First topic message reminder :

Hi all

I am aquainted with a lady who is in sheltered accommodation: this is no longer suitable for her. To be honest I do not think she will 'qualify' for CHC, so let's leave that argument aside for now. To be further honest, she has money, although, of course, this must not be allowed to influence any decision about eligibility for CHC.

My question is: does this lady have to go through Social Services or can she simply ignore them and take a place in a residential home at her own expense? What are the possible consequences of going it alone (apart from cost)? I am aware that the day may come when she will seek to gain CHC - what would be her position if she has ignored Social Services?

I would be grateful for any advice. I am not a relative although I am in touch with the lady's son who lives some distance away and has 'problems' of his own, so I am gatheriong information for him.

Thank you.

maryjo

maryjo wrote:
On with the fun - get back in the car - we all can do with cheering-up at times. maryjo

OK, maryjo - just got out of the car. Very frosty here today so am pleased to be in again rather than out.

Steve, if you have a rat problem (don't we all! ), I hope you don't snore:

http://www.youtube.com/watch?v=zZJqRhKBSzg

http://en.wikipedia.org/wiki/The_Rat_Swallower

(NB. For clarification: I'm not recommending Wikipedia as a source of information!! Just as a source of fun sometimes. Have a look at some of the links on right. Phew!)

VM

On the r.h. of the YouTube page, that is.

VM

I'm off to uncle Stephens with me mates For sundy Lunch

He He Mick

Referring to VM's post No.24 above: Firstly, although they frequently change their own rules (their 'National Framework' etc.) these are only internal guidelines and NOT a definitive statement of the law. They can therefore be challenged if their application produces an unlawful result, ie. one which conflicts with the law and deprives a citizen of their statutory rights AND of course if they fail to - or misapply - their own rules. Neither the NHS nor social services can unilaterally withdraw patient funding and leave them unsupported. They MUST continue to fund 'pending resolution of any funding dispute'. The NHS must FIRST complete a MDA which clearly shows how the patient no longer meets their 'eligibility criteria' which must show exactly 'what's changed' since funding was previously approved - likewise the SS. Neither body can simply declare the patient to be 'self funding'- and bow out. At this point the patient has the right to invoke the formal appeals process and the NHS or SS must continue to fund right up to the Ombudsman, and beyond, as an appeal can then be made to a court of law. THEIR judgement can be appealed to a higher court or even the ECHR. Funding cannot be withdrawn until the WHOLE process is exhausted - not simply when the NHS say it is! Steve.

Steve,

Please could you give a precise citation for;

"Neither the NHS nor social services can unilaterally withdraw patient funding and leave them unsupported. They MUST continue to fund 'pending resolution of any funding dispute'"

I'm not trying to be confrontational here, just accutate. I can find no current obligation on the PCT beyond "support" to be provided during the dispute process.

Similarly, please can you explain why the NF Guidelines and more particualrly the DST are not products of secondary legislation made by the Sec of State for Health under primary legislation eg The Health Services Act 2006 and various Delayed Discharge Acts.

As you are aware, clarification of these points is needed in my own case.

I thoroughly agree that challenges can and should be made when procedure is not followed and rules are broken.

Victoria Meldrew wrote:

maryjo wrote:
On with the fun - get back in the car - we all can do with cheering-up at times. maryjo

OK, maryjo - just got out of the car. Very frosty here today so am pleased to be in again rather than out.

Steve, if you have a rat problem (don't we all! ), I hope you don't snore:

http://www.youtube.com/watch?v=zZJqRhKBSzg

http://en.wikipedia.org/wiki/The_Rat_Swallower

(NB. For clarification: I'm not recommending Wikipedia as a source of information!! Just as a source of fun sometimes. Have a look at some of the links on right. Phew!)

VM

You Tube clips are very charming, but the main one left me wondering why that poor man had so many rats in his discarded trousers. Perhaps he was one of those Record Breaker chappies?

Thank you for the links VM ....BRILLIANT..a very welcome relief provided to all. Thank you Mike for the invitation to lunch above and posting your retrospective claim for CHC reply letter, I have copied and pasted it for future reference...the whole process is daunting but you have achieved justice which is what it is all about. Thank you both for your enormous encouragement to us all.
MG

Breaking News, Kidnapped Downing Street rat traced to the Devon area, You Didn't Did you steve

http://www.bbc.co.uk/news/uk-12204011

Sillysally, that's what I'd like to find too.

Exact and accurate references will help everyone. If only so that they can be cited 'elsewhere' and with confidence.

So, Steve, can you please provide precise references/citations and links that we can all follow. for your assertion that

Neither the NHS nor social services can unilaterally withdraw patient funding and leave them unsupported. They MUST continue to fund 'pending resolution of any funding dispute'

and also as Sillysally asked:

.... why the NF Guidelines and more particualrly the DST are not products of secondary legislation made by the Sec of State for Health under primary legislation eg The Health Services Act 2006 and various Delayed Discharge Acts

Thanks in advance. Or should this be in a new thread??? Since this one is now rat-infested!

VM

SS - It will take me some time to unearth the origin of this although I cannot see what 'support' a PCT could provide other than financial if the patient is already in a care home! The health act is a 'dominent act' and can only be amended by primary legislation - which requires full parliamentary process - such as the proposed 'health bill'. Although their 'National Framework' MAY be lawful in itself its application cannot be employed to produce an unlawful result - such as to deprive citizens of their statutory rights under the health act. Ask your MP for clarification! Steve.

Illuminating piece of deduction Steve ...When I spoke to my MP with regard to the National Health Act of 1946 (I had only just joined the forum!!) and was about to confront my first MDT meeting in 2011... MP's reply to me was "I know nothing about it. We have lot's of questions asked of us we cannot know everything" I witnessed her on the TV a few weeks later stating she gave her full backing to the Health Bill presented currently by Andrew Langsley. She was far less flustered at the end of her interview with the BBC interviewer than she was at the end of my interview with her....all down to the information provided to me at the time by Patrick11 and reading previous posts. Spin is not tolerated on THIS forum.
MG

Hello Silly Sally

Am about to go out in a short while but will have a look at this question of what support the NHS and SS are still supposed to give while a dispute is ongoing.

VM has given a very good post in last couple of days about the position regarding social services challenging NHS decisions not to fund. Probably the best answer yet on this topic; its cleared up the issue in my mind.

Back to your point all I can say at this point is that from the standpoint of social services they are still supposed to continue to provide services while a dispute is ongoing. Will have to check that in a book on social law to be fully sure what that entails.

I know with social services there are rules that mean they cant withdraw services and off hand the only thing about funding issues I can remember is that some sort of split between who pays what ( the individual and the SS/LA ) may be worked out prior to a final decision being made or worked out between the different parties.

Very kind regards Ian

sillysally wrote:And your point is what please?

You really mean that you do not get it ??!! ! Then SLOWLY read between the lines, then PERHAPS the penny will drop.

I feel that VM and his "friend" get it. Why not ask them.

FinnMickey wrote:

sillysally wrote:And your point is what please?

You really mean that you do not get it ??!! ! Then SLOWLY read between the lines, then PERHAPS the penny will drop.

I feel that VM and his "friend" get it. Why not ask them.

Sillysally

I will Explain to you, Herr Finnmickey a possible surviver of the SA Is trying to make a disclosure, you know coming out of the closet, Read Between the lines

Hello Silly Sally,

Have been digging around a little ( no not trying to find Steves rat or the abode of our cave troll?) only finding perhaps what we dont want to hear.. If only Steve can find that piece of info!

What I have found:

First care at home: Services must not be withdrawn on the ground of non-payment; instead the debt should be pursued in court as an entirely separate matter.

Next care in residential homes:

provision of accommodation is mandatory if the need is accepted. A persons right to it is independent, therefore of any decision by the local authority to collect contributions.

As with other care services, non-payment is a debt-collection problem.

In principle, the system is simple. It is governed by NAA,s.22, as amended. If a person is not assessed as needing residential care, any provision must be paid for privately. A private payer is entitled to a re-assessment, which could result in entitlement to funded care, however. If the social services department assesses the individual as needing residential care, the authority pays initially, either by directly providing the serv ice or by paying a private or voluntary registered home. But it must under s.22 recover from the service user the amount it has assessed that person as liable to pay, which can range from nothing up to the entire costs.

Any element of the care which relates to medical or nursing care must be provided for free of charge by the NHS and therefore cannot be included in the cost.

So simply put if someone refuses to pay care fees , then because the provision of accommodation is mandatory, then the social services can not withdraw that need for accommodation, either in sum total or in part.
This at least as far as the SS/LA is concerned is what is known as provision, or which has been posted on this particular topic, "support".

In which case in the event of non-payment of care fees the SS/LA would continue to pick up the tab from the care home, but and heres the important bit, by one way or the other reclaim it from the service user later.
Using court action if nothing else failed.

This is taken apart from the last para, from one of the main law bibles for social workers: the 9th edition of LAW FOR SOCIAL WORKERS BY HUGH BRAYNE AND HELEN CARR, on OXFORD PRESS, 2005.

So from this the care home would not need to evict the service user from the home because of non-payment of care fees, but just pass the bill on to social services for them to deal with. It is possible that the social services may if doubtful of its responsibility then pass it onto to the NHS. But the most likely outcome as so many on this forum have found out is that it will be passed on to the service user.

So no they cant take away the care package but yes they will get the money back from the user unless it can be proven that a health care need can be [proven to exist.

This next part from same book speaks of Coughlan: " The main problem seems to arise when a service user falls into the gap between the NHS and the local authority, and a disagreement occurs over who pays."
" Department of Health required NHS authorities to review their eligibility criteria, and to distinguish between care which required specialist care and that which required generalist care. "
" They were told they would have to go into community care. We will see that this was not only disruptive; NHS care is free and National Assistance Act residential care is means-tested. The Divisional Court and The Court of Appeal held that the secretary of state was wrong in drawing up clear distinctions between specialist and general
care, and that the real question was whether a persons needs were primarily for health care or primarily for social services.
The patients needs were essentially health needs. In this case the NHS ended up having to pay, though the Court of Appeal accepted that there could be " no precise legal line drawn between those nursing serv ices which are and those which are not capable of being treated as included in a ( social services ) package of care."

Very kind regards Ian

Thanks a lot Ian. That is very useful (if a bit confusing!). I will try to get my head round it (although most of it is not applicable to us, it seems). But - thanks, good info.
maryjo

patrick11 wrote:

FinnMickey wrote:

sillysally wrote:And your point is what please?

You really mean that you do not get it ??!! ! Then SLOWLY read between the lines, then PERHAPS the penny will drop.

I feel that VM and his "friend" get it. Why not ask them.

Sillysally

I will Explain to you, Herr Finnmickey a possible surviver of the SA Is trying to make a disclosure, you know coming out of the closet, Read Between the lines

LUMMEE ! ! ! ! ! ! !

Hello Everyone

Further thoughts on my last post concerning still providing service and support during a dispute over care fees.

Silly Sally tried to get Steve to come up with his piece to show that both the NHS and SS have to still continue with their care packages.

I havent got anything concrete about the NHS and maybe there shouldnt be anything when you think about it.
In cases that they accept as being their responsibility there is hardly going to be a question of withdrawal of services and accommodation. In those cases that they dont and wont accept responsibility and therefore pass the buck on to Social Services it becomes their problem and not the NHS. I think it was Steve at some point that said the NHS hadnt taken anyone to court for non-payment. And that to my way of thinking is perfectly correct.

When Steve said that neither the NHS or SS/LA could withdraw funding during a dispute. Then Steve is right, if that is to imply totally. Neither can withdraw accommodation even if someone refuses to pay for it. The NHS cant because surely this would involve medical issue and therefore accommodation connected to this. SS/LA certainly cant because it is their mandatory duty to provide accommodation and that is by law.

It is not affected by payment or not. In my post I showed that if this situation did arise and we had a situation where the care home was not getting paid their fees then there is a clear choice of action open to them.
They could attempt to get the payment owned themselves by court action or they could instruct the LA/SS to do it for them on their behalf. What neither the care home or the SS/LA can do is withdraw from the provision of accommodation, just like SS/LA cant withdraw any other service that is being provided.

While this dispute is ongoing again there is a choice of action open to both the care home and LA/SS, they can take the easy one and let it ride until the appeal process reaches its conclusion, or a reasonable length of time has passed before getting tougher in their approach. In which case LA/SS will take over funding, or the care home will just bill it for a later date for the service user to pay later.

Or SS/LA will take over payments for the time being during the dispute period; just how long this will be depends of their agenda or opinion on the matter, and then get very tough.

At the end of the day if the user ( or their representative ) or the care home wont pay/contribute then LA/SS hasnt got any other choice but to fund themselves for what ever length of time is needed.

But be very clear about this unless their is proven eligibility for CHC and therefore the case goes back to being the NHS full responsibility then at the end of the day either SS/LA or the care home will take action to get the money back that they have had to pay out during the dispute. There is no question about this, and if nothing else works then this will most likely result in a court action being taken. As people like SBD and Trooper know only too well. Its still a debt and has my source clearly stated it is a question of debt collection.

The question of lawful debt would only occur if there was something amiss with the contract.
But I am not sure if the care home debt being lawful or not could be said legally to be not decided untill the CHC process end had been reached. The simple way of looking at it would say that it cant be termed to be a lawful debt until CHC has been totally denied by the NHS. If that was the case then the NHS would be responsible still for funding and not the SS/LA. That seems logical to me but if that is legally true I am not sure?

This may be the reason why some care homes and individuals have sent the care home fees bill back to the NHS and not SS/LA for payment when in dispute. And may have been ( along with the better financial climate ) in the past the reason why people got away by refusing to pay care home fees without being taken to court?

Hope this is reasonably clear and is of help.

Very kind regards Ian

Hello VM

I always look forward to hearing your comments on anything I write, it is vital that unclear or incorrect points are looked at and put right. Thats what real debate is about and it is vital that we are precise in what we are saying.

I am glad you brought up the case of the NHS Foundation Trust taking someone to court and that is something I need to be aware about and that the NHS have in fact acted in this way. I am very aware of the power of the Court of Protection to act in cases like this. I have a document that outlines what constitutes not acting in the donar ( the title term they use for patient/individual ) best interests. And not paying care home fees is one of them. I am pretty sure you have brought this case up before and I should have remembered it.

There was maybe in 2006 ish a case up in South Cumbria that involved ( I am working just on memory here: so not facts ) someone challenging a PCT over care fees possibly for about seven or eight months stay in a home on the grounds that the defendent hadnt agreed with the placement. I think that was in the Westmoreland Gazette and possibly the Lancaster Guardian. The challenge failed.

Very worrying is the growing involvement of the Court of Protection in matters relating to CHC. I made no reference to this in my post, this was a error and I should have done. It is a court action so the end result that I was speaking about in my posts is the same.

What I am trying on one hand to show was that at the end of the day if care fees are not paid then court action is the most likely outcome and of course the COP action is a part of this.

On the other hand I was trying to show that they cant withdraw lets call it the care package ( the provision of accommodation ) if because of a dispute the care fees are not being payed. Also that ( and I am speaking mostly of the SS/LA ) at the initial stage ( providing they dont go straight to either a oridinary court or the COP ) SS/LA can fund the care package.
But that all of that money paid by the LA/SS will have to be paid back to them ( unless eventually CHC is granted ) by the person in the care home or their representative. If it isnt then certainly court action is the most likely outcome..

As for the three different scenarios are concerned and I speak for myself and not of course for Steve.
In the first example I would probably have fought it for so long but certainly would not have gone the full way when advised not too or when it became obvious that the cost was going to be so great.

Second example: if the relative or attorney stops paying and then gets threatened with the COP. Payment should be resumed.
Third example: still the same unless the self-funder stops payment, but again if the relative/attorney is put into such a position where it would appear that action would be taken in the COP then payment should be resumed.

Was the Daily Mail case the one where the person was evicted onto the car park in Snow. If so I think I have it on file?

The provision of Accommodation being mandatory relates to THE NATIONAL ASSISTANCE ACT,s22, as amended, so unless that now different thats law.

Services must be not be withdrawn because of non-payment comes from a DOH circular 2001. Which probably is out of date. I have looked at this again and I think it does only relate purely to community care at home? And therefore isnt related to care home packages at all. Wonder if this is where the confusion starts from?

Yes its vital we get references right VM. Please keep checking what I write.

Very kind regards as ever Ian

IAN/VM - I'm following your excellent points with interest.

Ian comment: "I havent got anything concrete about the NHS and maybe there shouldnt be anything when you think about it.In cases that they accept as being their responsibility there is hardly going to be a question of withdrawal of services and accommodation. In those cases that they dont and wont accept responsibility and therefore pass the buck on to Social Services it becomes their problem and not the NHS.
What about Scenario 4:
NHS retrospectively agree CHC for the period from leaving hospital up until the day they move out of residential home having been given notice, due to police having to be called in on a number of occasions for going missing and prior to the CHC being agreed, SS advised the necessity for a locked environment.
From the day of moving in to the locked environment with dementia trained staff and qualified nurse CHC has been refused.
A few years later Funded Nursing agreed, again retrospectively, backdated to day of moving into the locked environment.
The point that drives me crazy is the simple fact that only one thing changed on moving into the locked environment - Mum couldn't get out - her health did not miraculously improve, it couldn't Alzheimers is a degenerative disease that nobody recovers from. A Consultant diagnosie of AD was made in the hospital.
I won't ramble on but your combined thoughts would I am sure be helpful to take on board for forthcoming SHA Review.
Thank you both - you are both so passionate about helping "us" and the manner in which you communicate with each other is admirable.
Enough already...........thanx
SBD

SBD, Ian and all

I'm just posting this as a reminder to myself to come back to it:

'funding without prejudice'.

Out for rest of the day, so .... back some time or other!!

VM

Thank you both for your research and consideration of these very real issues. I have today posted on another thread what I have experienced at the point at which these difficulties start, and asking for suggestions on how we tackle the realities early on.

Once again not as a confrontational act, but in the hope we can elicit the most informed way forward for us all.

Victoria Meldrew wrote:

ian wrote: Hope this is reasonably clear

What follows may be for Steve to comment on in detail, rather than just humbug and unlawful speak.

What do you mean by this? Whose humbug and "unlawful speak" ! ! ? ? ? ? (Where do you get this sub-1984 language from? )

Are you seriously suggesting that Esquires gives out phoney information? (Not for the first time). Well your big mate Patrick/Mick has just congratulated Esquires for helping to achieve his aims? Go and read it. So this character got what he wanted through fake info, am I right? So where does this leave you and him?

finnmickey wrote


What do you mean by this? Whose humbug and "unlawful speak" ! ! ? ? ? ? (Where do you get this sub-1984 language from? )

Are you seriously suggesting that Esquires gives out phoney information? (Not for the first time). Well your big mate Patrick/Mick has just congratulated Esquires for helping to achieve his aims? Go and read it. So this character got what he wanted through fake info, am I right? So where does this leave you and him?

I Shall Say This Only Once


Yes i did Thank Stephen Squires For his help (Glad that you do Read some posts through)

But what you missed ya Numpty, The fact i wasn't getting anywhere with Stephens strategy. I Took the mental health Act rout, Challenging the unlafullness of the criteria wasn't a winning formular, But yes His letter writing and phone calls were very helpfull, There are things i could say but i'd rather not

So Finnmickey Stop with all this crap you keep spouting and play a more helpful role on this forum with something constructive, Like helping others instead of Flamming member who you cant agree with Because their substantiate information Differs from yours, Move into the now Finnmickey Stop relying on out dated information (If you know how to )


Mick

Please listen to Mick, FinnMickey - else it'll start all over. The "help" of a person on this forum has impacted very badly on my own life as well as of others. I'm trying hard to move on please help by stopping your rantings which are sorely tempting me to go off on one myself which would serve only to make me ill.
Thank you.
SBD

Hello Struggling but determined

Lets all work hard together to make sure that this situation doesnt occur again. No matter who is at fault;lets move forward and lets review everything we do and everything we know. No one is perfect, we all make mistakes; we mis-read something, we believe something we have gathered in little bits and pieces like conversation in a shopping centre.

Very kind regards Ian

Can we go back a little please:
"SBD, Ian and all
I'm just posting this as a reminder to myself to come back to it:
'funding without prejudice'.
Out for rest of the day, so .... back some time or other!!
VM "
Look forward to hearing from you on this VM
SBD

SBD,

I'm up to my eyes at the moment dealing with 'legal' stuff connected with my own ongoing case.

Shall try to find time soon. I may have to just post links to things, without being able to digest the relevant bits for you.

When's your deadline for this? I know you said you've got SHA review soon, so give me a timescale.

VM

No urgency VM. I'm awaiting ALL of the info from the pct as opposed to just the DSTs that I already had.
Don't worry.
SBDx

Thanks, SBD, much appreciated. Am up to eye-balls but still working on it - bit by bit - so it'll be scrappier than usual! (Whoever invented the telephone should be shot (too late, I guess!) - especially when 'they' want you to jump to attention to sort out their cock-ups - or should that be cocks-up!)

Shall start a new thread called 'something or other' 'cos I've gone off this particular thread.

Also, it may be a long (and boring ) thread because I'll try and pull together a few things that I've had in the pipeline. Not all relevant to you, SBD, but just a whole load of 'things' that get lost when other things arrive to be dealt with.

VM

FinnMickey wrote:

patrick11 wrote:

FinnMickey wrote:

sillysally wrote:And your point is what please?

You really mean that you do not get it ??!! ! Then SLOWLY read between the lines, then PERHAPS the penny will drop.

I feel that VM and his "friend" get it. Why not ask them.

Sillysally

I will Explain to you, Herr Finnmickey a possible surviver of the SA Is trying to make a disclosure, you know coming out of the closet, Read Between the lines

LUMMEE ! ! ! ! ! ! !

Ah, Finnmickey

At last we know what tribe you are from, Primative indian origin (LUMEE) from north carolina, But i dont remember them being involved with the SA Germany in the 30/40s But then you could be the special one??

Mick, it's also a very boring, bland and tasteless noodle soup. And when you've tasted it, you're even more likely to say CRIKEY, get that out of here.

That's where CRIKEY and LUMMEE come together - a boring, bland and tasteless NOODLE combination.

Does that sound familiar? Anyone know who I'm talking about? Yep, thought so.

Now, let's all get back to the important issues of life and ignore the boring, bland and tasteless noodle.

PLEASE.


VM

patrick11 wrote:

FinnMickey wrote:

patrick11 wrote:

FinnMickey wrote:

sillysally wrote:And your point is what please?

You really mean that you do not get it ??!! ! Then SLOWLY read between the lines, then PERHAPS the penny will drop.

I feel that VM and his "friend" get it. Why not ask them.

Sillysally

I will Explain to you, Herr Finnmickey a possible surviver of the SA Is trying to make a disclosure, you know coming out of the closet, Read Between the lines

LUMMEE ! ! ! ! ! ! !

Ah, Finnmickey

At last we know what tribe you are from, Primative indian origin (LUMEE) from north carolina, But i dont remember them being involved with the SA Germany in the 30/40s But then you could be the special one??

COR ! ! ! ! ! ! ! !

FinnMickey wrote:

patrick11 wrote:

FinnMickey wrote:

patrick11 wrote:

FinnMickey wrote:

sillysally wrote:And your point is what please?

You really mean that you do not get it ??!! ! Then SLOWLY read between the lines, then PERHAPS the penny will drop.

I feel that VM and his "friend" get it. Why not ask them.

Sillysally

I will Explain to you, Herr Finnmickey a possible surviver of the SA Is trying to make a disclosure, you know coming out of the closet, Read Between the lines

LUMMEE ! ! ! ! ! ! !

Ah, Finnmickey

At last we know what tribe you are from, Primative indian origin (LUMEE) from north carolina, But i dont remember them being involved with the SA Germany in the 30/40s But then you could be the special one??

COR ! ! ! ! ! ! ! !

MOOMBA ! ! ! ! ! ! !