Article by Lauren Godfrey from Buckles solicitors

Fertile Grounds: NHS Funding and the Agricultural Health Landscape

Aging can bring about a host of challenges such as decreased mobility, higher fall risks, and increased susceptibility to chronic conditions such as dementia, heart disease, and diabetes. This in turn can lead to hospitalisation or the need for long-term care. In the UK, financial support for these services is complex, often varying greatly based on personal circumstances or location.

Long-term care costs can be substantial, with monthly averages of £4,640 for residential care homes and £5,640 for nursing care. The financial burden of long-term care can be overwhelming for individuals and families. For farmers in particular, the situation is even more complex due to the intertwining of their business and home lives, often involving family members with their own interests in the assets.

While the NHS provides healthcare free at the point of need, NHS Continuing Healthcare Funding is reserved for those with a "primary health need," excluding many who require specialist or care home support. This leaves individuals subject to means testing for financial support, as social care needs (met by the Local Authority) are not free. As most farmers will have assets above the local authority funding threshold, many will be left wondering what will happen to their home and business if care is needed.

Funding thresholds

In the UK, roughly half of care home residents aged 65 and over are self-funders, while the other half receive state funding for their residential care needs according to the Office for National Statistics (ONS).  The level of contribution that individuals need to provide towards care costs will depend heavily on their location within the UK, along with their savings, investments, and property value.

Those requiring professional care must undergo a needs and financial assessment by their local council to establish what, if any financial support they will receive. In England and Northern Ireland, anyone with capital assets over £23,250 must fully fund their care (this is expected to rise to £100,000 from October 2025); whereas those with assets between £14,250 and £23,250 must make partial contributions, and those with less than £14,250 will pay from their income only.

The cost of care without NHS funding can be prohibitively high and will vary significantly, with private at-home care services averaging around £20 per hour. Continuous live-in care, expenses can range from £800 to £1,600 weekly, depending on the level of care required, whilst care home costs also vary, with residential homes averaging £700 weekly for basic assistance and nursing homes exceeding £850 for 24-hour medical care. These sums are further influenced by location and the severity of the health conditions involved.

Will I have to sell my farm to fund care home fees?

Under the Care Act 2014 in the UK, local authorities are mandated to evaluate an individual's care needs and financial capability to contribute to their care costs. The assessment encompasses savings, property including the primary residence, investments like stocks and shares, business assets, and income sources such as benefits, pensions, and annuities. While not all assets are factored into this evaluation, some can be excluded, or ‘disregarded’, thus not affecting the financial assessment for care funding.

For individuals with ownership in a farm or farming partnership, these assets are not automatically disregarded. However, temporary exclusions may be applicable under certain circumstances.

However, there are two main types of assets to consider in this context:

1. Joint Business Assets (excluding land): When business assets, excluding land, are jointly owned with another individual, each person is typically considered to own an equal share. This means that each party is deemed to own half of the business assets. This may not be the case in reality, and so it is important that beneficial interests are properly documented.
2. Joint Business Assets of Land and Buildings: In cases where business assets involve land or buildings co-owned with another individual, the calculation becomes a bit more complex. The value of the co-owner's share in the land or buildings is usually determined as half of the total value of the property, minus a 10% joint ownership discount. Again, this may not be the case and therefore specialist valuations may be necessary to determine an individual’s share.

Where assets are jointly owned, only the care user’s share in the assets will be considered

However, issues can arise with shared property due to beneficial interests, where individuals may financially benefit from a property's sale despite not necessarily holding legal title deeds, which is quite common in farming partnerships.

A beneficial interest might be established if contributions were made towards the purchase price, mortgage, repairs, or alterations, among other situations. This interest could affect financial assessments, particularly in determining contributions towards care home fees, as councils must evaluate the value of such interests.

Because of this, shares in farming partnership can be particularly challenging to sell, and they may have a limited value on an open market which could affect their valuation for the purposes of a financial assessment.

Assets which are held as partnership assets, belonging to the partnership would be excluded from a financial assessment.

Attempting to circumvent care fee contributions by transferring away such assets to partners or other beneficiaries can trigger the local authority's “deprivation of assets” rules. Under these rules, any assets transferred under the guise of reducing assessable wealth to avoid liability for care fees could be included back into the financial assessment for care contributions, in that the Local Authority will treat the individual as still owning the asset (notional capital).

NHS Continuing Healthcare Funding

NHS CHC is a fully funded package of care provided by the NHS for individuals deemed to have a "primary health need." While the exact definition of a "primary health need" remains unclear, it generally refers to needs that surpass social care requirements handled by the Local Authority. These needs are complex, intense, and unpredictable, falling outside the scope typically covered by social services.

NHS CHC is not means-tested and encompasses all care costs, including services that are traditionally considered social care. Eligibility involves a two-stage process:

Stage 1 - Checklist: This preliminary assessment evaluates a patient's well-being across 12 domains to determine NHS CHC funding assessment eligibility. Healthcare professionals assign scores based on the patient's needs in these areas. Progressing to the next stage depends on specific score combinations, aiming to include individuals requiring a comprehensive assessment.

Stage 2 - Decision Support Tool (DST): If an individual qualifies from the checklist phase, a multidisciplinary team conducts a detailed assessment using the DST to evaluate the person's needs more thoroughly. This assessment categorises care needs on a spectrum from 'no need' to 'priority.' CHC funding eligibility is based on whether the needs constitute a "primary health need" rather than the scores in the domains. The MDT assesses the nature, intensity, complexity, and unpredictability of the needs, not just the diagnosis. While domain scores may indicate a primary health need, the final determination requires applying the primary health need test.

Accessing NHS CHC funding is particularly complex and can be somewhat of a postcode lottery, so it is always advisable to enlist specialist legal support to provide the necessary advice and assistance in respect of eligibility and the assessment process involved.

Your legal representative can also attend Decision Support Tool (DST) reviews as an advocate, or assist with challenging eligibility decisions, whilst also advising on retrospective claims after a person’s death. Often in such emotive and sensitive situations, it is this kind of experienced, impartial support which can make all the difference in reducing stress levels and achieving a more positive outcome for all involved.

For more information go to Buckles solicitors