Judge dismisses ‘unaffordable’ care package case

Court of Protection ends proceedings after determining man has capacity to make decisions about his care

Photo: tashatuvango/fotolia

A Court of Protection judge has dismissed a case where a local authority was “unable and unwilling” to fund a 24-hour care package required to bring a man with severe injuries home from hospital.

Justice Holman ended proceedings in the case of a local authority and X after declaring the 32-year-old man had the capacity to make decisions about his care and where to live. The decision was based on expert evidence submitted from two psychiatrists.

The man sustained severe injuries after falling from a roof in 2011. He has been cared for in a specialist hospital unit since December 2015, following a breakdown of his care package. Last month, the court heard that the local authority could not support the man to return home because the resulting rise in care costs would be “unsustainable in the long-term”.

The man requires 24-hour support and the move would see the cost of his care package increase from £3,000 per week to just under £9,000 per week. The council said this level of funding represented approximately 1.5% of its annual budget for adult social care.

At the time Justice Holman expressed concern about holding further hearings because even if the man was deemed to have capacity, there would be “little room for capacitous choice” due to the limited options available to him.

The council was however asked to send a letter outlining what packages of care, if any, it would commission if he had capacity to decide to return home and chose to do so.

‘Lucidity and rationality’

At a hearing last week, Justice Holman concluded that the man had capacity to make decisions about his care. He said the local authority had written to him explaining that two24-hour care package options had been identified, one costing just under £500,000 a year and the other costing £338,000 a year, but both had been deemed unaffordable for the council.

The council concluded they would not be willing to fund less expensive care packages that would involve a single carer looking after the man due to the severity of his needs and the potential risks involved.

The judge dismissed the local authority’s submission that the man lacked capacity and that the opinions of the two psychiatrists should be cross-examined at a later hearing.

“The clear opinion of these two consultant psychiatrists, both of whom have now known this patient over a period of time, is to the effect that he does have capacity with regard to his residence and care,” Justice Holman said in the judgement.

He also pointed to a submission from the man’s solicitor, which suggested the man was “clearly able to express lucidity and rationality”.

“In these circumstances, it does seem to me that the evidence is currently all one way,” he said.

“It is to the effect that a patient, who was previously considered to lack capacity, does now have capacity… It is true that the written evidence of the two psychiatrists has not been “tested” by cross-examination by or on behalf of the local authority but, as I have said, they do not have any positive evidence to the contrary.”

‘Longstanding funding dispute’

The court also heard that the local authority had applied to withdraw from proceedings following the recent decision of an Independent Local Resolution Panel.

The panel had considered a “longstanding dispute” over whether the care needs of the man should be funded by the council or by the local Clinical Commissioning Group. It concluded that the man was eligible for NHS Continuing Healthcare funding.

Justice Holman did not grant the local authority permission to withdraw from the proceedings on the basis they had “already ceased to exist” due to the ruling on the man’s capacity.


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4 Responses to Judge dismisses ‘unaffordable’ care package case

  1. Finola Moss November 29, 2016 at 6:47 pm #

    The average cost of keeping a Learning Disabled/autistic in the misnamed community/ independent, living away from parental home living, is over £4,000 per week. Far more if condition deemed severe .

    Yet, the only adult support now at 18 for life, is in such places, which can only be described as institutions serviced by mainly itinerant . zero hours care workers.

    Read about law and examples by googling finolamoss blog

    So that the maximum profit can be made for their often venture capital, monopoly commissioned by LA/HSCT commissioned care provider owners.

    At 18, all these vulnerable young people, are being removed against theirs and their parents wishes, to such enforced residential accommodation, on being declared ‘incapable’ of making any decision for life under the Mental Capacity Act by the Court of Protection in secret and gagged for life. Parents often cut out from visits.

    The LA policy now, is not to provide adult care at home, and if this is sued for under the HRA s8 Right to Family, LA will say RESIDENTIAL CARE, is the only care that is available and is a proportional interference.

  2. Robin Owen November 30, 2016 at 1:19 pm #

    Our LA pay £13.91 per hour with £75 payment for overnight care. 13.91x16x7x2carers=3115.84 +7×75=525 total £3640.84. £13.91 gives less than 4% profit margin = £145.63 per week profit.


    Unless every care provider is run by a philanthropist, the whole system is going to collapse and pretty soon.

    You probably pay in excess of £50 per hour to get your car serviced by an apprentice earning £5.55 per hour.

  3. Anita Singh November 30, 2016 at 3:13 pm #

    The problem is when you introduce PROFIT in social care services. I do not recall local authorities riding roughshod over human rights, the rights to choice, inclusion of wider family members and creating care packages that were right for the individual when it was under LA control. Yes LAs always had to balance the books, but had far more control when they were employing the workers directly. Prior to the outsourcing of adult social care services, the average Home Carer earned a living wage (not as many contractors pay now, which is far less than the figure of £13.91 quoted above. Home Carers were given sufficient time to meet their clients needs and not rationed to ridiculous time frames, with no travelling allowed in between and their costs for travel paid at very low levels (definitely not 45pence a mile that most other professionals get). On the other hand, when the NHS has been paying, in my experience private care agencies then argue for providing two workers where one would have been more than enough. However, the service received is abysmal. Agencies can use the opportunity to make a fat profit out of the NHS for doing next to nothing. They refuse to do most things on the grounds of health and safety, send two carers where only one is needed and spend most of their time justifying why they could not do something. An absolute disgraceful waste of money and at the end of it, family members end up doing most things that they had refused. LAs and to some extent NHS set about defending the private contractors they have commissioned and usually do not want to admit when the service is poor and families then find themselves pushed out and suddenly the matter of the mental capacity of the individual becomes the issue.

    Please do not compare getting the car serviced to the care of a vulnerable or seriously ill adult, as they are incomparable.

  4. Marycom November 30, 2016 at 5:43 pm #

    It is incredibly sad that this gentleman having experienced devastating injuries can not depend on his local authority to treat him with respect and kindness denial of capacity is a shameful way to go.
    I am disgusted that the only value placed on this is how much it will cost the local authority to attempt to give this gentleman quality of life and no value is placed on this gentlemans right to a family life. why should he be forced to remain institutionalised because it is considered a cheaper option – surely not. People forget there for the grace of god……