How our client recovered £70,000 in care home fees that his mother should not have paid and secured ongoing funded care for his mother, thanks to initial expert advice from Martin Searle Solicitors and just one letter.
In 2006, after a lengthy stay in a psychiatric hospital against her will, the medical team decided that Ivy, 66, had to move to an elderly mentally infirm (EMI) care home. Ivy had tried to escape from the hospital ward on several occasions. She wanted to go back to her own home but her psychiatrist said she would not be safe at home, even with carers.
The medical team said Ivy’s behavior and particularly her inability to understand that she was unwell meant she was a risk to herself and to other people. Ivy was very angry about the decision and refused to co-operate with the move.
Ivy’s son, Chris, had an Enduring Power of Attorney to act for his mother. He was told his mother had no choice about her care and that decisions were being made in her best interests. Ivy’s social worker had told Chris that he would have to sell her house because Ivy had too much capital for social services to help pay her care home fees. The fees were £30,000 a year. He sold her house in late 2006 to ensure she had enough money to pay for her care.
In early 2009, Chris became very worried because the money from the sale of his mother’s house was running out. The social worker had told him that when Ivy’s savings dropped to £23,000, she would get some help from the local authority to pay her fees, but that she would have to move to a less expensive care home.
She told Chris that if he did not want his mother moved, he would need to pay a top-up fee to the care home to make up the shortfall between the weekly cost and the maximum local authority weekly payment. The social worker said Chris would need to find about £85 a week to keep Ivy at the care home and he would need to sign a legal agreement to promise to pay this figure every week.
Chris was determined his mother should not move – she had become settled at the care home after three years and while she still had a lot of challenging behaviour and was not easy to look after, he knew moving her after so long would be psychologically damaging.
The problem was Chris did not earn enough to pay £85 a week from his own money after paying his mortgage and the living expenses for his own young family.
Chris did not know what to do. He saw a programme about paying for care and wondered if Ivy should get NHS continuing healthcare funding. He searched online and although he and his mother lived in Devon, he found Brighton based Martin Searle Solicitors and phoned for advice.
Care funding solicitor Cate Searle told Chris she could look at his mother’s eligibility for NHS continuing healthcare funding. However, after just a short initial telephone conversation, Cate believed the solution was much simpler. Cate said that she believed health and social services had made mistakes about their legal responsibility for funding Ivy’s care back in 2006 when Ivy was discharged from hospital.
Cate explained it was very likely that when Ivy was in the psychiatric hospital against her wishes, she had been detained under Section 3 of the Mental Health Act 1983. This meant Ivy was entitled to after care services free of charge under Section 117 of the Mental Health Act until such time as a relevant medical officer made a decision that she no longer required such services.
Cate advised Chris to use his Enduring Power of Attorney to find out if his mother had been held under Section 3 when she was in the hospital. This was confirmed relatively quickly.
Cate then wrote to health and social services setting out her arguments about what they had got wrong and reminding them of their legal responsibilities to Ivy to pay for her care – without charging her – under Section 117 of the Mental Health Act 1983.
Cate has recently resolved a similar case for another client. Mr W asked Cate to help with a retrospective claim for NHS Continuing Healthcare in respect of his late mother. Cate established that before Mrs W went into residential care her husband had died and she had been detained under section 3 of the Mental Health Act. As a result, all of her care should have been provided free of charge. The local council has now paid £135,000 to her estate, refunding her care home fees in full and also paying interest.
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