No need to pay care home costs

tomjonesrules

Debby_Potter wrote: »

I've just recently be released from hospital for my brain injury and get a social services support package but because I was in hospital I don't have to contribute anything towards care costs, where as if I was nursed at home it would off taken a large proportion of my benefits with me not meeting the criteria.

Debby_Potter wrote: »

I was in hospital too and they sectioned me because I was refusing treatment and because it was prolonged treatment to do with my head injury it was a section 3. So I don't have to pay for any of my care costs as well because they would be quite expensive and take all my my benefits same as you Debby..

Erm, you are Debby. If you're logging in under two different usernames, it's best to double check which one you are posting under!

Oldernotwiser

tomjonesrules wrote: »

Erm, you are Debby. If you're logging in under two different usernames, it's best to double check which one you are posting under!

Not just on here!

https://forums.moneysavingexpert.com/discussion/comment/49028741#Comment_49028741

Richie-from-the-Boro

Debby_Potter wrote: »

I've just recently be released from hospital for my brain injury and get a social services support package but because I was in hospital I don't have to contribute anything towards care costs, where as if I was nursed at home it would off taken a large proportion of my benefits with me not meeting the criteria.

Anit-edit DUP

Richie-from-the-Boro

Debby_Potter wrote: »

I was in hospital too and they sectioned me because I was refusing treatment and because it was prolonged treatment to do with my head injury it was a section 3. So I don't have to pay for any of my care costs as well because they would be quite expensive and take all my my benefits same as you Debby..

Anit-edit DUP

tomjonesrules

Debby_Potter wrote: »

My occupational therapist at the day centre I attend says I don't have to pay towards my care costs because I was in the hospital from a brain injury like Debby says the NHS cover the costs because it would be very expensive to meet the costs alone....

Yowzers! :T

baza52

Debby_Potter wrote: »

My occupational therapist at the day centre I attend says I don't have to pay towards my care costs because I was in the hospital from a brain injury like Debby says the NHS cover the costs because it would be very expensive to meet the costs alone....

aww diddums

ianua1

To avoid paying for long term care the NHS hand patients over to Social services who, under S21 of the National assistance Act, ostensibly provide them with accommodation and then charge them for all the continuing care they require. So let's take a closer look into this particular ploy: The Act says:

'21 Duty of local authorities to provide accommodation'

(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing]—

(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them . . .

Thus the SS can provide 'residential accommodation' for those who are in need of 'care and attention'- but NOT the actual 'care and attention' which they may require. The question has been clarified by case law:
In the High Court, Queens Bench Division, on 28th. July 1999, Mr. Justice Sullivan addressed the meaning of Section 21 of the National Assistance Act, and in his summation said "The duty under s21 of the National Assistance Act 1948 to provide accommodation for those in need of care and attention arose only where the accommodation was not otherwise available" (ie. NOT where the care and attention was 'not otherwise available')
In the Court of Appeal, case No. QBCOA99/0940/0941/0942/0943, on 27th. July 2000, Lord Justice Otton, on behalf of his colleagues said, "I now turn to consider the language and effect of section 21 of the 1948 Act: Sub-section 21 authorises the provision of accommodation to a person only where accommodation is not otherwise available to them. In the present case accommodation was (or is) available to the respondents by virtue of section 117. (MH Act). Thus on my interpretation, the section 21 (1) power does not arise"
When this case went to the House of Lords, (25th. July 2002), Lord Steyn for his colleagues, dismissed the Appeal by Local Authorities, having commented that the two previous rulings were "careful judgements"
In view of the forgoing judgements, social services departments clearly have no lawful role to play in meeting continuing health care needs unless they are also providing accommodation which is not otherwise available. Where there is a 'health need' (an illness or disability) this is the sole responsibility of the NHS - and County Council involvement is totally unlawful unless any care they provide is 'incidental and ancillary’ to the provision of the accommodation’ (Coughlan judgement)
The ‘National Framework’ At Annex B: The Coughlan judgment para 3. ii, says: (If the nursing services are) ‘of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide, they can be provided under section 21 of the National Assistance Act 1948’ But who is charged with doing the ‘expecting’? Nowhere does the Criteria define the 'nature of the services which a local authority can be expected to provide.’ So in the total absence of any such guidance from the DoH, Health Authorities themselves choose to formulate an 'expectation' to support their own agenda: 'to avoid paying whenever possible'.
In fact there is no irreconcilable problem: Local Authorities CANNOT be ‘expected’ to provide the sort of care services which the Appeal Court ruled in ‘Coughlan’ are the sole responsibility of the NHS. Miss Coughlan's care needs are in fact precisely what the NHS and Social Services choose to define as 'social and personal care' - which can thus ONLY be lawfully met by the NHS. In fact the ‘National Framework for Continuing Healthcare ’ (Annex B. para. 9.) concurs with the Appeal Court’s judgement: ‘In respect of Ms. Coughlan, her needs were of a scale beyond the scope of LA services’. Therefore where an assessment for continuing careand care records clearly show the needs of a patient to be fundamentally comparable with those of Miss. Coughlan, to deny NHS continuing care is a failure to heed and apply both the Coughlan judgment and the National Framework and to substitute a policy of blatant discrimination.
A ‘Health need’ is ‘an illness or disability’ and is NOT synonymous with ‘a need for health care’. Patients are entitled to continuing NHS care on the basis of their condition if this produces care needs which are equivalent to or in excess those of Miss. Pamela Coughlan whose total care the Court of Appeal ruled to be the sole responsibility of the NHS and thus ultra vires social services. (The Court also observed that ‘the NHS had attempted to re-define health care as social care’ – and they still are!)
Through the application of overtly-restrictive ‘criteria’ the Health Authority seek to deny patients the NHS continuing care funding to which they are entitled, both under the law (Health Act), Coughlan and their own guidelines. Viz: HSC 2001/17. page 31. ‘ Where an individual’s primary need is health care then the whole package of care must be paid for by the NHS.’ This is reiterated in their National Framework Annex B: para. 6 ‘Where a person’s primary need is a health need the responsibility is that of the NHS even when the individual has been placed in a home by a LA’
Miss Coughlan’s care was of course, specifically ruled to address ‘primarily health needs’ (her disability) and NOT ‘primarily social needs’. Thus Lord Woolf's words "Here the needs of Miss Coughlan and her fellow occupants (of Mardon House, Exeter) were primarily health needs for which the Health Authority is as a matter of law responsible" confirm unequivocally that the care Miss Coughlan receives is in the eyes of the law 'primarily health care' and NOT so-called 'social' or 'personal' care. This is reiterated in the National Framework viz: Annex B, para 6. ‘Where a person’s primary need is a health need, (an illness or disability) the responsibility is that of the NHS...’ thus confirming that it is the patients condition which determines eligibility for NHS funded care and not any care or treatment which may be provided. In ‘Coughlan’ the Appeal Court ruled: ‘The Health Act is the Dominant Act’
To refuse to endorse an identical decision for all patients whose scale of illness or disability (their health need) is such that they require continuing nursing care, amounts to blatant and unlawful discrimination by Health Authorities. Eligibility criteria which the Health Authority use to justify referring a patient to Social Services for funding is being incorrectly and restrictively applied: The concept of ‘Intensity’ ‘Complexity’ ‘Unpredictability’ and ‘Registered nursing care’ as demonstrating a ‘primary health need’ is pure humbug! Nothing like this is mentioned in ‘Coughlan’ because nothing like it applies to Miss. Coughlan. Miss Coughlan has confirmed that she would not meet the eligibility criteria for NHS continuing care, thus as the appeal Court cannot be wrong the criteria must be.
Where a patients so-called 'social and personal' care needs arise as a direct consequence of a medical condition, as with Miss. Coughlan, clearly the primary need is a 'health need' - for which the NHS is as a matter of law responsible” (Lord Woolf in ‘Coughlan) This view is totally vindicated in that should the underlying medical condition suddenly disappear then any need for so-called 'Social care' would cease. By definition there can be only ONE 'primary need' which in this case is obviously a 'health need' and all other needs are obviously secondary to it.
The situation is clearly summarised by the Law Society in their Evidence to the House of Commons Select Health Committee Inquiry into NHS Continuing Care. "The judgment in Coughlan clearly establishes that where a person's primary need is for health care, and that is why they are placed in nursing home accommodation, the NHS is responsible for the full cost of the package."
Consequently Social Services cannot be involved in any review panel (which in fact breaches Art.6 of the Human Rights Act) until it is proved that an illness or disability - a health need' - is NOT present. If it is then the NHS are solely responsible for ALL care, which includes ALL so-called social and personal care. Local Authorities therefore have no role to play because it’s none of their business!
Whether or not a 'health need' is evident can only be lawfully determined by clinicians - NOT social workers. The question of funding cannot be determined by an NHS quasi-judicial panel because that is a matter of law, not medical opinion. Unless and until it is determined that the patient does NOT have an illness or disability (health need) social services cannot be involved in any way and their involvement is just a ploy to enable the NHS to refuse funding. Moreover neither the NHS nor social services can impose their view that a patient is 'self funding' because the family have the right to appeal that decision under statutory and local resolution procedures. Social services cannot pre-empt the decision of (albeit unlawful) review panels, the Ombudsman, or a court of law.

As shown above, patient care which is more than incidental and ancillary to the provision of accommodation cannot lawfully be provided by social services. But Social Services then try to justify their provision of health care by claiming that their care "is of a nature which it can be expected that an authority whose primary responsibility is to provide social services, can be expected to provide" This has been shown to be utter humbug!
Furthermore SS directors and their staff are guilty of misfeasance in public office in that they have no lawful authority to spend council taxpayer's money on supporting patients who are not their responsibility. This issue arose in 'Coughlan' where Lord Woolf ruled "However eligibility criteria cannot place a responsibility on the local authority which goes beyond the terms of section 21" Thus any care which is more than 'incidental or ancillary to the accommodation' is always 'beyond the terms of section 21' It is abundantly clear that social services departments are deliberately applying unlawful criteria. The question is to first ask if the SS are lawfully providing accommodation which is not otherwise available If they are not, then any question of supplying nursing care incidental or ancillary to it cannot arise. Where there is a health need under the Health Act, the entire responsibility falls upon the NHS - and is no business of social services. ie. they cannot provide anything because they are 'ultra vires' in meeting continuing health care needs and Council linvolvement is thus totally unlawful.

kurgon

I do like how you quote very limited laws and judgements in support of your case.....still, it's probably better to not go into the rest of it as it starts to destabalise your arguement.