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Top Five Unlawful And Incorrect Funding And Care Commissioning Decisions in 2023

Community Care Law Team

While each client’s case is unique, there are often recurring themes. Our social care team at martin searle solicitors have noticed that clients are being given incorrect or incomplete information by health or social services. Unlawful and incorrect funding and care commissioning decisions must be challenged. Our job as specialist social care lawyers is to ask the right questions in order to hold the public bodies to account.

Here are our top 5 common mistakes / incorrect decisions in 2023:

5. The panel says no

One of our team was recently told by a Social Worker: “This decision is not at all about funding, but I cannot confirm the Local Authority (LA)’s position until the funding panel has approved it”.  Funding panels, also known as “resource” or “eligibility” panels, are routinely used to amend the Social Worker’s care planning recommendations. Clients are understandably puzzled that these major decisions about their lives are made at a “panel” meeting which they cannot attend.

The law is clear that the Personal Budget figure recorded in the person’s Care Plan must be sufficient to meet their identified eligible needs. We act for clients in challenging funding panel decisions and ensure that the care planning and funding process is lawful, based on the needs of the individual rather than the budgetary restraints set by a panel.

4. That level of care can’t be provided in the community

Receiving care at home, and not in a care home, is often the most important right for many of our clients and their families. But when they can no longer privately fund their care they become reliant on social care funding to meet their needs.  At this stage, they are often told that their care needs cannot be met at home, and a care home is the only option.  Blanket policy statements are common, such as “the LA will only provide a maximum of four calls a day at home”, “social services never fund night time care” or “24hr care at home is not available”

This is not correct and we routinely challenge such unlawful blanket policy statements to ensure that health and social services comply with their legal duties. This is always on the basis of the person’s individual needs.

3. There are no care providers to fulfil this package of care

It isn’t uncommon for health and social services to state that care at home cannot be commissioned because there are no available providers. LA brokerage teams have a limited list of providers who will work at LA funding rates, but there is still a shortage of social care workers across the country. However, there are other providers, not on the list, who have sufficient staff to provide packages of care at home which can be utilised.

In the run up to Christmas we have been approached by two care agencies with staff available to provide care at home. Where the LA usual rate paid for care at home is the only barrier to our client staying at home, we will challenge the LA to pay at a rate that meets our client’s needs. We also advise about Direct Payments, so that people have more control over their choice of care provider.

2. NHS Continuing Healthcare funding is only available for people at end of life

The threshold for eligibility for NHS Continuing Healthcare (CHC) funding is set high, demonstrated by the most recent NHS England statistics showing that only 33,200 adults in England are eligible for standard NHS CHC. A person’s potential eligibility should always be explored by health and social care professionals. They should not be pre-screening people out by refusing to complete the NHS CHC Checklist on the basis that “they won’t be found eligible” or stating that “funding is only given to people who are terminally ill”.

It is important that the NHS CHC assessment always takes place. This is so a person living in a care home registered to provide nursing can receive the NHS Funded Nursing Care payment if they are not eligible for NHS CHC.

Distinct from this, the NHS CHC Fast Track Pathway process should always be used for people who have a rapidly deteriorating condition who might be entering the terminal phase.

1. Backdated care home fees payable immediately

Newly appointed Panel Deputies may find their client has a long history of unpaid care home fees for the period when nobody was managing their financial affairs and social services were loan funding the care costs. Shortly after the Court makes the Deputy appointment, the LA send the Deputy a large care fee bill, stating it is payable immediately.  It is important to scrutinise and challenge where necessary.

We work alongside Deputies to establish the full history of their client’s care needs and whether the care costs claimed by the LA’s are lawfully owed. This includes advising whether the LA’s financial assessment is correct, including applicable property disregards, and whether any part of the care fee debt is unrecoverable due to the relevant limitation periods. In our Professional Deputy casework this year, our team has successfully challenged thousands of pounds of care costs wrongly claimed by Local Authorities.

The social care system remains under huge pressure, which makes it more important than ever that Deputies challenge unfair decisions so that their clients don’t miss out on essential social care funding and support.

For expert advice about care funding and commissioning decisions, contact our Community Care law team on 01273 609911, or email

Martin Searle Solicitors, 9 Marlborough Place, Brighton, BN1 1UB
T: 01273 609 991

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