How Andy McKay, expert Community Care Law solicitor based in our Brighton office, secured backdated care home fees worth over £20,000 by challenging Social Services and involving the Local Government & Social Care Ombudsman.
Jasmine is Attorney under a Lasting Power of Attorney (LPA) for her mother, Lilian. Lilian had been self-funding her care home fees in a private care home based in South West England for 16 months.
When her savings approached the capital limit of £23,250 Jasmine asked Social Services to help pay Lilian’s care fees under the “paying for care rules”. Jasmine felt that Lilian needed to remain in her current care home because they were skilled in managing Lilian’s acute anxiety.
Jasmine lived close to the care home so Lilian benefited from frequent and high quality visits from her daughter which were important for her wellbeing.
Social Services assessed Lilian’s care and support needs under the Care Act 2014. They agreed that Lilian required a care home placement, but they set a personal budget that was much lower than the care home fees Lilian had been paying. The care home refused to reduce its fees. Social Services said that Lilian would have to move to an alternative cheaper care home.
Jasmine looked at all of the alternative care homes that Social Services suggested, but it was evident that none of them could meet Jasmine’s individual needs.
Jasmine stayed in close contact with Social Services to find a solution and asked them to increase Lilian’s personal budget so she could stay at the care home. Her request was refused. Jasmine continued to use Lilian’s income to pay towards the care home fees but her means were insufficient and she went into debt. The care home served notice for Lilian to leave because of the care fee arrears.
After several months, Social Services agreed to increase the amount that it would pay to the care home in addition to Lilian’s payments, but refused to backdate the increase. The increase was still not enough to cover Lilian’s actual care costs.
Social Services told Jasmine that not only would she have to contribute personally as a third party Top Up of £100pw but she was also responsible for all the care fees for the period before the Local Authority agreed to increase its funding offer. This amounted to over £20,000.
Jasmine asked Martin Searle Solicitors to help prevent Lilian being moved to a new care home and to help with the backdated funding.
Andy wrote to Social Services stating that Lilian needed to remain in the care home, and this was not merely a preference. He explained that this meant Social Services had a duty to cover the full cost of Lilian’s placement, subject to her income contribution, and that charging a Top Up would be unlawful. Andy referred to medical evidence and also set out the legal basis for backdating the increased Local Authority fees.
Social Services eventually agreed to increase the funding by around £350pw so that Lilian would not have to move. But they still refused to backdate the increase. Andy referred the complaint to the Local Government and Social Care Ombudsman (LGSCO) to investigate.
The LGSCO investigation was lengthy and Social Services maintained their negative decision, even withdrawing the increased funding that they had agreed to safeguard Lilian’s placement. The LGSCO put forward several draft decisions for the parties to consider, and Andy made further complex and compelling legal arguments to counter Social Services’ submissions.
Several ‘draft’ decisions were put forward by the LGSCO and then revised again following further submissions by Andy.
The Ombudsman’s final recommendation was that Social Services had breached several aspects of the Care Act due to its flawed financial and care assessment process. It also recommended that Social Services should pay some of Lilian’s legal fees in pursuing the complaint, and apologise to Jasmine for the stress caused in this long-lasting dispute.
In addition, Social Services were directed to improve its practices in cases where a self-funding resident is about to fall below the self-funding capital limit to ensure better communication.
The Local Authority accepted the recommendations and agreed to backdate the full care fees to the date that Andy had identified. Jasmine accepted the recommendation from the LGSCO that while the Local Authority needed to pay the shortfall of £20,000 (and the higher weekly ongoing contribution), she would pay the top-up of £100pw from the point that the Local Authority’s increased their original funding offer.
Jasmine was extremely relieved and delighted with this outcome. It gave her mother the security she needed to ensure that she could remain in the appropriate care home and Jasmine could return to supporting her mother without having the stress of all the financial uncertainty hanging over her.
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