7 Key Points On Enforcing Care Debts
Matthew Grant
I am receiving an increasing number of enquiries from individuals whose relatives are being sued by local authorities for care costs – or worse still, from clients who are being sued personally for their relative’s care costs – many dating back some years.
Is this a knee-jerk reaction to public sector cuts? Are Social Services departments across the country trying to mitigate the staggering decrease in budgets by reopening old, dusty filing cabinets to forge a new revenue stream? A cynic might well say yes; a realist might decide that the zealous debt collectors are merely protecting the public purse.
Some are lucky enough to receive notice of a claim before it is issued. The less fortunate do not learn what has happened until further down the line, and often not until a local authority tries to enforce the debt. Either way, being landed with the threat – or reality – of litigation is a frightening experience. Understandably, it instills anger, resentment and distress as suddenly vulnerable people or their relatives unexpectedly find themselves facing debt claims.
When Social Services try to recoup these costs, often by bringing claims at the “eleventh hour”, a number of issues may arise as set out below:
1. “Till death do us part”
Where your relative has died whilst in care, a claim will be brought against “personal representatives”. If your relative has died without having made a will and had a modest estate, this can create the added inconvenience of having to obtain a grant of probate before you can defend this claim. It can also make the process even more frustrating or even pointless, as the estate may have already passed down to the beneficiaries and no money will be left.
2. “Identity crisis: It’s all relative?”
Some Social Services department have been known to proceed against relatives personally – presumably because named individuals have a greater incentive to pay.
However, there are limited circumstances where Social Services can seek to claim your relative’s care costs from you personally, usually where you have done some injustice to Social Services. Invariably this “raises the stakes” as allegations become more personal and – often necessarily in this area of law – more damning.
I do wonder whether the greater prospect of recovering unpaid care fees from a relative is counter-productive in the long-term. After all, a relative accused of misleading Social Services will instinctively – and understandably – feel a greater need to fight to “clear their name”. So, the battle becomes longer, the struggle steeper, and legal costs greater.
I have dealt with claims where local authorities proceed against the wrong party. Such “valiant” efforts have proven to be costly and embarrassing – local authorities find themselves having to pay Defendants’ costs as they are made to own-up to a lack of foresight and planning.
3. “Falling in and out of touch”
Let’s assume that Social Services do pin their colours to the right mast. Often by the time local authorities get around to taking action, the person receiving care has passed away and their personal representatives have moved home. It is therefore not surprising that local authorities write to old addresses or even have court papers sent to the wrong place. This can result in courts issuing Judgment in Default which might fall to be discovered by “chance”. A person faced with a Judgment in Default should seek legal advice as soon as they become aware of it – delay can be costly.
4. “Know your Limitations”
It is quite common for local authorities to seek to recover arrears which are very old and/or span a long period of time. In most cases the law only allows Social Services to claim back a period of six years but I have seen cases where this provision has been overlooked.
If you or a relative are faced with a claim for old debts then you should resist the temptation to contact the local authority yourself. In haste, you might inadvertently say something which “acknowledges” the debt and re-start the clock ticking on what would otherwise remain a “time-barred” debt. Instead, you should seek advice about limitation and let your lawyer do the talking.
5. “Toeing the Abuse of Process line”
Sitting on issues for years and issuing proceedings at the last minute might leave local authorities facing applications by Defendants for abuse of process. This is a big stick that Defendants can wave, but it requires expert advice to ensure success.
6. “Defences”
The big question on everyone’s lips is “do we have to pay anything?”. This is not a straightforward question to answer as this will depend on the individual circumstances. For instance, what law is Social Services relying on? What were your relative’s financial and personal circumstances at the time? Is Social Services’ financial assessment wrong? Are the care costs accurate? These are a few of the initial questions that an expert community care lawyer would need clear answers to. A good lawyer would look at all the facts, advise you about your prospects of defending a claim, and tell you at a very early stage if it would be in your best interests to settle, and to advise on necessary tactics to reduce the overall liability.
7. “But she was entitled to fully-funded care…?”
Sadly this is seldom a defence to a County Court claim by Social Services, but that’s not to say your relative wasn’t eligible for NHS Continuing Healthcare. Unearthing painful issues about care fees can reignite a desire to argue that a relative did have a primary health need and should have had their care fees paid in full by the Primary Care Trust. A good community care lawyer would assist with this too by advising on the possibility of retrospective claims. A retrospective claim, if successful, could claw back money for the estate which might be more than the money that has to be repaid to Social Services.
Social Services departments are generally in a strong position to recover care fees – but only if they get it right. My experience in this area of law shows that a person facing a claim will usually benefit from expert legal advice both in terms of the amounts owed and the process used.
