absence from home

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  • #285157
    kmcin
    Participant

    Customer went into care April 2021 and we have withdrawn HB/CTS from when a decision was made that he would be permanent.

    Customer objected to the permanent decision with the care home and being ‘held’ against his will and the court of protection became involved. Due to backlog of cases it was not heard until May 2023 but when it was heard the CoP agreed that it was in his best interest to keep him in care.

    However, whilst the case was heard he always intended to return home. Couple of things:

    1. Do we treat as still residing until cop decision May 2023?
    2. Can we allow 52 weeks after he was admitted?…or
    3. Must we stick with the original decision to cancel from his ‘permanent’ date as this was upheld by the Cop despite the delay?

    We found this all out after the fact so there is a substantial overpayment. 3 seems unfair but legally correct?

    thanks

    #285158
    andyrichards
    Participant

    I believe that it has been pretty well established that an “intention” cannot exist if it is incapable of being fulfilled, whatever the personal wishes of the claimant. Whilst not being aware of the specific details I would say if he had an intention which only became impossible when the CoP made its ruling, then it was a valid “intention” until that point. I know these situations can be difficult if the person continues to hope that they are going home, when objective reality is that they aren’t.

    #285160
    kmcin
    Participant

    I thought the same thing and we could treat him as having the intention until he was told otherwise but wasn’t sure if legally the decision made referred to the original date of decision and that he was permanent from that date not the COP decision? Think it is unfair on the customer otherwise?

    #285162
    Peter Barker
    Keymaster

    Until the court endorsed the Deprivation of Liberty, there was nothing more than the opinion of those caring for him. It carries some weight, but he seems to have been sufficiently lucid to have his own strong counter-opinion. No-one had any legal right to impose a decision on him until they got the court order.

    You could say the opinion of doctors, social workers etc turned out to be quite right and there was never any realistic intention of returning home … but given the time lag between the beginning of the absence and the court order you could perhaps infer that nothing was certain for at least the first 52 weeks.

    #285163
    kmcin
    Participant

    Could we go as far as the COP decision which was over the 52 weeks? I know the legislation is 52 weeks but it was beyond his control?

    #285164
    Peter Barker
    Keymaster

    No, there is a pretty solid and insurmountable wall of case law about 52 weeks being the absolute maximum period HB can continue for no matter how compelling the circumstances might be.

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