ian wrote:
To my mind by refusing to pay unlawful care fees they are acting in the best interests of the individual and it would be the courts actions that are not in the best interest of the individual?

ian wrote:To my mind by refusing to pay unlawful care fees they are acting in the best interests of the individual and it would be the courts actions that are not in the best interest of the individual?

ian wrote:So during all the length of time this appeal process continues the sole responsibility for funding remains with the NHS and not with LA or the individual. In those circumstances you could with-hold paying care fees and still not be breaking any law.

Esquires wrote: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.

louis wrote: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?