More info needed for adopting new NHS care funding options, says local lawyer

New rules on healthcare funding which will give people the ‘right to have’ a budget so that they can arrange their own care have been met with both approval and caution by local solicitors.

John Marshall, a partner with GHP Legal which has offices in Wrexham, Llangollen and Oswestry, said today that whilst ‘the right to have’ a personal health budget undoubtedly brings many advantages, a lot of people will find managing their own budgets too onerous a task and there is insufficient information available to show them how they can do it without taking on the responsibility personally.

Since April this year people eligible for NHS Continuing Healthcare have had a ‘right to ask’ for a personal health budget, but from October 2014 this will change to a ’right to have’.

This means that from 1st October an eligible person will be able to demand that direct payments are made to them ‘as of right’, which will enable them to choose how their care is paid and supplied. Utilising the money provided, it will be possible for them to put together a care package that is tailor-made to their own specific needs.

“The changes could,” says Mr Marshall, “be significant for an elderly person in a care home, or someone needing to go into one. For example, they could have a payment sent to them and instead arrange care in their own home. So effectively they would be employing their own carers and having the cost funded by the NHS.

“However, the majority of people in this position either don’t have capacity to organise their own care or find the responsibility of managing the funds and potentially carrying out the duties of an employer an overwhelming burden. And whilst there is a simple way of overcoming this, information about how to do it is thin on the ground.
“An ideal way of dealing with the new funding choice is for people to receive the payments into an Independent User Trust (IUT), but I would suggest little information is being made publicly available about this as it is a very complex area of law and the initial trust document needs to be drawn up professionally and tailored individually, having regard to all circumstances.

“An IUT is a way in which money can be held by nominated people - usually family relatives and a professional trustee, making up a minimum of three trustees. Those people then hold the direct payments and commission and pay for the care which the recipient needs.

“In addition to the burden being taken off the person needing the care there are also certain advantages regarding employers’ national insurance contributions that are available to an IUT but not available when an individual employers their own carers.

“Currently the new rules will only apply to people needing care in England but common belief is that similar rules will be extended to Wales in due course. The NHS Mandate also commits to a further roll out of personal health budgets to people who could benefit from April 2015.

“In view of the timescales I would strongly advise that anyone eligible for the ‘right to have’ a personal budget but who is not sufficiently confident to handle one seeks legal advice as soon as possible so that they can make a fully informed decision about their future care.”

Victoria Wilson

Victoria Wilson


A Partner and Head of our Probate, Wills, Trusts and Tax team