Continuing Health Care - Preparing to fight PCT's decision

monkeyspanner

ct888 wrote: »

Hi Monkey Spanner

I have found your comments and advice most helpful but wish to find a solicitor in England on a no win no fee basis and you mentioned you knew of some. I would much appreciate if you could let me have details? CT888

Here is a link to a solicitor operating and successful in this area. I believe they do free initial assessments of cases but I'm not sure of their ongoing fee structure.

http://www.hughjames.com/our_services/services_to_individuals/nursing_care.aspx

Katykat

www.carelaw.co.uk is a firm run by Rob campbell. He sets a fixed fee of £595 + VAT. However, this just covers 4 hrs work. He says that this is usually enough to establish the case & obtain medical reports ( something which may be difficult for relatives to do). If the PCT have not caved in by that point, you can elect to either take over the case yourself, or continue & pay him hourly.

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 intrusive 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, respnd 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

The only reason that Directors of Primary Care Trusts or Councils dare to wilfully break laws, and force some victims to go to the High Court for a Judicial Review, is because they are confident that if the authority loses, the public purse pays all of the legal costs, and the individual Director will escape personal financial liability.

However, it is clear that individual Directors, managers, and staff, who wilfully choose not to comply with laws, but choose to act ultra vires, have indeed stepped outside the protection of corporate cover and the authority's indemnity. In that event, they can, and should be, sued individually, jointly, or severally.

The procedure is first to serve the transgressor with full legal notice to comply with the relevant point of law. If he still persists in his personal decision to force the claimant to take legal action, the claimant can include in his Court application that, if the claimant wins, the Court will consider awarding the legal costs of both parties against the transgressing individual personally. The application should include applying for a Court Order forbidding the authority from funding or reimbursing the transgressor's costs with any money from the public purse.

And remember that if you do have to go to court, make sure that it's on a NO Win No Fee basis, with it stipulated before that a win for you means that you are financially in the same position as before the court action was required and that the firm acting for you will claim their fee soley from the defendant.

Sarah-Anne_2

The most useful site I found was cheselden.co.uk.
They do an initial assessment for free, you can fill out a form online. The factsheets give you a really good steer as to whether you should be paying for your relative's care or if the NHS should be picking up the bill. My Nan turned out not to be eligible, but it put my mind at rest at least - there are plenty of people shelling out unnecessarily that's for sure. Good luck! : )

Bakewell54

cohentb wrote: »

We had exactly the same problem. We had the documentation that showed procedure had not been followed by the PCT. The panel chair advised us not to present this as it would make no differencr. We got the CHC funding but the PCT continues to deny any maladministration by them, hence no recompense for the costs of the seven year fight and no apology. The Ombudsman has said it would have to be a new case , even though they had noted the PCT failure in their 1st ruling.
So here we go for another couple of years!

I have been fighting for NHS CHC for my mum since May/June '08.
We have been to 2PCT IRPs (ineligible) and are now further on. I will certainly update details at a later stage.
I am posting because costs have been incurred and, although I consider myself fairly efficient and savvy, it had not occurred to me that we could claim costs.
Our costs exceed £2k, does anyone have comments on the likelihood of getting this back? Thank you.
PS I was very interested in the Telegraph article re Paladin as there have been times when I did not know where to turn to for help.

Bakewell54

Is there any way in which writers on this thread could list their geographical location?
We are part of North Staffordshire PCT.

Errata

There is a facility for people to put their location in their profile if they chose to. It then appears under their username in any posts they make.

cohentb

Bakewell54 wrote: »

I have been fighting for NHS CHC for my mum since May/June '08.
We have been to 2PCT IRPs (ineligible) and are now further on. I will certainly update details at a later stage.
I am posting because costs have been incurred and, although I consider myself fairly efficient and savvy, it had not occurred to me that we could claim costs.
Our costs exceed £2k, does anyone have comments on the likelihood of getting this back? Thank you.
.

Just to update we have finally got the PCT to agree to a small payment towards our expenses and costs. Despite the fact that they are constantly seeking legal advice they refuse point blank to refund any legal costs as " the appeal process is simple and legal advice should not be necessary"! The other problem is that we do not have receipts for the other costs like attending panels ,petrol receipts, recorded delivery letters etc.
My experience is that if you persist you will get refunded incidental expenditure if you have receipts, otherwise I suspect the chances are slim.