How Cate Searle, Head of our Community Care Law Team based in our Brighton office, successfully argued for choice and suitability of care home placement under the Discharge to Assess funding framework.
Molly is aged 87 and, before the Coronavirus pandemic, lived in her own home in North Yorkshire. She had two home visits each day from an agency carer, arranged by Social Services. The carer helped Molly manage her personal care and other activities of daily living that Molly found difficult due to her diagnosis of dementia. Molly’s son and daughter were supportive and often came to stay and to help out. Neither lived nearby with her daughter being the nearest, 80 miles away in Derbyshire.
In June 2020, Molly was admitted to hospital following a number of falls and a decline in her physical health. The hospital said that it was not safe for Molly to go home and she needed a care home placement for at least a few weeks. The hospital discharge team found Molly a place in a care home in York, twenty miles from her home. They explained that Discharge to Assess funding would pay for her care home fees in full if she went to the proposed care home. This would mean she would not have to spend her modest savings paying for a care home.
Molly understood that it was unsafe to go home because of her additional care needs. However, she did not want to be in a care home that was so far away from her friends and her local community and nowhere near her daughter or son. She understood that the Coronavirus restrictions would make contact with family and friends even more difficult. She was worried that the proposed placement would leave her stuck in the middle of nowhere, without the chance for visits in the care home gardens or through the care home windows, which she had seen on the news.
Molly told the hospital discharge team Social Worker that she would prefer to go to the care home that was a few minutes’ walk from her daughter’s home in Derby. The Social Worker said that this was not possible under the emergency Coronavirus funding rules and that the care home in North Yorkshire was the only option.
Molly asked her daughter Jayne to get legal advice about her rights and Jayne contacted Cate Searle. Cate arranged a video call with Molly and Jayne to talk about Discharge to Assess funding and the emergency Coronavirus legislation. Cate explained that the emergency legislation and guidance had suspended the normal protocols about choice of discharge placement. Cate advised that the strongest argument was that Molly had a need to move to the care home near her daughter, rather than saying that this was her preference. This is because Health and Social Services have a legal duty to meet Molly’s needs, but no duty to meet her preferences.
Molly asked Cate to write to the hospital discharge team’s Social Worker. Cate’s letter set out the reasons why the care home in York was not suitable to meet Molly’s needs, particularly her need to have regular face to face contact with her family for the remainder of the pandemic restriction period.
Jayne had established that the York care home would not allow residents to have any family visits, not even in the garden. In contrast, the Derby care home had a good Covid-secure visitor policy.
Cate’s letter reminded the Social Worker of the Local Authority’s duty to promote Molly’s wellbeing and that Molly was extremely anxious about being in a care home far away from anyone she knew. Cate pointed out that the Care Act wellbeing principle had not been suspended by the emergency legislation. In addition, there was nothing within the Covid-19 Hospital Discharge Service Requirements that prevented Molly from having Discharge to Assess funded care in a different Local Authority area, if that was the appropriate way to meet her needs.
The Social Worker agreed that Molly could move to the care home in Derby with Discharge to Assess funding. Molly was able to see her daughter and grandchildren several times each week with social distancing measures in place. Her placement is still fully funded because Health and Social Services have not completed the relevant assessments to determine what her long term care and support package should be. Molly plans to sell her house in Yorkshire and buy a flat near Jayne. This will allow her to live in her own home again with support from carers and her family.
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