While only around 1 in 4 of us will require to go into residential or nursing care, many of us are concerned about the cost of care as we get older.
If you do require residential or nursing care, the Local Authority has a duty to assess your needs and provide care if you are assessed as needing it. Some recent legal cases have developed this area of law further.
On The Reasons Behind A Council’s Decision
In CA v Western Isles Council 2025 CSOH 103, an Attorney sought the reasons behind a Council’s decision not to provide an elderly adult with residential care, but only at-home care.
The Attorney won and the Court ordered the Council to provide reasons for their decision, on the basis that it was implied by the relevant legislation that Councils should give reasons for their decisions. Since the legislation requires an adult’s own wishes to be taken into account, it was only fair that he or she should be able to find out what the Council made of those wishes.
The case provides a basis for seeking greater transparency from a Council on their internal decision-making processes and, perhaps, for a reassessment of that decision.
It does not, however, mean that a failure to give reasons automatically means that a decision is wrong or should be overturned.
On Who Pays For Care Following A Move To England
In Priory Healthcare Ltd v Highland Health Board 2019 CSOH 17 an adult living in Scotland had been receiving at-home care paid for by the local Scottish NHS Board but decided that she wished to move to England. Shortly after making the move, she was hospitalised and assessed by the local English Board as requiring full residential care.
While initially the Scottish NHS Board paid for the care, they stopped doing so. The English Board sued, seeking the Scottish Board to continue paying but it was found that as the adult moved to England of their own free Will and not of necessity, the Scottish Board was not obliged to pay for care subsequently received there.
The case demonstrates that care funded in Scotland will not automatically continue if a person moves to England, perhaps for family reasons. If a person is already in residential care in Scotland but has to move to England, however, that may be different.
On Trying To Avoid Care Costs
LMS (2020) EWCOP 52 was an English Law case which involved a Court being asked to authorise a change to a grandfather’s Will to redirect a disabled grandchild’s inheritance into a Trust, rather than passing it to them directly. A direct inheritance would have adversely affected their entitlement to state benefits.
The Court agreed to the change on the basis that it was satisfied that this was what the grandfather would have wanted. Evidence was led which proved that had he known that the inheritance would have affected his grandchild’s benefits, he would have changed his Will.
Commentators have suggested that this case could be used to avoid falling foul of the “deliberate deprivation of capital” rules by showing that the intention behind an asset transfer was not the avoidance of care costs, but rather the implementation of a Will maker’s true wishes. Real evidence is required however and not pure speculation after the fact.
It remains to be seen how this would be dealt with by the Scottish Courts, but it should not be taken as a substitute for taking proper advice in the first place.
