A grotesque injustice

Lipsey4x3.jpgDavid Lipsey on another elderly care scandal waiting to happen

2016. The new partnership on paying for long term care, based on the all-party consensus on the Dilnot report, comes into effect. The government’s failed attempt in 2013 to castrate its own deferred payment scheme by making those with more than £23,250 in assets ineligible was defeated. Now, no one now will have to lose their home or their fortune because they are unlucky enough to live a long time in a care home – surely a cause for national rejoicing?

Well it should be – except that, instead, the newspapers are full of a different care story. A 90-year-old lady – let us call her Doris – had filled in the forms to apply for the new deferred payment scheme, whereby the council lends her the money to pay for her care secured against the value of her home. Now Doris is pretty sharp for her age but alas she has made a mistake. She didn’t realise that she is only entitled to enter the scheme if she has less than £23,250 in other assets besides her home – actually she doesn’t know what assets mean and left that section of the form blank. And suddenly the local authority is demanding that she pay up the money it gave her in error.

“But I didn’t understand”, says Doris. 

“That’s no excuse” says the council. “Hadn’t you read Clause 67 (4) of the Care Bill. Here it is, in black and white “where a person represents or fails to disclose (whether fraudulently or otherwise) to a local authority any material fact … the following sums are due to the authority from the person … You owe us.”

What happens next? They go to court? Seize her savings? Occupy her home? Who knows? But the scandal over Doris and her council goes viral. Lawyers opine that the original bill breaches article 6 of the European Convention of Human Rights, since it places the onus on the person to show why money should not be recovered by the local authority rather than on the local authority to show it should be.

Of course, the authorities go into a tizzy. The council says that is what the government told us to do. The government points to some obscure guidance where it told the council not to do it. No-one knows who is to blame. But they do soon know the result, as Doris, stressed out by the incident, becomes seriously ill and sadly passes away.

This may seem like a fairy story of a peculiarly dark kind. But if it is fantasy, why is the government putting through the bill in this vicious form? Why has Earl Howe, the minister, usually the most reasonable of men, rejected my amendment which would mean that the debt would only be collected if the old person had fraudulently or negligently misrepresented the position when they should have known better? 

I don’t know the answer. I know only that there is a potential here for grotesque injustice to older people. And I know too that the result will be that many older people will be put off applying for benefits to which after a lifetime of hard work they are entitled. For shame!

Lord David Lipsey is a former member of the Royal Commission on long-term care of the elderly and a backbench Labour Peer

Published 15th October 2013

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