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Case Study: Securing a Refund of Care Costs that should have been paid under the Discharge to Assess funding scheme

How Cate Searle, Health and Social Care solicitor based in our Brighton office, helped a client recover secure a refund of care costs that should have been paid under the Discharge to Assess funding scheme.

The situation

Alan is Attorney for Health & Welfare and Property & Finance for his mother in law Celia, aged 98, who lives in her own property in South East England, next door to her daughter and son-in-law, Polly and Alan. Celia had good physical and cognitive health, but could no longer drive or manage her housework. She had a home help who came in twice a week, and Alan, aged 75, helped her with shopping, getting to medical appointments and attending church activities. Polly could not support Celia, as she has dementia, and Alan was caring for Polly at home.

In spring 2021, Celia had an unplanned admission to the local district hospital, where she remained for almost 8 weeks. She made it very clear to the hospital staff that she would not contemplate a care home admission and insisted on returning home.

When Celia was deemed medically fit for discharge from hospital, the social work team told Alan that she would need a live-in carer to keep her safe. They gave Alan a list of approved care agencies. Celia did not have a mental capacity assessment or an assessment of her eligibility for social care support or NHS Continuing Healthcare.

Alan arranged a live-in carer, which cost £1,100 per week. Celia moved back to her home and was happy with the arrangement, but Alan was worried because Celia could only afford a few weeks’ care costs. He contacted social services who came to do a home visit to meet Celia. The social worker told Alan that Celia did not qualify for any help with her care costs because she owned her own home. They said she could get equity release to pay her care costs; or sell her home and use the sale proceeds to pay for a care home placement.

Alan felt that social services were not being honest with him about Celia’s right to social care support, but he was not sure how to challenge them. A solicitor who had helped him with property matters told him about martin searle solicitors.

What Martin Searle Solicitors did

Cate advised that when Celia was discharged from hospital, she should have received a care package that was fully funded under the mandatory Discharge to Assess (D2A) scheme. She explained that D2A funding came from a central government pot that was introduced at the start of the pandemic, specifically to assist people in Celia’s circumstances. The funding for Celia should have continued until both health and social services had completed their statutory assessments of Celia’s longer-term needs. The target for the needs assessments to be completed was within six weeks of Celia leaving hospital. However, if that target date was missed, then health and social services had a duty to continue funding until the assessments were completed.

Cate explained that what had happened in Celia’s case was unlawful. She should not be privately funding her care package, and the fact that she owned her own home was irrelevant: D2A funding is not means-tested. Cate advised Alan that he should not apply for equity release as Celia’s Attorney, and should challenge health and social services for being in breach of their duties to Celia.

Cate wrote to health and social services to point out how they had failed in their statutory duties to Celia by denying her D2A funding when she was discharged from hospital and by leaving it to Alan to make Celia’s care arrangements. She requested that health and / or social services started funding Celia’s care package pending the required needs assessments.

The result

Social services agreed to take over funding Celia’s care at home package while they investigated the complaint. They did not initially accept that they had done anything wrong by sending Celia home without a package of care and without any D2A funding.

When they investigated the complaint, health and social services accepted that they had made a series of mistakes in Celia’s case. They agreed to refund to Celia the money that she had paid privately for several months of the live-in carer’s costs. They also belatedly completed the statutory health and social care needs assessments. Celia and Alan were very happy with this outcome, as it allowed Celia to stay at home with live-in care, rather than move to a care home.

If you need expert advice regarding Community Care Law, our Health and Social Care solicitors team can help. Contact us today on 01273 609911, or email

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T: 01273 609 991

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