Case Study: Obtaining Backdated Funding to Settle a Care Home Debt Claimed from the Executor of an Estate

Summary

How Clare English, Community Care lawyer based in our Brighton office, assisted an executor to secure backdated care fees of £14,000 to settle an alleged care fee debt.

The situation

Mary suffered from Alzheimer’s disease and lived in a nursing home in the Midlands where her care fees were paid by NHS Continuing Healthcare funding (NHS CHC). Four months before Mary passed away, the Clinical Commissioning Group (CCG) decided that she was no longer eligible for NHS CHC funding and the duty to meet Mary’s care and support needs passed to the Local Authority Social Services department.

Mary’s Attorney gave Social Services all of the information needed for the financial assessment, but the assessment had not been completed by the time Mary died. Mary’s executor, a solicitor, received a bill for £14,000 unpaid care home fees for the four month period.

Mary’s only asset was a small house in poor repair, which was occupied by her daughter, who had care needs. Mary’s daughter was concerned that she would become homeless if the house had to be sold to settle the alleged debt.

What Martin Searle Solicitors did

Clare English provided the executor with advice regarding the duties that Health and Social Services had owed to Mary in the last four months of her life.

Clare identified that the CCG had not written to Social Services or to Mary’s Attorney to say that they were withdrawing Mary’s NHS CHC funding. They had written to Mary at the nursing home, but she lacked mental capacity to understand care funding decisions.

Clare advised the executor that the CCG are legally required to ensure that alternative care funding arrangements are in place before withdrawing NHS CHC funding. A Social Worker had been at the NHS CHC review meeting but there had not been the necessary communication between Health and Social Services about establishing continuity of care for Mary after the meeting.

Clare also advised that Social Services had unreasonably delayed making a financial assessment to determine if Mary was entitled to means tested help with care home fees, after the Attorney submitted information for a financial assessment. Clare recommended that Health and Social Services should use their local dispute resolution process to determine which of them had a duty to pay towards Mary’s care home fees for the last four months of her life.

The result

Clare corresponded with Health and Social Services, setting out how each had failed in their duties to Mary under the National Framework Guidance for NHS CHC and under the Care Act. She reminded them that they are required to have a protocol for Interagency disagreement and dispute resolution.

Clare also made it clear to Social Services that they had to ignore the value of Mary’s house in any financial assessment for means tested social care. This is because it was the home of her disabled daughter and a property disregard applied.

Clare maintained pressure on both public bodies to resolve the dispute between them. Eventually the CCG agreed to pay the fees for the four month period, although it insisted that its decision that Mary was no longer eligible for NHS CHC funding was correct.

The CCG settled the debt owed to the care home and the executor was able to finalise Mary’s estate. Mary’s daughter was reassured that her home did not have to be sold to pay for her late mother’s care.

For expert advice on Paying for Care, contact our Community Care Law Team on 01273 609911, or email info@ms-solicitors.co.uk.