home for free if she were to die or go into a care home. This is known as "liferent and fee". Scotland's highest civil court held that the local authority was entitled to reach an inference that this was a deprivation of capital to avoid paying care home fees.
The courts have taken different approaches in other cases. In Cunningham v. East Lothian Council  CSOH 185, a similar arrangement to Yule was treated differently as a great grandson had paid the mortgage.
The law can be complicated here, so if in doubt please seek out advice from a solicitor or local law centre.