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Case Study: Double Recovery

Summary

How Rachel Burley-Stower, a community care law solicitor in Brighton, challenged a Local Authority who attempted to include in a financial assessment a Personal Injury settlement that is administered by the Court of Protection.

The situation

Rachel was instructed by the Deputy for Anna, a young woman who had suffered lifelong injuries at birth. A lump sum general settlement was reached when Anna was nine years old for £3 million, to be administered by the Court of Protection.

Anna lived at home with her mother; due to the serious nature of her disabilities, a comprehensive care package was put in place and funded by social services until she turned 18.

At the age of 18 Anna’s needs were reassessed by social services under the Care Act 2014 which governs social care provision for adults. This included a financial assessment. Following the assessment, the Deputy started to receive invoices of £3,700 per month for the care at home provided to Anna by social services.

The Deputy asked social services to explain why a charge was being applied. Social services did not reply. Before instructing Martin Searle Solicitors, the Deputy approached social services numerous times with no meaningful response. The Deputy was confident that social services were wrong but decided to seek independent advice and assistance from an expert health and social care lawyer who was more familiar with the new Care Act provisions.

What Martin Searle Solicitors did

Rachel Burley-Stower provided the Deputy with detailed advice confirming that her suspicions were well founded. The Deputy instructed Rachel to write to the Local Authority. Rachel’s main arguments were:

Duty to give reasons

Precedent case law from the Court of Appeal confirms that, where personal budgets are being proposed, it is unlawful for social services to simply notify a service user of the “bald figure without any explanation” since the recipient would have no means of satisfying himself or herself that the weekly figure has been properly calculated. The Court held that this is what “simple fairness requires”: it is not acceptable for the service user to have to seek an explanation as to how the sum has been calculated. In Anna’s case, the Deputy and her mother needed to know which of Anna’s high level care needs the personal budget was designed to cover.

Capital Disregard

Rachel argued that in Anna’s case, social services had misunderstood the way that the Care Act treats personal injury trusts and damages administered through the Court of Protection. Alternatively if this was not a misunderstanding, social services were incorrectly applying the law. Anna’s trust should therefore be disregarded in her financial assessment.

The result

Social services conceded and agreed that the personal injury settlement would not be taken into consideration in Anna’s financial assessment. The payments that had already been made were refunded.

The Deputy was very pleased with the outcome which had a direct impact for Anna and which also allowed the Deputy to demonstrate that she had taken sufficient steps to demonstrate her expertise within the framework set out by the Office of the Public Guardian Professional Deputy Standards.

If you need expert advice regarding paying for care our specialist community care law team can help. Contact us today on 01273 609911, or email info@ms-solicitors.co.uk to find out more.

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