Mum's IRP is this month. The letter I have had containsthe following -

"the panel will not be able to consider any legal challenges to either the
eligibility criteria or the responsibilities of the NHS."

I have been told they will only look at challenges to the crieria used by the NHS. I have further been told by the SHA that if I don't concentrate the appeal to the IRP on only this they the appeal cannot go ahead.

I have already had an email argument over it but clearly going to IRP is a waste of time - and only facilitates getting towards the next stage before Court.

starlightblue wrote:Mum's IRP is this month. The letter I have had containsthe following -

"the panel will not be able to consider any legal challenges to either the
eligibility criteria or the responsibilities of the NHS."

I have been told they will only look at challenges to the crieria used by the NHS. I have further been told by the SHA that if I don't concentrate the appeal to the IRP on only this they the appeal cannot go ahead.

I have already had an email argument over it but clearly going to IRP is a waste of time - and only facilitates getting towards the next stage before Court.

Hi, SV

Send them a copy of this http://www.lga.gov.uk/lga/aio/19069 And highlight where it say's that they must act lawfully in all decision making

Mick

Thanks Patrick. Will do. But it's been made clear to me - and I have the emails - that they will not consider ANY legal challenges - only the NHS criteria.

In fact - reading the emails again -

'the Panel are tasked with operating within the remit set out in the Secretary of States Directions.'

So are these Directions Coughlan compliant? Or are politicians over-riding Coughlan with their own rules?

I may be wrong, and I'm sure someone will put me straight if I am, but I think what they are saying to you, SLB, is that you cannot challenge the "wording of the criteria" as they are written into the National Framework. Written by our governments and via the DoH. That includes the Sec of State, the Minister with overall responsibility.

But:

You can challenge the way in which those 'criteria' have been applied, in your case.

It's a different kettle of fish altogether.

The 'criteria as written' can't be challenged - other than via the original creators of the NF.

But you can challenge the way in which those same criteria have been applied - or you can even challenge the way in which the criteria have 'not been applied', as the case may be.

Does that make sense?

VM

Thanks VM. It does make sense but - if the National Framework is illegal, (is it?) - then surely the entire criteria is too.

If you and your advisers are of the opinion that the NF is 'illegal', you don't need to worry about criteria, or the way in which they are applied.

Also, you don't need to go along the IRP process.

All you need to do is to say 'humbug' and 'illegal' and that should be enough.

But you may then need to 'take it to court' rather than slogging through the IRP procedures - because they are all to do with the NF and the application of the NF and the systems written into the NF about challenging it all.

You can't accept the procedures of appeal but at the same time say "it's illegal anyway".

If the NF is 'illegal', then so are the appeals procedures that you are currently working your way through.

Ask Steve to guide you through it. He's the debunker of legal v. illegal.

VM

starlightblue wrote:Thanks VM. It does make sense but - if the National Framework is illegal, (is it?) - then surely the entire criteria is too.

SLB

The national frame work is only guidance and not legislation (Law) the link i posted to the adass warn the local authorities and P.C.T's to make sure they are acting within the law when making decision's and that all relevant assessments are carried out within the law

Mick

OK thanks

Dear All,

I am slowly trying to get up to speed with all this care stuff. I would like to add how I understand it. Of course, open to being corrected.

Surely before any legal challenge, paragraph 79 of the NF states the PCT should be aware of cases where eligibility should have been determined i.e. Coughlan and cases investigated and published by the HSO. Any decision made on eligibility, should use these cases as benchmark comparators to establish the accuracy of an eligibility decision as to where NHS CHC starts and LA responsibility stops. The ADASS document referenced below, at 5i raises this very point.

The LA is governed by law as to where their responsibilities stop. The NHS as per the Health Act has targets, but, there can be no gap between where one authorities responsibilities stop and the others start; somebody has to fill the gap – the NHS. If the NHS cannot demonstrate beyond any reasonable doubt (as per the Wednesbury reasonableness test) that a persons care needs “in totality” be that quantity or quality are beyond the decided cases in law and those investigated by the HSO, any decision be must be deemed unsound and I guess possibly illegal. This maybe where a Mandatory Order could be served to comply with their National Framework?

Remember the quote from Coughlan, “Miss Coughlan needed services of a wholly different category”. Also from the Wigan case investigated by the HSO “I cannot see that any authority could reasonably conclude [Wednesbury test] that her need for nursing care was merely incidental or ancillary to the provision of accommodation or of a nature one could expect Social Services to provide. It seems clear to me that she, like Miss Coughlan, needed services of a wholly different kind”.

To me the ADASS document apart from Luke Clements original briefing document from 2006 during the National Framework consultation period, which also raises many if the same issues (see link below) seems to be one of the better documents generated by any authority and how decided cases in law and investigated by the HSO should be used as comparators (ADASS page 17 (5i)).

I have seen posts on this forum stating that the ADASS document has been withdrawn/retired, without a successor, I wonder why!! However, it is still an important document especially as it cites LAC(93)10 (see below). The ADASS document states on more than one occasion the limit of the Local Authority is way below where the NHS believe the start point to be, namely at page 5, “two or more high needs (or need above high), AND at the same, three or more moderate needs (or needs above moderate) should normally be considered to be beyond the scope of LA provision”.

This is further backed up by the statement in the ADASS document on page 11 section 3C, stating that Local Authority directions LAC(93)10 remain in force. Steve Squires quotes this document regularly in his posts.

I see very little mention of this LAC(93)10 document anywhere. Section 21 of the National Assistance Act which seems to gets all the headlines does not empower Local Authorities to do anything without the approval of the Secretary of State. This is the opening line of S21.

If you look at the opening line of LAC(93)10, this is the document that empowers the LA’s with the approvals and directions. Namely if it isn’t in LAC(93)10, the LA’s can’t do it. With regard to “nursing” (as Steve S, states frequently), the quality or quantity limit of what LA’s can provide are stated at section 4,(c)(ii) i.e. “nursing attention during illnesses of a kind which are ordinarily nursed at home”. This to me would somewhat concur with the statements made in the ADASS document regarding DST domains, namely the limit of LA responsibility - “two or more high needs (or need above high), AND at the same time, three or more moderate needs (or needs above moderate) should normally be considered to be beyond the scope of LA provision”.
Document generated by Luke Clements. http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/21_07_06_luke_clements_briefing.pdf This was a pre launch critique of the NF in 2006 and is still very much an accurate summary of what I believe is all that is wrong with the NF and I can see many parallels between this document and the ADASS document. For instance at page 13 under “Inappropriate assessment Tools”; the DST is far too biased on the quality of the care rather than the quantity, something again the ADASS document makes reference to at page 12,(3h).

Of course the NHS will no doubt try to brush this off as merely a briefing document, but it is still relevant, because virtually all the criticisms raised in the NF briefing document survived and remain in the NF and DST today.

Quantity I believe is the part being grossly overlooked by the NHS in terms of what the LA’s can provide (limits as clearly stated in LAC(93)10 4,(c)(ii)).

Thoughts?

Excellent posting!

"Of course the NHS will no doubt try to brush this off as merely a briefing document...."

But NF is only GUIDANCE and not law.

Yes, the NF is only "guidance", not law, but it is the only guidance that we have got. I also went along the line of trying to pick the NF to pieces, but I then realised that this was a futile effort and was taking up much of my time and energy. SO, then I started to view it in a different light ie- tha aim of it is to "TRY" to bring about a marrying together of all PCT to try to eliminate a postcode lottery. Now, we all know that this has not happened and that each PCT has decided to interpret the NF in different ways, but that then becomes the job of the SHA & ultimately the Ombudsman to apply the NF in the way it was intended.
I do understand your frustration SB when the SHA say that they will not discuss the NF criteria, but if they did do this at every IRP, then the focus would be taken away from the person who is being assessed for CHC. Yes, it is wrong for the NF to be dissected in the ways that it has, BUT, if you study it in intimate detail and then transfer those criteria EXACTLY to apply to your relative, then the NF can actually help you. The only detail that the IRP AND the ombudsman can consider is whether the NF criteria has been correctly adhered to by the PCT. We all know that in almost every case, it hasn't. It isn't the NF that is wrong, it is the DST and how it is applied.

I hear what you are saying KatyKat - but there seems to be 2 lines of thought on these boards - one from a NF and DST viewpoint and how to challenge it, and the other from the purely legal aspect - as per Steve, i.e the NF is illegal, not Coughlan compliant etc etc...

I'm sure both are the right way to go when used together.

As bad as it is, the NF does state (at 79) decisions should be cognisant of decided cases in Law and also investigated by the HSO. These are the bench marks / comparators for any decision made by any PCT/SHA, thus I suppose trying to take away the post code lottery. It goes on to caution in drawing generalisations about these decided cases from the limited information they may have, which is a moot point as that’s exactly why they have been made an example of in the first place!

Surely, if any decision cannot be justified to be less than comparable to the cases in the public domain in terms of quantity or quality or care needs, what other alternative can a panel rationally come to? These cases are expressly mentioned in the NF.

The problem is the DST for the reasons stated in the Luke Clements and ADASS documents mentioned in above posts and in my opinion panels not taking cognisance of the decided cases to calibrate their DST decisions. The ADASS document states the limit of LA care is below where the DST suggests NHS CHC starts and don’t forget all RN (therefore FNC activity) all counts towards the amount of time (quantity) and expertise (quality) as per para 23 of the NF, pushing the ceiling of where the LA can legally be involved (S21 NAA / LAC(93)10)). Funded nursing care doesn’t bridge the gap between LA and NHS CHC, its Incidental and Ancillary.

You will never get anywhere with PCT/SHA/HSO as to whether the NF/DST is legal or not, that’s for the courts.

Please click the link below and refer to my posts No's 7 and 23, etc. The crucial point is that ministerial guidance (National Framework, etc.)is an internal management tool and as such CANNOT be used to circumvent the law (The Health Act in this case and ensuing case law)or to rescind a citizen's statutory rights. Tell the review panel that if they intend to ignore the law and revoke a patients statutory rights then you will serve them with a mandatory order and petition for exemplary damages plus costs against the panel severally and individually. Steve.

http://freenursingcare.findtalk.biz/t227-vital-advice-for-all-those-claiming-nhs-care

I have contacted the campaigns Solicitor through Steve, so we'll see where this mandatory order takes us.

I'm looking at taking out a mandatory order too, but how do I go about it? I Presume I need a solicitor? How much will it cost?
Steve - are you able to help in any way (either paid, or voluntary?) Thanks.

louis wrote:I have contacted the campaigns Solicitor through Steve, so we'll see where this mandatory order takes us.

Excellent posts Louis; Thank you. Please let us know how you get on.

As I understand it, a 'Writ of Mandamus' now called a mandatory order, could be used to compel a statutory body or body corporate, such as a local authority, government department or a limited company, to obey the law. You simply needed to show your local county court what law you wished to enforce and produce evidence to prove that it was being ignored. You could then petion for costs and compensation at any subsequent court hearing. This was usually heard by the registrar - not before an open court unless of course your claim was disputed. This was rare if you had done your homework first. However all this appears to have changed and solicitors seem to hold the view that it has now been replaced by judicial review - an extremely tedious and costly procedure but a serious 'earner' for the legal profession! My view is why on earth should anyone have to pay anything to have the law obeyed? Normally one would expect the police could be involved but my mate - a retired 'Detective chief superindent'(MET)- says that they won't "because its not criminal" adding "they wouldn't understand it!" If conspiring to defraud millions of frail sick and vulnerable elderly people isn't criminal then I wonder what is! I am sure that the 'serious fraud office' are perfectly capable of 'understanding' this if they were ordered to investigate. Can any forum member spare the time to contact their county court clerks office and obtain their guidance - and report back? It may be that solicitors are just reluctant to advise potential clients to try a 'DIY'approach! Steve.

Also very interested to hear progress with this.

Did just goole this

"writ of mandamus: an extraordinary writ commanding an official to perform a ministerial act that the law recognizes as an absolute duty and not a matter for the official's discretion

Procedure: Identify what legal right you personally have to seek a writ of mandate. You need to demonstrate that a governmental entity or representative is legally bound to perform a certain act or function and the failure to do so has impacted your rights.

Make certain that the issue at hand does not involve a discretionary function of the governmental entity or representative. You cannot bring a writ of mandate if the act not being taken is one that can be pursued on a discretionary basis."

Hello All
If I get no reply I will go to the court in person
Regards
Alex

Dear Sir

To Clerk of Court

I am seeking your advice on how to go about and place a MANDATORY ORDER on probably both the NHS and Social Services in Surrey.
Your advice on how I/we can do this would be much appreciated and an idea of any costs involved.

Yours sincerely
A Wilson

Please note: I am not sure your Cc field is working correctly in your address fields.

Hello All

Below is the reply I have had to date, but it was a reply from the. general email address and I have still to hear from the actual Clerk of the Court. Suffice to say it is what I am expecting and I will in due course go to the police when I think the time is right. The police may turn my situation down but it opens up more the publicity avenue with the Press and MPs etc.
Regards
Alex

Message Body



Hi, I think you'll find that the clerk will suggest that you cite the PCT and social services dept individually and then set about issuing a claim against them; this is what I did several months ago and literally stirred up the proverbial 'hornets nest'. The next thing that happened was that the PCT issued a defence via their grossly expensive central London solicitors claiming (a) that I should not have issued proceedings against the CEO of the PCT, and (b) that the claim was not public law. Just to make sure that I'd got the message, they also stated that if I continued with my claim and that it cleared these two hurdles, went to court, and that I were to lose, they'd be claiming another 15k in addition to the £1800 that they now wanted for filing this original defence. I believe, as Lord Denning once said 'the law is like the doors of the Ritz, open to everyone'. Do please keep us informed of your 'progress' and good luck - you'll need it !

Thanks for sharing this. I'm not clear who your response is from. Sorry to be dim and confused

Hello All
I emailed our local county court which was a site for general enquiries at the court and a person not the clerk of the court responded with the above.I have his name and have asked him for futher detais on if he paid the £1800 etc and I have still to ask him if he minds his name being made public.I am also awaiting a reponse from the CLERK of the court.
Failing this I will have to find time to travel to the courts in KINGSTON. We should all be able to email our local County Court and get at least an email response.
Regards
Alex

iwillwincc wrote:Hello All

Below is the reply I have had to date, but it was a reply from the. general email address and I have still to hear from the actual Clerk of the Court. Suffice to say it is what I am expecting and I will in due course go to the police when I think the time is right. The police may turn my situation down but it opens up more the publicity avenue with the Press and MPs etc.
Regards
Alex

Message Body



Hi, I think you'll find that the clerk will suggest that you cite the PCT and social services dept individually and then set about issuing a claim against them; this is what I did several months ago and literally stirred up the proverbial 'hornets nest'. The next thing that happened was that the PCT issued a defence via their grossly expensive central London solicitors claiming (a) that I should not have issued proceedings against the CEO of the PCT, and (b) that the claim was not public law. Just to make sure that I'd got the message, they also stated that if I continued with my claim and that it cleared these two hurdles, went to court, and that I were to lose, they'd be claiming another 15k in addition to the £1800 that they now wanted for filing this original defence. I believe, as Lord Denning once said 'the law is like the doors of the Ritz, open to everyone'. Do please keep us informed of your 'progress' and good luck - you'll need it !

What ???? are you saying you emailed an email address at the county court and the above was the reply??? If I am right and that's what happened, how very very odd! I don't understand how someone at the county court who responds to emails received, replies to people in the way they have.
Why would they email you such a weird reply??? It sounds very very fishy to me. I would tread very carefully with the person who sent you this email as it seems there is a hidden agenda there. Call me paranoid but if I have understood this correctly I am amazed .

Hello All


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Hello All
See below reply this morning(not from the clerk of court)
Regards
Alex
Body






Alex.

I'm a retired Metropolitan police officer, so my 'knowledge' of the civil law is less than that of both solicitors and NHS lawyers much to my chagrin.

For your circumstances, I think it would be much better if you phoned the 'claims office' at your local County Court and get as much info' from them as regards who to issue any claim against. They were very helpful when I phoned my local one at Canterbury, but it was the Devil's own work to get the right dept.

As regards my situation, as I said previously, the PCT's lawyers issued a defence and the customary 'threat' of enormous costs if I didn't withdraw. Needless to say with the threat of 15k's costs if we were to lose hanging over our heads I was minded to pull out quick. A week later the PCT's lawyers offered to, what's called "drop hands"; in effect, both sides write to the Court saying the matter has been resolved and both parties will pay their own costs. So, you can see that that saved me having to pay their £1800, but I still lost about £900 in trying to get it that far - 'c'est la vie' as they say.

I'm now working with a solicitor who's an old friend - I know, can you ever call a solicitor a 'friend' ! and we're looking at seeing whether it's affordable to get a Judicial Review. Thus far, I'm another 2k down, and if you've not worked it out already, and I'm sure you have, it's all about costs. The PCT's and Social Services have a bottomless pit of taxpayer's money to fund their defences - we don't, and they know that. After 5 years of fighting to recover monies paid between 2004-2006, I know that there's no 'silver bullet'. If you find it, do tell me ! Good Luck.

Alex,

I'm really confused by your posts? Would you mind just summarsing them so I know what they are relating too?

Thanks

Hello All and Beetle
If you look back 8 posts you will see Steve/E Squires has written about MANDATORY ORDERS and if someone would find out what the CLERK at the COUNTY COURT would advise if you pursued the MANDATORY ORDER path which used to be called MANDAMUS.
All I did at this stage was email a number for the general enquiries on a fishing expedition to find out what is involved as it seems a good route to pursue in my own fight for CHC.To date I have had two replies to the emails which I have sent to the general email court number in KOT from a person whom I have not named as I have not asked him whether or not he would object to his name being put on this web site.
I am still waiting for a reply from the CLERK of the court and at the moment I have to assume the replies come from someone who works there and has replied and given his personal story of his own experience with the NHS.
Regards
Alex(sorry if it is confusing)

Right. Let's clear up this mess of a thread that's all down to me !! Apologies, as I'm completely computer-illiterate and don't know the difference between private message, e-mail etc. I do not work at the County court; as I posted on previous threads, I've been down that route (without success) and am now 'working' with a solicitor in an attempt to see whether it is financially viable to seek a Judicial Review. I was trying to advise the member on the likely result of enquiries and results if going down that similar route, and not to throw 'good money after bad'; I will inform the forum of any result that I get from my own tortuous journey, if and as and when I get a reply from the PCT.
Of course it's not for me to tell others what to do regarding court action, it's just that as has been previously mentioned, the PCT's have loads of money to throw at any defence, spurious as it is !
I hope that this clears up things; it's good to know that there are some suspicious minds out there, that'll keep this forum healthy.
Apologies again, I'll go and sit in a darkened room and keep my 'input' to the bare minimum - and to think I used to be a 'copper'.....Jees..!!!

HI Starlightblue
I am sorry that you are having a bad time at the moment with the IRP meeting.
The position is that they cant deal with any kind of challenge to either the framework or its criteria on the grounds of it being unlawful. The national framework is internal guidance from the department of health. IT is not a legal document, it does not have any legal validity or power. It would have to be a statatory act passed by parliament for that to be so. Therefore the question of legality of the framework can not arise in this setting.
To say the national framework is illegal, or unlawful, of its self ( in its formulation ) again is difficult to use mainly because the question of legality cannot be brought to bear very easily as the framework isnt a legal document.
However, the actions of those using it, or mis-using it, may well be deemed to be so if their actions can be proven ( actus reus ) and there was deliberate intention to commit ( mens rea ) and that these actions are contrary to statatory laws.
But the place for these questions to be answered is the law courts not the IRP meeting, which only deals with how the criteria was applied in the DST meeting.
If the IRP meeting is not fair this is contrary to article 6 Human Rights Act. But this can only be proven in a court of law.-
Confirmation of what a IRP can discuss is contained in Dorset County Council-NHS Dorset: operational policy for NHS continuing healthcare and NHS funded nursing care.
" 14.-4-4 If there is a challenge to the lawfulness of the criteria, that challenge is a matter for the courts and not for the local PCT or The Strategic Health Authority. "
Kind Regards Ian

Although Ian quotes me in stating that the National Framework is unlawful that is not strictly true! To be precise it's simply that the APPLICATION of the National Framework CAN produce an unlawful result! It can cause a patient to be denied NHS care 'free at the point of need regardless of the ability to pay'. But that is the statutory right of every resident British citizen and a statutory right cannot be unilaterally rescinded.
The APPLICATION of 'Eligibility Criteria' IS unlawful because the Health Act contains no provision to determine who shall and shall not be entitled to receive NHS funded care. EVERYBODY who suffers an illness disability or injury is entitled to receive NHS care. Criteria is also unlawful because it discriminates against one specific sector of the community - primarily elderly people who require long term care - and thus breaches their Human Rights. It is also discriminatory in that if Miss Coughlan were subjected to 'National Framework' criteria she would fail to qualify for NHS funding. The legal position appears to be that they can apply their 'National Framework' to GRANT any patient NHS funded care but it cannot be lawfully used to REFUSE it! (Now THAT is what I call a 'bloody shambles'!!)Steve.

Hi Steve Thank you for your comments and i do agree with them.
I did not actually say that the National Framework was unlawful, at least in its formulation. Because it is not a statatory document it doesnt have legal validity of itself therefore all questions of it being unlawful ( in its formulation ) cant arise.
the point it becomes applied however, the over-restrictive eligibility criteria contained within the DST domains and the way these are interpreted by those doing the assessing can and often does become unlawful and certainly contrary to THE 1946 National Health ACT.
I would also think it breaches the disability discrimination act, in the sense that many of those seeking CHC are disabled because of their condition.
yes Steve it is a "bloody shambles" and a deliberate one highlighted for me at a DST meeting last year by the comments made by a NHS CHC Cordinator of what she thought of the 1946 NATIONAL HEALTH ACT " and what fool thought of that one " our response was "the person who wrote it".
Kind regards IAN

Before they dreamed up their current 'National Framework' every authority applied their own eligibility criteria and when I was fighting my late father's case they told me "that is the law and we must all abide by it" My response was of course "CRAP!" followed by "in that case please tell me the name and date of the relevant Parliamentary act" They couldn't of course and chose to claim "our legal department says it is!" I eventually won my case on the basis that 'the eligibility criteria applied were more restrictive than national guidelines permitted' - but they still insisted that their 'guidelines' were lawful! I therefore asked why they hadn't attempted to compel me to accept their guidelines before a judge. Yes - you've gussed it "our legal advisers said we can't!"
The current situation is no different: If their new 'National Framework' had the force of law then they could take enforcement action through the courts. They never have of course!!
DoH 'Guidelines' are just guidelines for NHS staff not for CLAIMANTS. They carry no weight in law and are thus unenforceable so can be rejected out of hand. Claimants 'guidelines' are provided by the National Health Service Act which most certainly does carry the force of law. So TELL their Nurse assessors, review panels, etc. that you reject THEIR National Framework and that you require them to apply the LAW and provide "NHS care free at the point of need regardless of the ability to pay". Add that you WILL NOT PAY and if they think you should then they must put their claim before a court of law. The truth of course is that they shunt care costs on to social services who then use the National Assistance act to recover THEIR costs - for services which they had no lawful mandate to provide in the first place! It's definitely an INTENTIONAL 'Bloody Shambles'!! Steve.

Steve/Others

Is there any statement that one can make to SS in this climate of taking POAs/next of Kin to court, which would actually make them hesitate to take cases on? I know that I am looking for the silver bullet but thought I'd ask anyway...feeling a bit wobbly at present with prospect of handover to the lovely SS.

Esquires wrote:.... Add that you WILL NOT PAY and if they think you should then they must put their claim before a court of law.

I would add a few words of caution to that advice, if I may.

If you hold a registered EPA or LPA for finances, you may indeed find yourself before a court - the Court of Protection. You may be ordered by the Court to pay the care home fees, and you may also be charged £20,000 approx for the privilege, to cover all the costs of whichever NHS body, be it PCT or FT, decided to take court action against you. Then, you may also find that there will be a move to remove your Attorneyship from you, and a Court Appointed Deputy may then be set in place.

A 'well known' Barrister also said pay the fees or you may be extremely financially disadvantaged.

That's fact - not fiction.

VM

The CoP is also part of the conspiracy to defraud. If they threaten you ask them if they apply the National Health Service act and the 'Coughlan', St.Helens, Grogan, and Booker judgements, and the National Assistance Act and ministerial directives such as LAC(93)10 and the DoH 'National Framework' in their 'judgements'.
Perhaps it is possible to invoke the Human Rights act and demand that your case be heard before the 'European Court of Human Rights' or at least by an 'Independent and impartial tribunal' lawfully constituted in accordance with Article 6 of the HR act.
Steve.

So far then, we've established that all Governments, the NHS and all the PCTs, the SS and all the LAs, all Solicitors and all Barristers, all Courts and also the Court of Protection are all part of this Conspiracy to defraud.

Recently, a Solicitor and a Barrister and another Learned Counsel and a Court of Protection have all thrown out the St Helens judgment - only a couple of weeks ago, instructing their clients to pay up. They've also quoted the relevant parts of the National Health Service Act and the NAA to support their judgments.

Perhaps Moses will appear soon with a few new Tablets of stone. He smashed a few in his day, then created a few new ones - so maybe he'll be along soon.

VM

VM - have you got a link to all this? I've just checked to see if there's any sand dunes outside and our green and pleasant land has become a middle east military dictatorship! Must see if 'Bomb making for amateurs' is being offered by Amazon! Steve.

Link to what, Steve?

You don't mean a link to Moses, I hope, 'cos got no links to Moses apart from the obvious one.

As for Amazon - they used to do a lot of guides for idiots and dummies ... to all sort of things. Not sure bomb making featured though. But Guy aka Guido Fawkes could perhaps assist.

VM

"Recently, a Solicitor and a Barrister and another Learned Counsel and a Court of Protection have all thrown out the St Helens judgment - only a couple of weeks ago, instructing their clients to pay up. They've also quoted the relevant parts of the National Health Service Act and the NAA to support their judgments".

Do you have a link to this? Only the Court of Appeal could throw out a judgement or the supreme court if St. Helens was heard by the CoA. Steve.

No, links are not available yet. Links take a long while to appear - months and months if connected with Court cases - and some of them won't ever appear as postable links ... ever.

That's because the Worthy Legals are all 'judging and assessing' CHC cases of people that I've also been trying to support either by help with letters, reading and interpreting gobbledygook emails and letters, helping with writing readable responses, and then trying to put them in touch with local support persons.

So when ... if ... suitable links appear, they will be provided. But, at present, these cases are all personal to me and to my connections in the world. But being stuffed by the advice they've followed thus far.

When I said that they'd all thrown out the St H judgment, I meant that they'd all said that it was not something that could be used and relied upon to support their reasons for refusing to pay care home fees. The CoP wasn't interested either in anything other than the fact that a registered EPA/LPA holder is required to act in the best interests of their donor, so they were instructed to pay care home fees.

VM

VM, forgive me I'm confused(again!)

Are you saying the St Helen's j'ment has been rejected in a/some court cases (in which case will there be an appeal?)

or that some lawyers have offered contrary advice/opinion to their clients prior or during the course of intended or actual litigation

or perhaps both?

sillysally wrote:VM, forgive me I'm confused(again!

VM doesn't do forgiveness - VM is a confirmed Evolutionist.

Are you saying the St Helen's j'ment has been rejected in a/some court cases (in which case will there be an appeal?)

Yes, and no there won't be an appeal. There's little point.

or that some lawyers have offered contrary advice/opinion to their clients prior or during the course of intended or actual litigation

Not only lawyers/solicitors but also Barrister and Learned Counsel. Who have been advising as to whether to follow through with your above mentioned appeal.

or perhaps both?

Depends on which way the wind is blowing on any given day as to whether both of the above apply. But in the interim, yes, Court wasn't interested, Solicitors sought advice from Barrister who said ''''' forget it ''''''.

The message being received from the transmitting antennae of the very expensive legal advice sought thus far is along the lines of ............ don't bother challenging the legality of the NF, or citing X and Y and Z as mentioned previously. They then cite the National Health Act and the NAA .... with suitable references to paragraphs and sub-paragraphs all to justify their very expensive legal advice.

All of which begs questions for the Campaign Solicitor to answer, perhaps. Bearing in mind that everything posted on the forum comes validated by .............. something or other.


VM

Mere 'advice' by solicitors, Barristers et al, CANNOT repeal a judgement or change the law! The CoP view that witholding care fees is not acting in the best interest of patients is completely erroneous. Placing a substantial financial burden on or risking their entire assets is certainly NOT in any patients 'best interests'. In fact it breaches Human Rights legislation.
An order by any court to meet an unproven debt is contrary to all concepts of justice and common law and the CoP do not have a mandate to line the very deep pockets of care home proprietors!

The best advice is provided by the law society: "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."

In other words, anyone who is so ill that they require 24/7 access to health care services is entitled to receive that care from the NHS 'free at the point of need regardless of the ability to pay'

I am not aware that CoP rulings cannot be appealed - possibly via. the 'Supreme Court' - and it would be helpful if someone could spare the time to find out! Personally I think that the Court of Protection should be abolished as they are simply 'not fit for purpose'. Steve.

ps.Some months ago the 'News of The World' published an excellent article exposing the CoP for what it is. Did anyone download it?

Steve,

I am not aware that CoP rulings cannot be appealed - possibly via. the 'Supreme Court' - and it would be helpful if someone could spare the time to find out!

Could you perhaps ask the Campaign Solicitor about that one? Ask him for an estimate of the kind of costs that might be involved in following through with action against the Court of Protection too, please.

VM

Hi Victoria The ST Helens ( Alyson Booker ) judgement still stands. To my knowledge it has not been reversed so it still takes precedence. There are many references to it from law firms on the net. NHS Oldham took a beating over this. Their argument was that they were not withdrawing care because she had the ability to pay but rather because of her decision to receive continiung care on a private basis.
the judge held that the defendents decision to withdraw continuing care was unlawful and irrational and " to refuse treatment by reference to the means of the patient would be contrary to the priniciple that the NHS was not a means tested service and was provided to patients on the basis of their medical needs without reference to their financial position.
" The defendents decision was contrary to the principle in S1 (3) NATIONAL HEALTH SERVICE ACT 2006 and the provisions of the NHS constitution."
" There was nothing in the NATIONAL FRAMEWORK DOCUMENT that supported the conclusion that the defendent was entitled to refuse continuing healthcare provision on the basis that the claimant could pay for the care privately."
In deciding whether a service was reasonably required or was necessary to meet a reasonable requirement,the defendent was bound to have regard to the target duty in S1 (2) of the 2006 act to provide a comprehensive service free at the point of delivery.
There is a conspiracy to defraud going on and whos to say that money and power cant buy all. Everything is inter-linked.
The trouble with the legal profession is that it is by nature conservative in approach and many of these people have very high egos and to lose can be seen to be a serious professional loss of esteem. Kind regards Ian

Hi Steve
Havent got NOTW article but have got a very good one from a guy called Jason Lewis Mail ON Sunday on my files Headed " SECRET COURT SEIZES £3.2 BN FROM ELDERLY AND EVEN FORCES FURIOUS FAMILIES TO PAY TO ACCESS OWN BANK ACCOUNTS " http://www.dailymail.co.uk/secret-court-seizes-3-2 bn-elderly-mentally impaired.html.
Yes I am fully aware of the nature of the Courts Of Protection and the Office Of The Public Guardian. I received a lot of info from a journalist called Tony Gosling who is on internet radio Bristol and theres plenty of info from but in a different field from us by Ian Joseph.His field is forced child abductions. IN my opinion these quangos are little different from those that existed in Russia under communism. Organizations for the control and suppression of the general public.
Will try to see what i can find on appeals against decisions made by the COP AND OOTPG.
Kind regards Ian

Ian

http://webarchive.nationalarchives.gov.uk/20110218200720/http://www.hmcourts-service.gov.uk/cms/files/20A_-_Appeals_PD.pdf

I'll come back to the St H's judgment and the Booker another day. (Which St Helen's judgment are you referring to, Ian? I was meaning the St H's 2007 one, not the Booker 2010 judgment.)But not today. However, the circumstances of the Booker case are not directly applicable to the circumstances of every single case.

Steve, I didn't say any judgment had been repealed, or that anything had been 'overturned'. I said that they had been 'thrown out' as not being relevant to the cirumstances of the case being considered. I think, if anything, we are beginning to realise that it can sometimes be counter-productive to cite all these cases, when ..... no matter how much you/we/all might hate it ..... the NF is in place, whether we like it or not, and that is what has to be applied in the real world. And the NAA, of course!

I've been doing a fair bit of research over the last couple of weeks, and read the most unbelievable amount of 'boring' stuff. Simply so as to understand everything possible - including the NHA, the NAA, Lord Hunt's statements during a debate, the St He, the Booker, the this and the that. I did say it's been boring!!

VM

Ian - The St. Helens case was between St. Helens Borough Council and Manchester Primary Care Trust. Heard on 23rd. June 2008,Court of Appeal Royal Courts of Justice, London WC2A 2LL.

The 'Booker' case was between Alyson Booker and NHS Oldham and Direct Line Insurance. Heard 6-7 October 2010, Administrative Court, Manchester Civil Justice Centre.
This case quoted Lord Woolf in 'Coughlan' to emphasize the dominance of the Health Act. Steve.