In the UK the election campaigns run by the various political parties have included statements and debates around long term care provision, and the cost of care that could be covered by the state. The cost of care has been increasing and the problem around funding for care will continue to grow over the coming years unless action is taken.
The legislation around long term provision varies across the UK. In England, provision is included in the Care Act 2014 and for those residing elsewhere in the UK provision is included under section 21 of the National Assistance Act 1948.
In both instances the assessment for residential accommodation is means-tested and local authorities will assess claimants. The Charging for Residential Accommodation Guide (CRAG) still applies in Scotland, Wales and Northern Ireland and each country has its own CRAG. In England, the CRAG was replaced from 1 April 2015 by the Care and Support Statutory Guidance.
Where care is needed, the cost of will be met by the local authority however the cost of the residential accommodation is means-tested. In England, Scotland and Northern Ireland there are upper and lower limits which can vary by country. If an individual has assets in excess of the upper limit then they will fund the costs in full, over the lower limit they will have to fund part of the costs, and where assets are below the lower limit there is no requirement to fund. For those living in Wales there is only an upper limit. Whilst we are only looking at capital assets, it is worth making the point that there are also assessments against income.
When a local authority makes a capital assessment one asset that is listed as being disregarded is the surrender value of any life insurance policy (or annuity) and it is important to look at the wording of paragraphs 53 and 54.
53) The treatment of investment bonds is currently complex. This is in part because of the differing products that are on offer. As such, local authorities may wish to seek advice from their legal departments.
54) Where an investment bond includes one or more element of life insurance policies that contain cashing-in rights by way of options for total or partial surrender, then the value of those rights must be disregarded as a capital asset in the financial assessment.
So, the guidance does suggest that the local authority seek independent legal advice with regard to the treatment of investment bonds. It also states that a bond on a life assurance basis should not be included in the capital assessment, meaning that a bond written on a capital redemption basis would be included.
A similar position is available in the other countries of the UK. The exclusion is contained in the CRAG guidelines for Scotland and Northern Ireland on how local authorities should assess people for long-term care costs. In Wales the framework has changed as a result of The Social Services and Well-being (Wales) Act 2014 becoming effective from 6 April 2016 and the treatment of investment bonds is consistent with the rest of the UK.
Deprivation of assets
One area to pay attention to is around deliberate deprivation – investing in an investment bond on a life assurance basis, specifically because of care cost concerns.
Anyone who places funds into investment bonds, where a motive for the investment is to avoid a care fees charge, runs the risk of triggering the deprivation rules and having the value of those bonds treated as a capital asset for the purposes of means-testing.
The purchase of an investment bond in this regard is specifically mentioned in paragraph 9(g) of Annexe E of the guidance for England:
9) A person can deprive themselves of capital in many ways, but common approaches may be:
g) Assets have been used to purchase an investment bond with life insurance.
Paragraphs 11 and 12 then helpfully explain what considerations the local authority needs to take into account when deciding whether deprivation for the purpose of avoiding care and support charges has occurred. These include the motivation for the deprivation, timing and expectation of needing a contribution to the cost of their care.
Whilst the other nations have individual CRAGs, in the respect of deprivation the wording is similar and include the following:
6.57 Trust should only consider questions of deprivation of capital when the resident ceases to possess capital which would otherwise have been taken into account.
6.63 The timing of the disposal should be taken into account when considering the purpose of the disposal. It would be unreasonable to decide that a resident had disposed of an asset in order to reduce his charge for accommodation when the disposal took place at a time when he was fit and healthy and could not have foreseen the need for a move to residential accommodation. The local authority should bear in mind, however, that deprivation can be considered for resources disposed of at any time...
From an advice perspective, when advising clients who may require long term care it is important to clearly document the reasons an investment bond wrapper is suitable. There are a number such as tax efficiency, simplicity, tax deferral, switching of investment funds and so on, however due to the deprivation rules, the favourable treatment of a bond wrapper for assessment is a benefit rather than a reason for using it.
In January 2009, a professional adviser was fined £28,000 by the FSA, as it was, at that time, for failing to adequately advise investors about the risks associated with certain transactions. Part of the reasons for the action issued by the FSA was that the professional adviser had issued a suitability letter saying that investment bonds had been recommended ahead of other tax efficient wrappers because local authorities, when assessing whether individuals have the means to pay for residential care, do not include investment bonds in their financial assessment.
The FSA pointed out that a local authority may decide that the purchase of an investment bond was deliberate deprivation, and may include the bond in their financial assessment.
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