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Court of Protection

Welcome to our Court of Protection blog featuring updates, guidance and news from the Wrigleys team.

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Austin Thornton

Email: austin.thornton@wrigleys.co.uk

Telephone: 0114 267 5588

Position: Solicitor

New Review! : ‘Paying for Residential Care: A Guide for Private Client Practitioners’. Reviewer: Karon Walton, Chief Legal Officer, SFE

This is the third edition of Austin Thornton’s publication on Paying for Residential Care. More than ever, due to the continuing care funding crises, practitioners are being regularly contacted by clients for advice on paying for care for themselves or their loved ones.  Austin has been a solicitor for nearly 23 years and has worked in welfare law, personal injury and then moved into community care and Court of Protection law.  His experience in dealing with statutory services and resolving disputes over the provision of care flows through the book and the reviewer liked the personal experiences noted throughout.  At 570 pages, it provides a detailed consideration of the law and practices around The Care Act 2014, residential care, social services, NHS continuing health care, assessments and disputes.

Chapter one starts with what residential care provision is under The Care Act 2014 and the duty of the Local Authority to promote an individual’s wellbeing. Moving through the chapter, it explains social care assessments, how social services looks at eligibility for care and financial assessments. It also includes references to assessments for self-funders, care contracts and top up fees.

Chapter two focuses on protecting the home, which has always been a very emotive issue for clients and their families, with the potential loss of the family home when a person goes into care. The author looks at the government’s response to these concerns, the continuing funding issues around care which have not been solved.  The chapter then looks in detail at the treatment of property, at the disregards and deferred payment arrangements under The Care Act 2014.

Chapters three to seven look at the important issue of local authority financial assessments and the treatment of capital and income. These chapters cover these areas in detail and the reviewer liked the flow diagrams and the highlighted boxes and text, which makes for clear and easy reading and understanding of the relevant sections and law.

Chapter eight moves into deprivation of income and capital.   It details the legal complexities around false statements and purposeful anti-avoidance of income and capital; and how tribunals look at the tests of intent, purpose and reasonableness, which include reference to case decisions.  Chapter nine then looks at valuations around assessable capital which should have been considered and added into the means tested assessment.

In Chapter 10, the author looks at avoidance of care fees through the making gifts and the creation of Trusts, how a practitioner should approach this tricky area of advising clients and the risks that they themselves could fall into in a situation of aiding a client’s deliberate deprivation of assets. The reviewer really liked the practical tips and case studies in this chapter, which give a practitioner instruction as to how approach these cases.

The final chapters finish with remedies and challenges to decisions and the powers that the local authorities have regarding enforcement and recovery.

The reviewer really like the book and felt it was an essential read for anyone working with older clients and their families. With the continuing restraints on the statutory authority’s finances and cut backs, the reviewer has concerns that assessments will be completed incorrectly, and it is imperative that practitioners and professionals really understand this area of law and this book provides a detailed, comprehensive and invaluable resource.

12 Dec 2018

Enfranchisement reform - implications for community-led housing

We look at the impact of proposed changes to enfranchisement law – community-led housing (CLH) groups should respond before 7 January 2019.

30 Nov 2018

Will a refusal to offer a trial period make a redundancy dismissal unfair?

Yes, the refusal of a contractual right to a four week trial period in an alternative role is very likely to lead to an unfair dismissal (EAT).

30 Nov 2018

Can an employee be dismissed for incapability if their contract provides long-term disability benefits?

Incapability dismissal may be unfair and discriminatory if employee is contractually entitled to income when incapacitated by permanent disability.