Care Home Fees Local Authority Contribution

combestrocket

My mother is suffering from dementia and the time is approaching when she will need to go into a care home for her own safety. I am beginning to look around at costs and facilities and believe she will qualify for the maximum local authority contribution. What I am finding some problem establishing is whether the quoted care home contributions from local authorities include or exclude her income. For example if a local authority states that its maximum care home price is £400 and my mother has £150 a week income should I be looking for homes charging £400 or could I go up to £550?

trevs707

Hi combestrocket.

Really sorry to hear about your mum, and believe me I know how you and your family are feeling right now.

In theory your mother shouldn’t pay anything. I know you will raise your eyebrows at that statement but it has been proven in law. You are like the millions of people out there that believe in what the Local Authorities and NHS tell you, and why shouldn’t you. They must know what they are doing right? WRONG.

Have a look at the two links below to get an outline of why she shouldn’t be paying. The NHS will tell you that your mother must go into a care home to meet her “Social Needs”. This is rubbish, she is going in there because she has “Health Needs” and all health needs MUST be fully funded by the NHS that’s the LAW. The accommodation she resides in is only a secondary need, the primary need is one of health. It is a great shame that more people aren’t aware of the law in the case of Continuing Healthcare and fight their corner.

Enough of my ranting as there is far better and succinct information in the links below. The first thing you need to do is to get your Primary Care Trust to perform a “Continuing Healthcare Assessment” on the basis that your mother has a medical condition that is deteriorating. The process is prescribed by the Department of Health in public documents and you can download them if you wish to understand what happens. It is a bit of a post code lottery but you may live in an area where the PCT are willing to confirm your mother as eligible for Continuing Healthcare. If the PCT state that she is not eligible you will need to fight them for your/her rights under law. There is a great deal of information in the links below to help you.

Remember, qualifying for Continuing Healthcare makes the NHS responsible for 100% funding of her care including the care home costs.

Have a look at the links below;

http://www.continuingcarecampaign.info

http://www.gpss.force9.co.uk/nhscare/

combestrocket

Thanks for the good advice. I will start to compile evidence for a health assessment which looks to be the more appropriate route to take at this stage in my mums condition.

kittycatty

Am in the same postition, my Mother is in care due to alzheimer's, she was moved as she wasn't safe to remain in her own home, I am fighting the NHS for continuing health costs as the only reason she's there is the alzheimer's.

Katykat

Hi, my story is the same but at at different stage. My mum went into care 4 yrs ago, same problems. For the first 18 months I was paying the fees out of mums savings. I had to sell her house to continue when her savings ran out. I was totally duped into the same way of thinking, ie, Social Services told me that dementia was a social condition, not a health condition. When I found out about Continuing Health Care, I requested an assessment from the PCT ( NHS). She was turned down. So then I began the fight. I wish I could say it was easy but it wasn't. I ended up with reams and reams of documents, spent hundreds of hours researching, attending meetings etc, all the time having to deal with watching mum slowly deteriorate. Eventually, after 2 1/2 yrs ( and unfortunately AFTER mum had died) I " won". The PCT repaid all the care fees plus interest. The system is designed to thwart you at every single step. The most stupid thing is that it must have cost the PCT much more in fighting me than it would have cost had they taken responsibility in the first place. It is every citizens basic right to receive health care ALL of their lives, but my advice to you is make sure you have the determination and strength of character before you start this difficult fight. I'm glad I did it now, but there were times when I was ready to throw in the towel. Good luck

ianua1

NHS Continuing Care is a concept phase brought in to try and circumvent the Health Act. Every British citizen with a health need is entitled to 'Free care at the point of delivery.' The Appeal's Court Coughlan Judegement states that The Local Authority can not become involved if the person's health needs are above 'Ancilliary and Incidental', and when the person with the health need has accomodation available to them, not at all.

ianua1

This is the procedure for the 'Neaest Relative' (Next of Kin) who is worried about a loved one mental health.


If you don't already have Lasting Power of Attorney, then as a matter of great urgency obtain it. If it's too late since your loved one has already been diagnosed as not being mentaly capable you'll probably have to go to the Court of Protection, but make sure they have written a Living Will / Advance Decision first. Contact the Public Guradian's office for LPA or to apply to the COP. You don't need a solicitor to do this for you. There are firms who will do everything for around £50 - not the £1000 which solicitors charge! Most people with Alzheimer's Disease and other similar illnesses are brought into an acute unit 'Informally' under Section 131 of the Mental Health Act 1983. It's the NHS's way of getting out of 'Sectioning' under Section 2, 3 or 4 which as I understand it would automatically mean the patients are entitled to Continuing Care funded by the NHS.

On admission to a NHS hospital or acute unit, the Primary CareTrust / Local Health Board in Wales, MUST carry out a 'multidisciplinary review' of a patient's care needs AND an assessment for NHS continuing care. - remind them that you are entitled to attend their review panel, submit evidence and receive a written copy of their report. Do NOT agree to or sign ANYTHING - and DO NOT submit to any sort of 'means test' or have anything to do with social services. If you divulge financial details to anyone (including details of property ownership) you will be in breach of the data protection act (duty of confidentiality) If they try to move your relative into a care home tell them that you require everything to be 'put in writing so I can take legal advice' They CANNOT enforce the sale of a patient's home to meet care costs during the owner's lifetime. DO NOT sign a 'deferred payment agreement'. A whole chain of local resolution and statutory procedures must be exhausted before continuing care needs can be determined and they most certainly cannot 'deem' that anyone must fund their own care - which is a matter of law, NOT medical opinion. Tell the SS, "I refuse to provide any information which I believe will be used for an unlawful purpose. I am entitled to pursue this line of argument under Wandsworth v Winder, House of Lords 29th Nov, 1984 "

Under the provisions of the '1946 National Health Service Act', every resident British citizen having a 'health need' - an illness or disability - is entitled to receive NHS funded care 'free at the point of need'. This was supported by the 'Couglan' judgement - a definitive Appeal Court case which obviously had to fully accord with The 1946 National Health Service Act which established the NHS on 5th. July 1948.

Nowhere in the Act is there any mention that 'Eligibility Criteria' may be used to determine who should or should not be entitled to receive free care. In fact the Act specifically states: 'The services so provided shall be free of charge' 'NHS in England' confirm that this hasn't changed and the Act has not been repealed. Although modified by later acts the core principles remain intact: The NHS says they hold" a continuing commitment to the founding principles of the NHS which can be summed up as: The provision of quality care that:Meets the needs of everyone Is free at the point of need And is based on a patient's clinical need not their ability to pay" . Under the Health Acts ALL those with an illness or disability ('health need'), qualify for NHS care 'free at the point of need'. Note though, that a 'health need' is NOT the same as a 'need for health care'.* The former is the only qualification needed for entitlement under the Health Acts to NHS care 'free at the point of need' . Obviously all patients have a 'health need'. otherwise they wouldn't be 'patients' but they do not necessarily require or receive any 'health care' or treatment - Pam Coughlan and other tetraplegics and many cancer patients for example. It is the patients condition not the nursing care a patient requires or receives, nor who provides it, nor the setting in which it is provided, that is paramount and triggers their entitlement to free care. (*despite what the NHS and SS say!) The Act does NOT permit the imposition of ANY 'eligibility criteria' to determine who should or should not receive NHS funded care: It is the fundamental right of every British citizen. But the NHS and SS try to claim that only those whose 'primary need is a health need' are entitled to free NHS care.
But ' primary need' is not mentioned anywhere in the health act, which refers only to a 'health need'. 'Primary' was substituted for 'Primarily' by the DoH in their circulars as Lord Woolf said in 'Coughlan "Here the needs of Miss Coughlan and her fellow occupants were primarily health needs for which the Health Authority is as a matter of law responsible." This was simply an interpretation of Section 21 of the National Assistance Act, 1948. which, on its strict wording, empowers Social Services to provide and means test accommodation (but only when this is not otherwise available) but NOT care. As a result Mr Justice Hidden (High Court in Coughlan) not only found in favour of Pam Coughlan, Ross Bentley and others, but commented in 'obiter dicta' that Social Services could not provide or means test any care at all. The Court of Appeal upheld the ruling but modified the obiter dicta to rule that Social Services could provide and means test only 'care which was incidental and ancillary to the accommodation'. To clarify this Lord Woolf added " . . . the needs of Miss Coughlan . . etc." ( under the Health Acts)

Particularly note that the provision of health care is no business of social services
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 accomodation 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 section117. 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 have no role to play in meeting continuing health care needs unless they are also providing accommodation which is not otherwise available. This is the sole responsibility of the NHS where there is a 'health need' - and County Council involvement is totally unlawful. 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. Doubtless they rely upon and apply 'Eligibility Criteria' produced by the relevant Strategic Health Authority, which is obviously unlawful for the reasons stated above.

Those threatened and harassed by social services should demand to be told 'when the SHA criteria was considered by the full council and if and when it was formally adopted and it's approval minuted'. If it was simply passed on a 'wink and a nod' then the whole council is guilty of 'misfeasance in public office' and through adopting unlawful 'eligibility criteria' are party to a conspiracy to defraud.
Social Services have no role to play in continuing care provision and their involvement is premature until evidence acceptable to a court of law, is produced to show that under the Health Act a 'health need' does not exist. At any review panel the SS must withdraw as they cannot be involved unless and until it is lawfully determined that funding is not the responsibility of the NHS. This question cannot be decided by a quasi-judicial panel of clinicians and administrators as it is a question of law - not medical opinion. Patients cannot simply be handed over to social services for funding under the National Assistance Act unless this is incidental and ancillary to the provision of accommodation which is not otherwise available to them. Accommodation in a care home is a consequence of the need for nursing care, just as it is in a hospital, but the SS try to claim that this is a 'primary need' - which is absolute nonsence! The National Health Services Act 1946 does not permit the imposition of any 'criteria' to determine who should or should not receive NHS funded care.
'Clinical need - NOT ability to pay.' Clearly this core principle of the NHS Act does not permit charges to be levied for continuing care services and those who do in fact have the 'ability to pay' very specifically cannot be forced to pay under the act - which says precisely that! By 'handing over' patients to social services, the NHS attempt to circumvent and frustrate this basic principle of the Act and are thus 'ultra vires' as also are social services who do not have any authority to charge patients for care which they cannot lawfully provide under the national assistance act. All 'care' is 'nursing care' The Appeal Court ruled in 'Coughlan' that, (although Miss Coughlan's accommodation was provided for her by the NHS, not social services) social services could not lawfully provide any of her care because it would have been more than 'incidental or ancillary' to the provision of her accommodation. Thus Lord Woolf's words "Here the needs of Miss Coughlan and her fellow occupants were primarily health needs for which the Health Authority is as a matter of law responsible" confirm that all the care Miss Coughlan receives is in the eyes of the law 'primarily health care' and NOT so-called 'social' or 'personal' care. So what Social Services choose to call 'social care' has no foundation in law but they - social services - said that was the only care that Miss Coughlan required! Thus 'health care' encompasses all so-called 'social care' which is thus the sole responsibility of the NHS. That's what the Appeal Court ruled and that's why all those 'assessed' as requiring 'only' so-called 'social care' are entitled to free NHS care to meet ALL their needs - and are entitled to refuse to pay for it under the '1946 National Health Service Act' and the Apeal Court's 'Coughlan' judgement.

Refuse to Pay. In view of the forgoing, anyone coerced into paying for continuing care can refuse to pay and should challenge social services to sue if they think they have a lawful claim. Whatever pressure NHS and SS managers apply or whatever 'contract' they dupe people into signing, their threats to sue are just 'bully-boy' tactics - because they dare not! They would lose - and they know it! Before any court of law, 'eligibility criteria' 'DoH guidance' and 'Policy' would be deemed irrelevant because any judge would be legally bound to apply the provisions of the Health Act and hence the 'Coughlan' judgement, as that was the ruling of the Appeal Court which takes precedence over all lower courts and cannot be ignored! Thus any 'continuing care' case must be heard against that judgement and it follows that anybody with 'health needs' comparable to, or exceeding those of Miss. Coughlan, must be automatically entitled to 100% NHS funded care.

Coughlan: The 'Coughlan' judgement was not based on what the NHS must do, because that is well defined by the health act, but on what Social Services cannot do - because it is 'ultra vires' council social services departments. They have no role to play as they cannot lawfully fund patients under the national assistance act who are not their responsibility. In 'Coughlan' the Appeal Court ruled that social services can only purchase nursing services 'incidental and ancillary' to the provision of accomodation - which applies only when accommodation is 'not otherwise available'. Clearly when a patient already has a home of his/her own then the only reason for placement in a nursing home is because they have a 'health need' (an illness or disability) Social services then try to claim that because patients require institutional accommodation (in a care home) to enable their health needs to be met, then their primary need is for accommodation - not a 'health need'. This is of course complete humbug! The need for accommodation arises only as a consequence of a health need, and thus cannot be their 'primary need'. The fundamental point is that patient care which is more than incidental and ancillary to the provision of accommodation cannot lawfully be provided by social services.

In 'Coughlan'. 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 would be 'ultra vires' and have no role to play in meeting continuing health care needs and Council involvement is thus totally unlawful. 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 for whom they have no statutory responsibility. Doubtless they rely upon and apply 'Eligibility Criteria' produced by the relevant Strategic Health Authority, which is obviously unlawful for the reasons stated above. Those threatened and harassed by social services should demand to be told 'when the SHA criteria was considered by the full council and if and when it was formally adopted and it's approval minuted'. If it was simply passed on a 'wink and a nod' then the whole council is guilty of 'misfeasance in public office' and through adopting unlawful 'eligibility criteria' are party to a conspiracy to defraud.
'Eligibility criteria fatally flawed: All their - albeit unlawful - 'criteria' state that when "a person’s overall health needs are so great, the NHS will manage and pay for all the care they need" In fact the test of 'great need' - along with 'complexity, unstable, requiring interventions by specialist staff . . . etc'. does not accord with the Health Act and does not apply to the vast majority of NHS patients - yet all their care is provided free of charge! Thus denial of NHS funding for continuing care patients is discriminatory and unlawful, because only long term, mainly care home patients are forced to pay for their care simply because they do not have the 'great needs' required by NHS 'criteria' to qualify for free NHS care!. No other NHS patients are subjected to such criteria. As always, the NHS are guilty of muddled thinking, as the logical path would to be to charge those who do in fact have 'great needs' and thus place extensive demands on NHS services - not those who don't - but who just happen to be old, frail and vulnerable. It should also be noted that Miss Pam Coughlan would not meet any of their 'eligibility criteria' - yet the Appeal Court ruled that the NHS must pay for ALL her care, so the criteria must be wrong and thus unlawful - because the Appeal Court cannot be! Any judge hearing a claim by social services for care fee payment would have no option but to apply the Health Act and hence 'Coughlan' and all 'criteria' DoH guidelines and policy - and social services interference - would be ruled imaterial and such a claim would inevitably fail.

Finally, it is a long accepted principle of law that 'ignorance of the law is no excuse'. It is thus incumbent upon Council social services and NHS officials to ensure that they are acting within the law - otherwise they could be held personally liable for damages and losses resulting through their unlawful decisions and actions. This would include restitution for losses resulting from the enforced sale of property to meet unlawful demands for payment of care fees".

PM me for further information.

ianua1

For those worried that loved ones who are having a CHC assesment won't be eligible, when the time comes, respond to the NHS with the following,

"We will not accept rejection of our claim for continuing care which is based on 'eligibility criteria which is not 'Coughlan Compliant' and we hereby give you notice that we intend to appeal to the Ombudsman upon further rejection. We will also seek legal advice on serving your authority with a mandatory order to comply with their statutory duty under the National Health Servce Act and the Appeal Court's 'Coughlan' Judgement. We will also seek redress under the Article 6. of the Human Rights Act."

And remember.....

Clinicians cannot make quasi-judicial decisions because the right to care is a matter of law - not medical opinion and any 'nurse assessor' making such a decision would be in breach of Article 6 of the Human Rights Act and open to prosecution and liable for exemplary damages.

ianua1

http://freenursingcare.findtalk.biz/

Katykat

I agree with all you say Ianua1. In fact the Freenursingcare forum is what got me through my experience. I couldn't have done it without all the help, knowledge, experience and encouragement I got from there.

Brassedoff

Ianua1, you are right, this ruling is the same one the are using for the refusal to fund a treatment for me and I am in my early 40's not in my last years. I have had my solicitor confirm it and apart from kick up a stink there is not a lot you can do. It's the point of delivery with the incidental caveat that is the killer.