SIR, I REFER to an article published in the Peeblesshire News on Friday, August 15: ‘Care home fees and the family home’. I wish to point out that I feel that the article failed to provide an accurate picture of this very complex area and would like to provide our view of this issue.

Below I have given our specific comments on the article which I hope will assist in clarifying a number of issues related to this subject.

Free personal care is an entitlement in a care home for the tasks that are classed as such in the Appendix to the National Health Service and Community Care Act 1990 - came into force 12 April 1993. If someone requires personal care then an element of their care home fees is supplemented by the local authority in Scotland at a weekly rate . The first sentence is misleading because a lot of the care home fees are for the accommodation which is not free.

Going into a care home is expensive and of course people have to use assets to pay the fees. A family home that is empty is an asset which may need to be sold to pay the fees. If a family has contrived to remove the asset to ensure that it cannot be sold and used as an asset by sharing the ownership although not living in it a local authority can take legal action to retrieve the value of the asset if it ends up having to meet the care home fees.

There are no time limits on when someone can be regarded as having notional capital. However, time is relevant and the longer the time between the disposal of the capital and the application for financial help, the harder it will be for the local authority to show that the disposal was made in order to reduce the resident’s liability for charges.

The Scottish Public Services Ombudsman (SPSO) has expressed concern that because neither the legislation nor the guidance gives a time limit, allowing local authorities to use their discretion, there may be a public perception of unfairness about the “marked difference in the amount of time taken into consideration by different local authorities”. The SPSO recommends consideration of whether further guidance is needed.

In some circumstances, a resident might consider giving away capital in order to avoid it being included in her/his financial assessment. However, there are rules and local authority powers which are designed to investigate whether or not someone has deliberately got rid of capital. These powers include being able to recover costs from the recipient.

If a resident is in receipt of pension credit, and uses savings to clear a debt (including debts which are not immediately repayable) s/he will not be considered as having deliberately deprived her/himself of capital to maximise entitlement.

An owner occupier may consider giving away her/his home, provided s/he can preserve her/his right to live there during her/his lifetime. There is a legal process for doing this.

One way of doing this is through a protected property trust. This is a legal instrument which must be individually drawn up by a lawyer. Each protected property trust will have its own set of terms.

The consequences for donor and recipient of giving her/his home away could be both complex and far-reaching. The general rules about deprivation of capital apply to the owner occupier’s actions. This means that any arrangement made with the specific purpose of avoiding care home fees is likely to count as deliberate deprivation of capital and the resident may still be treated as if she possessed it.

The recipient of the property might lose control over the property by, for example, the property being treated as an asset in a divorce settlement, the recipient dying before the donor, or the recipient being made bankrupt. In these circumstances the owner occupier’s preserved right to stay in the home may be lost.

A resident considering doing anything of this kind should be urged to obtain advice from a specialist organisation, for example, Age Scotland or local Citizens Advice Bureau, or to take independent legal advice, as suggested at the end of your article.

I am, etc.

John Montgomery, Manager Peebles & District Citizens' Advice Bureau