Assets whilst in a care home

Veryannoyed_3

ianua1 wrote: »

She has a health need, and is entitled under the 1946 National Health Service Act to 'free care at the point of delivery' If her needs are above 'ancilliary or incidental' which they clearly are, all her care is the responsibility of the NHS. Lawfully, under the Health Act and the Appeal's Court Coughlan Judgement she should NOT be paying for her own care.

"The whole of the National Health Service Act 1946 (c. 81) was repealed by the National Health Service Act 1977 (c. 49), Schedule 16."

Norman Hodgett, the General Editor of Legislation at the National Archives confirmed this repeal to me in an email months ago.

Please STOP giving out wrong information to people. All it does is give people false hope that their relative's care will be fully funded by the state. This is not the case.

Trebor16

Veryannoyed wrote: »

"The whole of the National Health Service Act 1946 (c. 81) was repealed by the National Health Service Act 1977 (c. 49), Schedule 16."

Norman Hodgett, the General Editor of Legislation at the National Archives confirmed this repeal to me in an email months ago.

Please STOP giving out wrong information to people. All it does is give people false hope that their relative's care will be fully funded by the state. This is not the case.

But did the 1977 act change the basic principles of the 1946 act? That healthcare should be provided free at the point of need, with no regard for means and not being subject to any criteria?

ianua1

Pollycat wrote: »

That is very easy to say (or type) but it's not so simple to get agreement to entitlement to Continuing Health Care (CHC).

Take a look at this thread where it took someone years to get NHS agreement to pay for a relative's care:
https://forums.moneysavingexpert.com/discussion/800521

Factsheet #27 should give the OP an idea whether there is any chance of getting CHC:
http://www.counselandcare.org.uk/health-care

Agreed.....but the panels are not following the Health Act, Grogan Case or the Coughlan Judgement. The framework they work to and assess people for CHC to, are unlawful. Google the Grogan Case and you'll see that Mr. Justice Charles found the criteria to be 'fatally flawed' since they are based on ‘quality’ and ‘quantity’ or the ‘intensity’, ‘complexity’ and ‘unpredictability’. No such concepts are mentioned anywhere in the Health Act or were decreed in ‘Coughlan’ because nothing like it applies to Miss. Coughlan. It is merely a NHS ploy to avoid paying. The Court ruled ALL Miss. Coughlan’s care to be the sole responsibility of the NHS. Thus to systematically refuse NHS funded care to those whose care needs compare with or exceed those of Miss. Coughlan is blatant discrimination against one particular sector of society and therefore totally unlawful, constitutes a criminal act and breaches Human Rights legislation.

Morrison117

ianua1 wrote: »

Google the Grogan Case and you'll see that Mr. Justice Charles found the criteria to be 'fatally flawed' since they are based on ‘quality’ and ‘quantity’ or the ‘intensity’, ‘complexity’ and ‘unpredictability’.

That is not what Mr Justice Charles said.

I have googled the Grogan Case and I am reading it now. Mr Justice Charles said no such thing as far as I can see.

Perhaps you would kindly post the paragraph reference number where Mr Justice Charles said that he found : "the criteria to be 'fatally flawed' since they are based on 'quality' and 'quantity' or the 'intensity, 'complexity, and 'upredictability'."

He said (my highlighting) : "In my view by failing to give any effective guidance as to the test to be applied in making the required value judgment the Criteria is fatally flawed and it cannot be said from it what test the decision maker is to apply and thus whether, as the Care Trust assert, it indicates that (a) the decision makers are to apply the Primary Health Need Approach as described and advanced by the S/S and the Care Trust in argument, or (b) that this is the approach the decision makers did apply because they have had regard to and applied the guidance given by the Criteria."

Isn't that why the National Framework for Continuing Healthcare came about in 2007 and then revised in 2009?

Morrison117

Trebor16 wrote: »

But did the 1977 act change the basic principles of the 1946 act? That healthcare should be provided free at the point of need, with no regard for means and not being subject to any criteria?

No, Trebor16, it didn't change the basics.

The basic principles remained in the 1977 Act and were then carried forward into the 2006 Act, with slight variation on wordings but no change to the basics. I take it that both the 1946 and the 1977 Acts were repealed by the 2006 Act.

Trebor16

Morrison117 wrote: »

No, Trebor16, it didn't change the basics.

The basic principles remained in the 1977 Act and were then carried forward into the 2006 Act, with slight variation on wordings but no change to the basics. I take it that both the 1946 and the 1977 Acts were repealed by the 2006 Act.

So whilst Ianua is quoting from the repealed act, he is still giving the correct information regarding the legal responsibilities of the NHS?

Trebor16

Morrison117 wrote: »

That is not what Mr Justice Charles said.

I have googled the Grogan Case and I am reading it now. Mr Justice Charles said no such thing as far as I can see.

Perhaps you would kindly post the paragraph reference number where Mr Justice Charles said that he found : "the criteria to be 'fatally flawed' since they are based on 'quality' and 'quantity' or the 'intensity, 'complexity, and 'upredictability'."

He said (my highlighting) : "In my view by failing to give any effective guidance as to the test to be applied in making the required value judgment the Criteria is fatally flawed and it cannot be said from it what test the decision maker is to apply and thus whether, as the Care Trust assert, it indicates that (a) the decision makers are to apply the Primary Health Need Approach as described and advanced by the S/S and the Care Trust in argument, or (b) that this is the approach the decision makers did apply because they have had regard to and applied the guidance given by the Criteria."

Isn't that why the National Framework for Continuing Healthcare came about in 2007 and then revised in 2009?

I have highlighted the part where the judge made the comment about the criteria being fatally flawed.

There were at one time 28 different criterias being used by PCT's around the country and the National Framework was supposed to put an end to the postcode lottery situation by bringing in one criteria. However, I still believe that some PCT's still use their old criteria and then write up the assessment to make it look as if they have used the NF.

If the NF was truly "Coughlan compliant" as the NHS claims then why are so many people with obvious primary health needs being turned down for continuing care funding?

Morrison117

Trebor16 wrote: »

So whilst Ianua is quoting from the repealed act, he is still giving the correct information regarding the legal responsibilities of the NHS?

No, he is not giving correct information, because Ianua1 says

She has a health need, and is entitled under the 1946 National Health Service Act to 'free care at the point of delivery'

(my bolding)

The entitlement would be under the 2006 Act - not under an Act that is no longer in force or on the statute book. Any entitlement under an Act that has been entirely repealed no longer applies. Only if certain sections of an Act are repealed - a partial repeal - does that Act remain on the statute book and provide 'entitlement' under the non-repealed sections remaining. But if an Act is repealed entirely/in total as was the 1946 Act, it ceases to provide 'legal entitlement'.

So the information given by ianua1 was incorrect.

Morrison117

Trebor,

Again, Ianua1 was incorrect when he said

Mr. Justice Charles found the criteria to be 'fatally flawed' since they are based on ‘quality’ and ‘quantity’ or the ‘intensity’, ‘complexity’ and ‘unpredictability’.

Mr Justice Charles didn't say that the criteria were flawed "since they are based on quality and quantity or ..... etc".

It was the failure to provide effective guidance as to the test to be applied that caused him to say that the criteria (sic) was flawed.

That was the purpose of my post, Trebor.

I agree with you that many people with obvious primary health needs are being turned down for continuing care funding. And that there is a postcode lottery still. I don't dispute that. I don't know why any more than anyone else does for sure.

Perhaps the only way to test the NFs that came about after Coughlan, after Grogan, after Ombudsman Reports and so on would be a court of law. That is what Coughlan and Grogan had to do to achieve a result.

Errata

Clearly this is a very brisk discussion. It would help anyone reading this thread if those posting about who said what when and which act has primacy would provide a direct link to the part of the documents hey are referencing.