How Clare English, Community Care lawyer, helped a family to prove that a back-payment for care was not deliberate deprivation of assets.
Rose lived alone until she suffered a severe stroke and developed significant care needs requiring around the clock support. Rose’s home was no longer suitable due to her physical disabilities and she was determined not to go into a care home. Rose had mental capacity to make all of her own decisions about her finances and her care; she decided to move to the self-contained annex in her daughter Cara’s home.
Cara and her husband cared for Rose, while running a business and allowing Rose sole use of the annex, which they had previously rented out. Cara paid all of Rose’s bills, and paid for private carers, private physiotherapy and disability equipment. These arrangements continued for two years until Rose’s former home was finally sold. Rose repaid £140,000 to Cara, and in a document prepared and witnessed by her solicitor, stated that this was backdated payment of £2,000 per week for all of the above costs.
When Rose’s care needs increased, she moved to a residential care home, paid for from her savings. When her savings ran out, Rose asked Social Services for financial assistance. They refused, saying that the payment of £140,000 was a gift which amounted to deprivation of assets. They said that Rose had made the gift with the intention of avoiding care home fees. Social Services said it could only allow £30,000 of the payment to Cara.
Clare English challenged the Social Services financial assessment, providing evidence that Cara had loaned £140,000 of her own money to pay for Rose’s care and living costs. Social Services rejected this evidence but did not provide any clear rationale. They said again that £2,000 per week was deprivation of assets and that it was excessive spending on private care costs. After going through the Local Authority complaints process, Clare submitted arguments to the Local Government and Social Care Ombudsman for investigation.
The Ombudsman criticised Social Services’ decision-making and failure to give reasons for their decision. The Ombudsman said Rose and Cara should have the opportunity to respond to its questions about the breakdown of expenditure. Social Services should then conduct a further review into why the evidence provided was or was not sufficient to explain why Rose repaid Cara at the level she did.
After considering Clare’s further submissions, Social Services conceded that they were wrong. They accepted that the repayment of £140,000 was not a gift nor deprivation, but an appropriate payment by Rose for care and support arranged and provided by Cara. As a result, Social Services accepted that they had a duty to help pay the cost of Rose’s care home placement.
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