Law Drafting Brief
Long-term care funding law
This document is based on the White Paper (R.131) in respect of long-term care funding. The Minister wishes to lodge primary legislation in the first half of 2011. This paper includes additional detail which will be formalised in subordinate regulations and orders. The detail provided in this paper represents the current state of development of these detailed policies. It is subject to review and further consideration. The details of the regulations and orders will be finalised in 2012 and will be subject to further scrutiny and States debate.
All figures contained within the document are for illustration purposes only and will be finalised in due course.
Comments/details likely to be in set out in Regulations or Orders are in italic
1. The long-term care fund
A new long-term care fund to be set up
Paid into the Fund will be:
Contributions as set out under the law from:
- Soc Sec contributions, at a level determined by Regulation
- sums provided by the States, as set out in Regulations
- investment income from the fund.
Comments
Note: points 1-6 inclusive relate to the Social Security Law
1. Contribution arrangements will be in the Social Security Law (1974)
2. Changes will have to be made to the Soc Sec Law to create a new class of contributor – as well as the usual classes 1 and 2, individuals above pension age will be liable for a contribution based on their income as assessed for income tax purposes in the most recent tax assessment – based on their individual liability
3. Individuals in receipt of the long-term care benefit will not be expected to contribute to the fund
4. Employers will not contribute (but the self-employed will contribute as primary class 1)
5. Contributions will go into the Soc Sec Fund and then, to be set out in the Soc Sec Law, an appropriate long-term care fund allocation will be paid into the long-term care fund (akin to the existing health insurance fund)
6. The contribution rate in all cases will be fixed initially at 1.5%
7. The sum to be contributed into the fund by the States will be based on the current States expenditure of approximately £30 million a year on long-term care paid to HSS and Social Security. This figure will be subject to annual uprating – by reference to an index to be confirmed
8. This sum from the States includes covering the annual cost of financial assistance with the co-payment.
9. The exact timing of the States payments into the fund has yet to be agreed
Paid out of the Fund will be:
- all sums in respect of the long-term care benefit under the provisions of this Law, including the benefit itself (LTCB) and the co-payment (in full or in part) (CPB),
- the cost of equipment as covered by the equipment benefit (EB)
- all expenses incurred by the Department in carrying this Law into effect, possibly including the cost of appointing “trustees” for those without mental capacity
- other related expenditure as agreed.
Comments
1 The long-term care benefit will be the principal expense met from the Fund
2 Other payments out of the Fund will include financial assistance with the co-payment for those who need it
3 Other related expenditure from the Fund includes the cost of buying special equipment necessary for care at home, which will then be re-used by others as necessary; a management fee could be agreed with a specialist supplier already in the market to cover the holding, supply and maintenance of such equipment; this provision includes reusable equipment only, not permanent adaptations to property
4 The fund will bear the cost of administrative work linked to the fund including carrying out all medical assessments using the placement tool; this includes the associated staff costs; costs associated with appointing and operating “trustees” for those without capacity (where assets are too low to justify the cost of a full curatorship)
5. There will also be one-off activities, such as the assessment of those already in care on the date of the scheme coming into operation
2 Categories and rates of benefit
Categories of benefit
Benefit under this law will mean:
- long-term care benefit (LTCB)
- funding for essential equipment integral to the provision of approved care packages at home (EB)
- financial assistance with the co-payment and personal allowance (CPB).
Rates of benefit
- the States shall by Regulation set the types and rates of benefit payable under this Law
- when specifying the rate of care benefit, the States shall specify the amount of any contribution which a claimant for care benefit shall be obliged to pay towards or for the cost of his care (a ‘co-payment’) as a condition of the right to care benefit
- means-tested financial assistance will be available for those unable to meet the co-payment
Comments
1 There will be a number of levels of long-term care benefit, based on the level of care required, with the benefit paid up to a maximum amount at each level. The levels could be, for example: residential; higher residential; EMI; nursing A; nursing B; and nursing C ; for each level there will be a maximum rate that will be reviewed annually by reference to a number of factors including economic indicators, the costs of care and affordability
2. To receive the long-term care benefit in a care home, the person will have to make the co-payment; this will be at a standard weekly rate, reviewed annually (along the lines of the review set out in 1 above), that will be the same amount regardless of the type of care required [so whether in receipt of residential care or the highest level of nursing care, the co-payment will be the same]
3. For those unable to meet the co-payment in full, means-tested assistance will be available to pay the full amount or to meet any shortfall (see section 4); anyone contributing all their income as part of the co-payment would still receive a weekly personal allowance to ensure they have some money to use as they wish.
3a. A condition of receiving assistance with the co-payment will be that the individual (and their partner) completes a written financial assessment using the appropriate forms, giving details of their income and capital; this includes the provision of bank statements and other documentation as required by the department; any change of circumstances on the part of the individual and partner must be reported to the Social Security department at once.
4 A homeowner [define] with capital (excluding the value of the main residence) and savings of more than £25,000 (for a couple this figure is based on half of their total capital and savings, so if the couple together had total savings of £100,000 then one partner would be assumed to have capital/savings of £50,000) will not be eligible for assistance with the co-payment; once the savings level matches this figure and provided the main residence is not worth more than £750,000 ( same limit for single or couple) then assistance with the co-payment can be accessed; if the property is left empty when the individual moves into a care home then, after three months, a rental income will be assumed and these proceeds used to cover the co-payment; a failure to make the co-payment under such circumstances makes the person ineligible for the long-term care benefit. If the main residence is worth more than £750,000 then they remain ineligible for long-term assistance with the co-payment. However, they can apply for assistance for up to three months to allow time for arrangements to be made for the property to be sold or a commercial loan put in place.
4a A determining officer will have the power to take account of the value of a property where there is evidence that a main residence has been deliberately divested in advance of a move into care to circumvent the means testing provisions.
5 For anyone who does not own [define] their main residence, assistance can only be provided if their capital and savings are under £100,000 ( same value for single and couple – to be confirmed) (see para 4 for treatment of couples). They would be expected to use up any sum above this amount before qualifying for assistance.
6 Individuals paying their own co-payment will be free to agree a top-up payment with the care home to fund higher quality accommodation beyond that paid for by the long-term care benefit; this will be a contractual arrangement between the individual and the home and must not affect the individual’s ability to meet their co-payment; if an individual fails to pay the top up and the home has no beds at the benefit rate, then the Department is under no obligation to continue to provide an LTCB in respect of a place at the same care home. The individual will be required to make arrangements to identify a placement at the standard rate, either in the same home or a different home.
7 Individuals whose care needs are assessed as being at such a high level that they require a tailored high value care package beyond the highest care level available under the long-term care benefit will have such additional assessed care costs met from outside the long-term care fund. [They will receive the highest appropriate level of long-term care benefit and be liable for a co-payment] The additional cost will be assessed and met by HSS, which will hold a separate (tax-funded) budget for this purpose.
8 For individuals receiving care at home, the cost of the care package would be up to the net level of the care benefit that they would receive if they were in a care home; no co-payment is required from someone receiving an approved care package at home (they will still be paying their own utility and food bills etc); whether such individuals would be able to ‘top up’ their payments to pay for additional care they wanted is still to be decided; a person moving into a care home after receiving care at home will then have a liability for a co-payment. The financial assessment as to whether the net cost is less than the cost of a placement in a care home will take account of the value of Income Support available to the person remaining in their own home.
9 Individuals receiving a tailored special care package at home will be in receipt of the long-term care benefit up to the highest appropriate level of benefit,, but the additional cost of their approved care package would be met from outside the fund (see 7 above)
3. Entitlement to long-term care benefit
Persons entitled to the long-term care benefit
A person is entitled to the long-term care benefit if he or she:
- is an adult
- is deemed to be in need of long-term care (see section 5) following a care needs assessment
- has secured a place at an appropriate and approved care home on the Island or
- has an approved care package in place to be delivered at home in Jersey
- meets the residential requirements
- makes the co-payment as required
- has no outstanding contributions liability, under the Social Security Law
Comments
The residence requirements mean:
1 Ordinarily resident in Jersey for a continuous period of ten years as an adult and who has been ordinarily resident in Jersey for a continuous period of not less than 12 months immediately before the date of application for the benefit
2 Young adults who are under the age of 28 and who have 18 years’ continuous residence at any age, including the 12 months up to their claim. This is intended to cover a young adult who had lived in Jersey for some considerable time and who was born with or acquired a disability in childhood. This provision would also cover a young person who had lived here for a long period as a child and then had a serious accident at, say, age 20, which meant they then needed long-term care.
3 The Minister for Social Security can in exceptional circumstances exercise discretion over application of these residency rules ( to be confirmed)
4 An approved care establishment is defined in section 6
5 For domiciliary care, an approved care provider is defined in section 6
6 An approved care package is one that has been determined by an appropriately qualified person as appropriate for the care needs of the person and subject to any financial limits
7 ‘Adult’ is someone aged 18 and over (tbc)
4 Eligibility for means-tested assistance
For the purposes of the Law, the income and assets of an individual and their partner applying for means-tested assistance with the co-payment shall be calculated in accordance with schedule xx as set down in an Order
Comments
(Please see Income Support Order, p.20 for an indication of type of information stated which includes the capital to be disregarded, the treatment of capital and income and the calculation of income)
To be confirmed – the treatment of the income and assets of couples – one way may be to aggregate them and then assume a 50% split. (This approach ensures a non-working partner would not be left without income if the individual going into care was the main wage earner.) This requires more detail.
“living together” guidelines (currently outside legislation) to be reviewed to take into account situation where one(or both) partners are receiving care in a care home.
5. Assessment of needs
Person in need of long-term care
For the purposes of this Law, a person must be assessed as requiring long-term care for a minimum period as set out in the Regulations
Comments
- long-term care means long-term permanent help with the activities of daily living (personal hygiene, dressing, eating, drinking, toileting etc); at higher levels of need it could include psychological support and nursing care
- assessment of an individual’s care needs is undertaken by a trained and qualified medical or social work professional who does so according to set criteria set out in a ‘placement tool’
- a review of an individual’s care needs can be undertaken by qualified departmental staff at any time
- minimum period means that the person is likely to require at least this level of care for the rest of their lives, and, in any event, for no less than a period of 12 continuous weeks (tbc)
1.Assessment of the care needs of each individual will be undertaken by appropriately qualified and trained staff (define) who will act as the determining officer; the care needs assessment will, by means of a points-based system, determine whether an individual’s needs are of a sufficiently high level to qualify for the long-term care benefit
2. (The two placement tools – one for under 65s and one for the over 65s - will be published in the Orders)
3.If an individual’s care needs change, this must be confirmed through the completion of a new placement tool before they can qualify for a higher standard of benefit; this also applies should their condition improve and their care requirements decrease; this applies for care in a home or for domiciliary care
4. A review can be initiated at any time by a DO
5. Assessments carried out using the placement tool will be subject to audit and appeal (see section 7)
6 Approved care providers and establishments
Designation as an approved care provider and establishment
For the purposes of this law, a care home on the Island must be approved under the Jersey Regulation of Care Law to deliver the level of care that an individual is assessed as requiring.
Organisations providing personal care at home as part of an HSS-approved care package at home must be an approved provider of domiciliary care services under the same Law
Providers (care homes and domiciliary care) must also have signed up to the provisions set out in a service level agreement with the States
Organisations providing other services (not personal care) as part of an HSS-approved care package at home must have signed up to a service level agreement with the States
Should registration of the care provider lapse under the Law, then payment of the benefit to the said home or organisation will be suspended pending being ended entirely. (Details to be confirmed)
Comments
1. The provider will be required to meet the standards set out in the Regulation of Care Law and, if a care home to sign a contract with the States of Jersey to meet set service level standards as set down in a service level agreement, including the provision of day to day necessities such as soap, towels, laundry and transport (more detail required)
2. States-owned provision, whether care homes or domiciliary care providers, is subject to the same standards
7 Determination of claims and appeals
How claims will be determined
All necessary documentation must be completed and submitted to the Social Security department before any decision can be made on a claim for long-term care benefit
Determination of claims will be made by determining officers
If a claimant is dissatisfied with any determination, the matter can be reconsidered by a second determining officer
If a claimant is still dissatisfied, there is a right of independent appeal
Comments
A claimant, or someone authorised to act on their behalf, can appeal the original decision within 14 days. This has to be in writing.
An appeal will be to a Medical Appeals Tribunal (Soc Sec law ?) if the appeal is to do with a medical condition (ie application turned down as condition not assessed as serious enough to merit high level long-term care)
If the appeal is based on non-medical grounds then an appeal is to the Social Security Tribunal (as currently constituted)
8 Claims and Payments
Claims to benefit
An individual meeting the eligibility criteria, or someone operating on their behalf if they lack capacity, can make a claim for the benefit, which can mean one or all of the following: the long-term care benefit, the means-tested co-payment and the equipment benefit.
Comments
Orders may prescribe:
- the manner in which a claim for the benefit is to be made
- the circumstances in which a claim for the benefit may be backdated
- the information and evidence that must be provided in support of a claim
- the method, timing and notification of payments
- when, by whom and in what circumstances notice must be given of any change of circumstances affecting the continuance of entitlement to the long-term care benefit
- provisions relating to payments in the event of prolonged absence from the home and in the event of death
- procedures for handling claims on behalf of persons who cannot act for themselves.
For persons unable to act on their own behalf due to mental incapacity, a curator can be appointed to act on their behalf [Will investigate with the Viscount whether we can set up “trustees” where there are not sufficient assets to justify a full curator]
Payment of benefit
Orders may make provision as respects matters concerning the payment of benefit including:
a) the frequency and manner of payment of benefit
b) the appointment of a person to receive payments of benefit for and on behalf of another person and then their duties, obligations, penalties etc
The long-term care benefit will be paid four-weekly in advance direct to the care home unless the individual gives written direction to the Social Security department for it to be paid direct to them; the co-payment will be paid directly to the care home by the individual according to their contractual arrangements; any co-payments being paid from the fund will be paid direct to the home by Social Security
Where the Social Security Department has the authority to do so, it can use an individual’s Social Security pension or benefit income to cover the co-payment and pay direct to the care home
Where an individual is receiving a personal allowance as part of the co-payment benefit, this can be paid directly to the individual, to their curator or trustee, or to the home
Payments to those being cared for at home may be in the form of vouchers, which can be used to pay for services provided by approved suppliers, including respite care; these are then redeemable through the Social Security department
Where essential equipment, such as hoists, are required for care to be provided at home and these are supplied at the outset then the costs of supplying these will be met from the long-term care fund (ie the fund will buy the equipment – which can be reused – with a proportion of the recipient’s long-term care benefit being allocated to an equipment voucher so offsetting the cost of buying the equipment. Alternatively, if it is so specialist that re-use is unlikely, the individual may have to buy it themselves or the cost could be deducted from the overall care package over an agreed period of weeks eg a cost of £1,000 could be met by 50 deductions of £20).
9 Administration of the fund
Administration
Accounts of the Fund shall be prepared annually…
Auditors shall be appointed…
Copies of the accounts will be laid before the States…
Monies forming part of the Fund may be invested….
Delegation to professional fund or investment managers….
General provisions as to offences and penalties
Civil proceedings to recover sums due to the Fund
These areas to follow existing provisions in the Social Security law
10 Overlapping provisions with other laws
Comment
Consideration will have to be given as to how this law overlaps with:
- Hospital Charges law – at present, the hospital long stay charges law allows HSS to make charges on longstay patients aged 65 and above. In future, all longstay patients will be charged by HSS, with the cost being met by the LTCB and the co-payment. The budget currently allocated to HSS for longstay patients will be paid into the LTCF.
- Mental Health Law – at present, if individuals are detained under the mental health law, it is not possible to raise a charge under the hospital longstay charge law. This situation needs to be researched in more detail.
- Income Support – at present individuals who cannot afford the cost of institutional care can receive assistance from Income Support. In future, assistance will be available through the long-term care law, and should no longer be available through the Income Support law. Where individuals in future receive a care package at home, and also receive Income Support, the cost of both benefits needs to be taken into account when deciding the financial viability of the care package.
- Social Security (Long-term Incapacity Allowance) – at present working age adults can receive LTIA (and retained rights to Invalidity benefit) whilst living in a care home. The interplay between the social security benefit and the long-term care benefit must be defined – for example, whether receipt of the long-term care benefit disqualifies an individual from receiving LTIA/Invalidity benefit (To be considered)
11 Miscellaneous
Transitional provision and consequential repeals
It will be necessary to pay money into the fund to enable benefits to be paid on day one. This could be achieved by collecting contributions before benefits are payable. Alternatively, money can be paid direct into the fund as a States grant.
Individuals already in care will be eligible for the benefit from day one. However, they will need to have completed an application to confirm their residency status and their care needs. It will be time-consuming to undertake a large number of care assessments and this must be done in advance of the benefit being payable. Special arrangements must be provided to pay for these assessments.
Income Support will no longer support people in residential care, with such financial support to be provided through the long-term care fund; therefore any such provisions in the Income Support Law can be abolished.
Comments
Everyone who is in a registered care home on the day that the scheme comes in and who has been assessed as having care needs that meet the criteria for assistance and who meets the residence requirements will be eligible for the care benefit, subject to their payment of the co-payment.
Those individuals who have been assessed and who at the time the Law comes into operation are assisted through Income Support, but who do not meet the necessary residence requirement for the long-term care benefit, will qualify for assistance immediately under the long-term care benefit so long as they continue to qualify under the care assessment. Others, in care but not assisted by Income Support and who do not meet the residency requirements, will not be eligible for the long-term care benefit at that point.
This means that the provision of support for care home residents through Income Support is redundant and the law providing for this can be repealed
Commencement
Planned implementation date is 2013.
Definitions/Interpretation
Long-term care
Care home
Approved care home
Adult
Co-payment
Minister
Ordinarily resident
Approved care package
Special care packages
Equipment
Medical assessments
Placement tools
Healthcare professionals
‘Residential care’
Owner, in relation to a dwelling
gov.je