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Martin Searle Solicitors

Care At Home: Using The Social Care Ombudsman To Challenge Funding Decisions

Our Community Care Law team use the Ombudsman service to successfully challenge Local Authority refusals to fund adequate care at home packages.

People continue to be told by Social Services that they will not fund a package of care at home that costs more than the Local Authority’s maximum budget level. Alternatively, they will not fund care at home if the cost would exceed the amount that the Council would pay for a care home placement.

The Care Act 2014 and the Care and Support Statutory Guidance is clear. Paragraph 11.22 of the Guidance states “Local Authorities should not use arbitrary funding ceilings to force individuals to give up their independence and move into a care home against their will”. Nonetheless Councils continue to apply caps and ceilings and individuals, families and Professional Deputies may not realise that such caps are unlawful.

Threatening to bring a Judicial Review in the High Court can be a powerful remedy to challenge an unlawful or unreasonable decision made by Social Services. However, Legal Aid is not automatically available in every case and these types of actions are expensive.

An alternative remedy is to use the Local Government and Social Care Ombudsman (LGSCO) process. Throughout 2018 we have seen a series of helpful LGSCO decisions about Care Act caps and ceilings. At the conclusion of a complaint against Wiltshire County Council, the Ombudsman Michael King released a statement reminding Local Authorities of their duties. In this case, the Council had used a matrix tool to calculate the support it provided to a severely disabled man and his main carer, his mother. The Council said that he was receiving care at the “top” of their maximum budget level and they cut both his respite care and his transport to a day centre. Mr King was clear that “Councils cannot put a cap on people’s budgets: the Care Act says eligible needs must be met, regardless of the cost”.

In one of our own cases, the Ombudsman found that Oxfordshire County Council had not fulfilled its Care Act duties to Mrs B when it set a personal budget which was not realistic or suitable to meet her needs. A best interest meeting had decided that Mrs B’s needs were best met by a 24-hour, one-to-one, live in carer, in her own home. The Ombudsman’s view was that the Council should have calculated the personal budget on that basis, rather than based on the cost of placing her in a care home. The Council agreed to recalculate a realistic personal budget figure, almost doubling the original figure, which was backdated to January 2015, and Mrs B continues to be cared for in her own home.

Although Ombudsman decisions are not binding precedents, they serve as useful reminders to Councils about their Care Act duties.

Other decisions have gone even further, requiring the Council to review or amend its policies or procedures and to identify other service users who may have experienced similar unlawful decisions.

As specialist Health and Social care lawyers, it is our duty to challenge Local Authority decisions that either set ‘maximum budgets’ for care at home packages, or outright refusals to fund any care at home that is in excess of the comparative cost of a care home placement.

Our team believe that it should be a basic right for all of our clients to receive care and support to remain in their own home. Our Community Care Law team can help you or your clients challenge this type of arbitrary decision-making to achieve the best possible outcomes. Contact us today on 01273 609911, or email info@ms-solicitors.co.uk.

 

 

 

 

 

 

 

About the author

Cate Searle

cate-searle

Based primarily in our Brighton office, I lead the community care law team. As one of a very small number of solicitors specialising in NHS continuing healthcare law, I have built an expanding practice in this area which has given our firm a nationwide profile far and above its relative size. I also provide expert opinion on community care law issues for the specialist press, speak as a guest lecturer and train other legal professionals. In 2011 I was asked by the Law Commission to give my views as part of the consultation on proposals for inclusion in the Adult Health & Social Care Bill.

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