How Andy McKay, expert Community Care Law solicitor based in our Brighton office, enabled an elderly woman to remain in her own home rather than being forced into residential care. He did this by securing increased Local Authority care funding worth more than £300 per week, plus a backdated payment of over £17,500 by challenging Social Services’ unlawful financial assessment.
Jasmine is Attorney under a Lasting Power of Attorney (LPA) for both Property & Finance and Health & Welfare for her mother, Margaret. Margaret has complex health needs and requires 24-hour care and supervision, but has continued to enjoy a good level of independence by remaining in her own home. She stayed in a respite care home on two occasions, but found this very distressing. The family agreed that Margaret needed to be cared for at her home in the North East of England.
Jasmine employed a qualified and skilled live in carer and Margaret self-funded the live-in care costs for many months. When Margaret’s savings dropped to the Local Authority savings threshold of £23,250, Jasmine asked Social Services to help pay Margaret’s live-in care fees under the means tested social care funding rules.
When Social Services assessed Margaret’s care and support needs, they agreed that she required 24-hour care. They “capped” Margaret’s personal budget to the rate that they would pay for a care home. This was £300 per week less than the actual cost of paying for care at home. Social Services said that Margaret’s would either have to move to a care home or the family would have to pay a “third-party top-up” of over £300 per week to allow Margaret to stay at home.
The family could not afford the top up in the long term but did not want Margaret to be moved to a care home. Jasmine contacted Martin Searle Solicitors for help.
Andy wrote to Social Services setting out that Margaret had a need to remain at home and this was not merely a preference. Andy asked them for copies of their mental capacity assessment and care and support assessments so that he could analyse the basis of their funding decision. Everyone agreed that Margaret did not have mental capacity to decide where she should live and be cared for.
Jasmine and her co-Attorney were the decision-makers under Margaret’s LPA for Health and Welfare.
Social Services continued to argue that their capped offer of funding was lawful. Andy disputed this, reminding them that the Care and Support Statutory Guidance makes it clear that it is unlawful for Local Authorities to impose arbitrary cost ceilings for care at home packages. Andy explained that this meant Social Services had a duty to cover the full cost of Margaret’s care at home, subject to her income contribution, and that charging a top up would be unlawful.
Andy also referred to a previously decided Local Government and Social Care Ombudsman decision and to medical evidence to support his argument.
The Best Interests meeting set out the available options for Margaret’s future care. These included going into permanent residential care or remaining at home with a live-in carer. The best interests report stated that 24-hour care at home was that it would be ‘expensive’.
Andy challenged their refusal on financial grounds and Social Services conceded on Andy’s arguments and agreed to fund the 24-hour home care package in full.
Social Services also agreed to backdate the increased funding offer to the date that they had assessed Margaret’s needs.
As a result of Andy successfully challenging the inadequate and unlawful funding offer put forward by Social Services, Margaret is able to continue to live at home, with her familiar carer. Social Services also apologised and accepted that the best interest decision making process should not be conflated with financial considerations.
The family are delighted that Margaret has not had to move to a care home and they can now focus on supporting their mother rather than being stuck in a dispute with Social Services.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2024