Where is it laid down that social services MUST challenge the NHS over any patient turned down for FFCC and who passed to them? Is there such a direction? Is it somewhere in CRAG or elsewhere?

I need an actual point of law or something that is written down that they must abide by and by written down I mean from an authorised source or point of reference.

many thanks

SLB,

Social Services are not required to challenge the NHS over 'any patient turned down' for full CHC funding.

The SS should, however, challenge the NHS over any patient turned down for full CHC funding once the SS/LA has been notified via section 2 of the Delayed Discharges Act that the patient is ready for discharge to 'community care' but not eligible for CHC funding - IF the SS is of the opinion that that patient should be the responsibility of the NHS, and only once section 2 notification from the NHS has been completed. That's the point at which the NHS is saying to the LA/SS departments that this patient is in need of 'community care' but is not eligible for CHC; so that's the point at which the SS should challenge it if the SS/LA thinks otherwise about that 'eligibility decision'.

If the SS/LA are of the opinion that a patient on discharge from hospital should be in receipt of CHC, they are required to challenge the NHS upon receipt of that section 2 notification.

If the SS/LA are of the opinion that the patient has been assessed correctly as not being eligible for CHC, they are not required to challenge it.

It's all in the Delayed Discharges Act.

Here's the Delayed Discharges Act 2003 - search within it for 'dispute resolution' and/or 'Section 2'.

http://www.legislation.gov.uk/ukpga/2003/5/contents

(Later links are available but I'm tired!!)

Nothing to do with CRAG at all.

But if someone is not in hospital, so nothing to do with the Delayed Discharges Act, but still in need of care and with only the SS in their immediate frame, it would require the SS/LA to go through the CHC procedures before doing anything at all, I would think. Then, if the SS still was of the opinion that the person should be in receipt of CHC, the SS would need to challenge the PCT. (Same, only different.)

Hope that the above link may be the authorised source/point of reference you need.

VM

Here is the link for the 2009 version - it adds extra reponsibilities that they have to consult with the patient/carers and record the results - most of which is ingnored anyway if they can.

Cut and paste the link.

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_106178

Thanks to you both for the replies. I have no idea what paperwork was issued when mum was discharged from hospital. She's been self funding in the nursing home and it's now at the stage where her assets have come down to the upper threshold at which SS step in.

Leaving aside the argument that social services are ultra vires whatever as Steve says - the care home still needs to be paid. So before SS start paying, what checks must they do at their end to ensure the client is their client and not thjat of the NHS.

I find it quite unbelievable that the care home can just send a bill to SS asking for money - assuming that's what happens.

SLB, just wrote a long reply to you but the crap software of this forum denied me the chance to send it. (Someone somewhere will no doubt be cheering at that comment from me but ... sorry, can't resurrect that now!!! Lessons will be learned .... eventually.)

It went along the lines of you don't need to know what paperwork was involved UNLESS you ask for a copy of it.

Then it went along the lines of forget all about 'ultra vires' = it won't get you anywhere at all.

Then it went along the lines of the care home can't just send a bill to the SS or the PCT these days. That worked for some in the past, but will not work today or tomorrow.

Bet you're all glad now that my long and boring post was deleted by the crap software of this forum!!!

VM

starlightblue wrote:Thanks to you both for the replies. I have no idea what paperwork was issued when mum was discharged from hospital. She's been self funding in the nursing home and it's now at the stage where her assets have come down to the upper threshold at which SS step in.

Leaving aside the argument that social services are ultra vires whatever as Steve says - the care home still needs to be paid. So before SS start paying, what checks must they do at their end to ensure the client is their client and not thjat of the NHS.

I find it quite unbelievable that the care home can just send a bill to SS asking for money - assuming that's what happens.

High SLB - just about to go out but promise I'll come back later to this - we have just been through this one.

I assume there is no house to take into account?

All the best

maryjo

Thanks VM.

Hi MaryJo - yes there is a house involved but it is an extremely complicated case that is going to end up in court to determine her equity as it looks like she is owner in title only as she has never paid a penny twards it and all this can be proved but SS refuse to accept it.

starlightblue wrote:Thanks to you both for the replies. I have no idea what paperwork was issued when mum was discharged from hospital. She's been self funding in the nursing home and it's now at the stage where her assets have come down to the upper threshold at which SS step in.

Leaving aside the argument that social services are ultra vires whatever as Steve says - the care home still needs to be paid. So before SS start paying, what checks must they do at their end to ensure the client is their client and not thjat of the NHS.

I find it quite unbelievable that the care home can just send a bill to SS asking for money - assuming that's what happens.

Firstly, as I have said here before, I think our Social Services / L.A. is better than many but I can only speak as I find. They seem helpful and flexible (within their ‘rules’).

Secondly, you will have to accept that you will be required to do a means test, I think.

Meanwhile, we kept paying the care home, knowing that it would be sorted and not wishing to antagonise either the care home or SS.

I like numbers, so I was aware that my friend for whom I have POA was going to reach the threshold many months before he did. I wrote to SS informing them of this, and also of his house for which I was making a special case (which they granted and consequently disregarded it). Their response was that I should write to them just before my friend got down to the threshold. This I did – together with an income and expenditure projection. I then completed the financial assessment form, even calculating the current value of investments. This resulted in them sending me their calculation and the figure that they would contribute to my friend’s care. All was correct, the care home was informed and some overpayment due to time lapse was refunded to my friend by the home. It all went very smoothly. Their contribution will reduce, I assume, each financial year as I complete further financial assessments – until he reaches the lower threshold. So, our SS pay the care home their part of the fees direct and we are invoiced by the care home for the balance.

Regarding your mum’s house: I suspect this will complicate things for you and I would expect your SS to take this into consideration. Unless you can show that someone is living in it who qualifies for the obligatory or discretionary disregard (a partner, a close relative over 60 years of age, a previous carer aged over 60 - not sure of the criteria but it will be available from your SS).

Checks on eligibility for CHC: this is where our SS fell down; they did not seem to do any checks. Even though my friend got two ‘severe’s’ at the DST stage. I did, on several occasions, ask them to check whether they were funding my friend illegally – but got no response. I suspect that this was because they couldn’t be bothered as she was self-funding. This may well come up again soon as we are about to go to SHA Review (and I expect to be awarded CHC funding on the basis of the two ‘severe’s’) – which will complicate things financially!!

Postscript: I have had serious run-ins with social workers (and there will be more to come). The people I have dealt with regarding my friend's finances are part of the LA financial assessments team - not sure whether they are SS or LA. Whatever, the SS would be involved, I am sure, but probably not the Social Work Department.

Many thanks MaryJo for your reply.

The Soc. Servs I am dealing with have been prevaricating for over 6 months regarding ignoring the house. Even though now the other owner has nowallowed his neice and her baby to live there. There's a lot of complex things which I won;t bore the forum with and which I only found about last year. The issue of the house is likely to go to Court.

I did co-operate over the means test from an early stage after mum went into the care home. My reasons for doing so I posted in earlier posts and even a dedicated thread which was later withdrawn. I felt then, as I do now, that the clients happiness and stability is paramount and MUST come first. Not paying jeopardises all of that.

I know paying the fees before the NHS dispute is finalised it is not for everyone but I think it was the right decision. Here's why -

Leaving aside my battle with the NHS and the battle with social services over the house which has taken up all of last year, I also had to contend with the emotional side of getting my mum over the loss of her independence and accepting the big step of being in full time care.

After almost a year of heartache and some depression on her part too - she is now, in the last month or so seeming to come out the other side with a more positive attitude. If I didn't know better I'd think she was on the happy pills! (She's never had happy pills.) Everyone, staff and family have seen how much happier she now is. She has definitely settled down. She has now made a few friends in the care home and even a gentleman friend with whom she spends a bit of time. Romance would be wonderful but it's just a friendship even though they get teased a bit!

I feel quite emotional about seeing how much better she is compared to all through last year. I am no longer greeted with 'oh thank God you're here' and a tearful mum. Instead she is almost back to the mum she was before all this. The home have been brilliant with her and one of the relatives of another 'inmate' is fabulous at putting on little parties and things' She wants for nothing.

Going back to fees - there is NO WAY I would ever jeopardise her placement by not paying the fees. Her happiness is and always has been paramount to me. And now she is at last appearing to be happy. Before she reached her turning point I always felt the home she is in was very good. Even though it was not of our choosing and mum went straight there from hospital via Soc.Servs.

Good homes are like hens teeth and given the adverse pubicity some of them attract I am now feeling we are very lucky to have her where she is. I can also take comfort that when the money runs out she will never have to move as it comes into the amount that Soc. Servs would pay for.

Thanks again for the replies.

Starlightblue: excellent news about your mum. I've seen it happen with another friend of mine.

You stress the needs of your mum - that is admirable, even if it is common amongst Forum members. BUT I want to say, there is YOU in all this, too. Take care of yourself as well. Remember that if you collapse others will suffer, so don't make a rod for your own back. (I don't get the impression that you are!)

Thanks MaryJo.

I feel much happier as mum is happier. I no longer dread walking into the care home.

The dispute with the NHS is out of my hands at the moment and with the Omb. so time for a breather on that.

Unfortunately the problems with Soc. Servs is not and I am trying to do some preparation work now for a potential court battle. By doing some of the leg work it means I can hopefully keep the legal fees down as the lawyer will have all the info. they need.

take care

Hi starlightblue, good to hear from you.

I was one of the people who toyed with the idea of withholding fees on the advice of others when i first joined the forum.

But i still remember your sound advice that mums needs MUST be paramount and like yourself we were more than happy with the home and it was also in the bracket the LA were prepared to pay .

We are in a bit of a strange position as the home is actually owned by the LA but they agreed to charge only a provisional charge until we agreed to a financial assessment (which i wasnt about to allow) or gained CHC. Anyway long story short they got fed up of waiting and decided to send us bills for full amount so then i stopped paying and asked my MP to step in which thankfully she did and the LA have agreed (for now) to back off until things are sorted with the NHS.

However like yourself if they start to demand payment because they are fed up with things dragging on then i will pay and claim back if and when i win FFCHC for the first period of mums stay because as you said it is mums happiness (and ours) that is important.

The only thing that we may have to move mum for is because they can no longer meet her nursing needs(its residential) and not for financial reasons, but i`m happy to say that they seem to br meeting those at the moment with community nursing thankfully.

Good luck with the court battle and thanks for the sound advice.

VM Your posts are NEVER boring.....always informative: always factual when necessary: facts confirmed by links for further study: always educational even when humerous: and you are indefatigable in your efforts in assisting others less knowledgeable than yourself: you are always on the side of the underdog: you show kindness and understanding to all of us who are less knowledgeable and less educated than you: Thank you.
MG

This whole issue has recently been explored on this forum when I stated the vital points to bear in mind are: NHS Trusts must demonstrate that they applied the ‘St. Helens’ judgement (Case No: C1/2007/2121), heard on 23rd. June 2008 before the Court of Appeal) which quotes Lord Woolf in 'Coughlan' "eligibility criteria cannot place a responsibility on the local authority which goes beyond the terms of section 21 of the 1948 National Assistance Act".
In attempting to transfer patient care to social services or patients themselves, NHS Trusts seek to impose a decision contrary to the judgement in the ‘Booker’ case CO/9781/2010 where, stressing the principles underpinning the NHS, Judge Mark Pelling ruled “Access to NHS services is based on clinical need, not on an individual‘s ability to pay”. Ruling Oldham PCT’s stance unlawful, he added “there is nothing within the NHS National framework that suggests that financial considerations are relevant to the provision of future (i.e, long term) healthcare”.
Judge Pelling ruled that "Ms Booker is just as entitled to free NHS care as any “independently wealthy” patient.
Clearly an NHS Trust cannot unilaterally withdraw funding and deem a patient to be a 'self funder' simply because they can afford to pay! This would also breach Art. 6 of the Human Rights Act.
If Social Services are involved in patient care they cannot claim payment for care services which they are not lawfully empowered to provide: Apart from the law, they are in breach of their own rules if they ignore:
Local Authority Circular LAC(93)10 - which gives directions from the Secretary of State defining what Social Services can actually do.
'The Secretary of State hereby directs local authorities to make arrangements in relation to persons provided with accommodation under section 21(1) of the Act for all or any of the following purposes-
(a) for the welfare of all persons for whom accommodation is provided;
(b) for the supervision of the hygiene of the accommodation so provided;
(c) to enable persons for whom accommodation is provided to obtain-
(i) medical attention,
(ii) nursing attention during illnesses of a kind which are ordinarily nursed at home, and
(iii ) the benefit of any services provided by the National Health Service of which they may from time to time be in need, but nothing in this paragraph shall require a local authority to make any provision authorised or required to be provided under the National Health Service Act. .'

By no stretch of the immagination can it be claimed that patients who requires 24/7 access to nursing care suffer 'illnesses of a kind which are ordinarily nursed at home'.
S21 of the National Assistance act is readily available but the crucial point is that this act DOES NOT permit social services to provide nursing care
As Lord Woolf said in 'Coughlan' "Here the needs of Miss Coughlan and the fellow occupants (of her Exeter care home) 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 is incidental and ancillary to the accommodation'. To clarify this Lord Woolf added his remark concerning Miss Coughlan's care entitlement under the Health Act. In view of the judgements quoted, social services departments clearly have no lawful role to play in meeting continuing health care needs. If they are providing accommodation which is not otherwise available any care they do provide must be incidental and ancillary to the provision of that accommodation. Where there is a 'health need' the NHS has a statutory duty to provide the accommodation to enable them to meet that need. Note that the forgoing dissertation is not my 'opinion' but FACT which can be readily confirmed. Steve.

Steve,

Thanks for that full reply which I do understand. However, what is the position where a PCT says that Booker is an irrelevant case to cite here as they have assessed eligibility on the DST criteria alone (which they cite as lawfully drafted under secondary legislative powers of the secretary of State), and found the claimant ineligible. What if the PCT maintain that financial considerations and reference to Booker are therefore not relevant because whether the PCT does not owe the claimant duties because he could fund his own care has never been considered.

Further, is there an answer to a response that a need for 24 hour care per se does not indicate a health need and certainly not a primary health need? ie The PCT might cite para 4.3 of the Continying Healthcare Practice Guidelines 2010 which says;

Primary Health need is not about the reason why someone requires care or support, nor is it based on their diagnosis; it is about their overall actual day to day care needs taken in their totality. Indeed it could be argued that most adults who require a package of health and social care support do so for a health related reason... it is the level and type of needs themselves that have to be considered when determining eligibility for NHS continuing healthcare"

I raise these points because they remain a real issue in my own case. I appreciate the latter position arises solely because the DST eligibility bar is set far higher than Coughlan idicates it should be - but it is a fact and happening now. The point is how to get round it?

Any help or opinions from all here would be gratefully received.

I also know and have argued that "Primary Health Need" has no legal definition and cited their own Guidelines which state this. I have also pointed out that the phrase is at variance to the actual and "golden" meaning of "primarily a health need" in Coughlan.

Neither points have got me any further. The DST stands, and I have found that seemingly all one can hope to argue successfully in many cases appears to be breaches of its' procedure and application, and which will provide a partial solution in my own case, but is still far from fair.

My view, given the several successful cases I have represented over the past two years since I retired fron the Department of Health, is that Social Services staff have not been properly trained to undertand their advocacy role in these circumstances. They don't understand the limitations placed on them by Coughlan and so fall in with the position taken by the PCT. They are "taken short" when I point out to them that they have no role in decision-making about elegibility, other than to say that they are, or are not responsible for the health/medical needs of the individual. When confronted with the full consequences of a positive response they have backed down, leaving the PCT to take the rersponsibilty, as they rightly should.

AllanR wrote:My view, given the several successful cases I have represented over the past two years since I retired fron the Department of Health, is that Social Services staff have not been properly trained to undertand their advocacy role in these circumstances. They don't understand the limitations placed on them by Coughlan and so fall in with the position taken by the PCT. They are "taken short" when I point out to them that they have no role in decision-making about elegibility, other than to say that they are, or are not responsible for the health/medical needs of the individual. When confronted with the full consequences of a positive response they have backed down, leaving the PCT to take the rersponsibilty, as they rightly should.

VERY interesting and helpful post AllanR. Thanks. I'm sure others will respond.

For me, there is a delicate balance to be kept with a SS department that has been good in some respects. I don't think we will lose the battle with the NHS for CHC but if we do, I will put much more pressure on our SS.

And a warm welcome to the Forum, AllanR.

Thankyou for the welcome. My poimt is that it would be much easier for individuals and their relatives who are applying for CHC if Social Services were to say "This far and no further" in each case, as relates to their own involvement. If the point of law is the "incidental and ancilliary test" then Social Services should say in each case which needs take them beyond that limit. That would clarify the position for PCTs about the "Primary Health Need". I have found this approach helpful in the past.

Welcome from me too, AllanR. I think your experience will be very useful to everyone here.

As maryjo says, there are times when it's wise not to antagonise the SS, especially if you have a good relationship with the SW involved. So your advice on reminding the SW at the outset that you'd like them to detail to you, or the applicant for CHC, the full extent of their limitations is a valid starting point.

VM

Welcome! I completely agree. In my experience, raising the s21 NAA point and relating that to some of the more extraordinary assertions and conclusions of the CHC/MDT assessment has indeed led to some Damascus moments around funding for the SS involved in my case.

It has become increasingly clear to me during this that SS follow a set process from pre discharge to placement which they rarely question and which is PCT led. Unfortunately it is often full of holes and if left unchallenged costs the SS and the hapless individuals caught up in this thousands.

Thorough training is long overdue and would doubtless resolve some of their own funding crisis.

'Silly Sally' - as I have said many times: NHS assessors and review panels invariably point out that they are not empowered to consider 'legal matters'. In that case they CANNOT determine the question of entitlement to NHS funded care because that is a matter of LAW not medical opinion and thus by their own admission, clinicians cannot arbitrate or determine questions of law! Furthermore entitlement to NHS funded care has been a core principle of the National Health Service act since 1946 and remains intact. In fact they admit as much in their 'National Framework', on their own website and in the 'NHS constitution'. By refusing care for those who are so ill as to require 24/7 access to care services they are ignoring their own published rules and substituting a set of arbitrary tests and criteria for the law, thereby depriving patients of their statutory rights by adopting a policy of discrimination against one particular sector of society.
ALL those attending review panels should TELL the panel that they will NOT accept an arbitrary decision which deprives British Citizens of their statutory rights.

Incorporate the forgoing argument in any letters in pursuit of any NHS CC claim or at any and all meetings with NHS staff and managers. EMPHASIZE that you will bring a claim for exemplary damages against those who discriminate against (your relative) on the basis of a long term care need and any attempt to deprive them of their statutory rights. Steve.

Silly Sally: I am still searching for the quotation ruling that neither the NHS nor social services can withdraw funding leaving a patient 'without support' as I have previously stated in another thread.
My post above may be helpful though. Get tough with them: they are legally in the wrong and they know it. Threatening court action against individual NHS and SS staff will concentrate minds. Many cases are settled out of court because they don't want another 'Coughlan' but it is essential unless you have the experience to be represented if you do end up facing a claim by social services. They will employ counsel regardless of cost - so should claimants, and there's ample evidence that once they realise they will face a vigorous defence they will quietly withdraw and pay up. Those who ignore the advice of the Campaign's solicitors and attempt to mount their own defence as a 'litigant in person' are likely to suffer the consequences! Steve.

Well, that latest contribution from Esquires puts me in my place. I don't see how I can contribute further.

AllanR wrote:Well, that latest contribution from Esquires puts me in my place. I don't see how I can contribute further.

AllanR: Esquires' contribution is just one. Yours is just one. Both are valuable. The rest of us will weigh up what you each have said. I would guess that many of us would choose to follow your advice.

So please continue to contribute.

(In any case, debate is good!)

(Cross-posted with SBD)

Esquires wrote:Threatening court action against individual NHS and SS staff will concentrate minds.

Steve, with respect all they do is laugh - and it may also concentrate their resolve on making things protracted and more difficult.

I'm sorry, but I think this is misleading people, Steve.

NHS assessors and review panels invariably point out that they are not empowered to consider 'legal matters'

All they are saying is that if you wish to challenge the lawfulness of the NF, and the DST and the MDT etc etc, that falls outside their remit. Quite right too, IMHO! It is stated quite clearly in all the NF documentation that the panels etc are not allowed to deal with the lawfulness of the whole procedures handed down by Acts of Parliament, by Secondary Legislation, by Directions provided by the Secretary of State and others. They are,however, empowered to assess for CHC eligibility.

I am still searching for the quotation ruling that neither the NHS nor social services can withdraw funding leaving a patient 'without support' as I have previously stated in another thread.

You will not find it, Steve.

Those who ignore the advice of the Campaign's solicitors and attempt to mount their own defence as a 'litigant in person' are likely to suffer the consequences! Steve.

That is extremely unfair, Steve, if you don't mind my saying so, and likely to be met with a fair bit of criticism, especially by those forum members who have been given the run-around by assorted people.

Cross-posted with quite a few of you - sorry!!
AllanR: please stay!

VM

AllanR wrote:Well, that latest contribution from Esquires puts me in my place. I don't see how I can contribute further.

Of course you can, Ten/Twenty heads are better than one, Between us all we will find the way
To Justice for all, AlanR with your background and insight you are very much needed here to give all members the benifit of your Experience

Kind Regards

Mick

Hello Alan R

You are just the sort of person we do need and you can contribute so much with your own experience and knowledge.
No way should you think you cant contribute after reading one of Steves posts. Your experiences and views are as good as any one elses on this forum.

Welcome to the forum.

Very kind regards Ian

Please stay and contribute Allan. All contributions and recent experience backed by fact are invaluable to us all.

Steve. Thanks for telling me again. Unfortunately the "I shall say this only once" technique you kindly employed on my behalf didn't budge the PCT concerned; which is why I am stuck with it.

I firmly believe threats should only be made where they can be carried out, and there certainly isn't the cash in my rel's case to squander on an action which may or may not be winnable - or even settle and cover those costs. Not lily livered - just a pragmatist who has turned attentions to the SS side of things to make the best of the situation.

Hello Steve and everyone

I have been looking for your "quotation " on and off for three days. You will probably be aware of my posts and VMs on that other thread so you should be aware of the interchange of views expressed there.

With respect it isnt a "quote" alone we need it is a official statement that makes very clear that during a dispute between a care home resident/family and either the NHS or the SS/LA funding will continue to be paid either by the NHS or the SS/LA.

I havent found anything to support this, I have found nothing for the NHS and regarding SS/LA the only funding they would cover would be for a dispute between a PCT and SS/LA, but it would appear not for a individual!
In this case if the dispute couldnt establish a case for CHC then the care home resident or representative would have to pay back that money to SS/LA.

From what I have come to understand, however, SS/LA would still have to provide accommodation and services while the dispute was ongoing, but not actual money funding. This comes about because 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.
All of this is governed by The National Assistance Act,s22, as amended.

The care home could evict the non-paying resident but SS/LA would then have to by law provide alternative accommodation because of the above.

Where SS/LA cant withdraw services/care programmes ( at least not totally ) during the course of a dispute is concerning community care at home; they stilll have to fund. You are not confusing this with non-payment of residential care fees are you? They do have to still provide support for people living in their own homes.

You must have some ideas where it comes from? If you give me some clues I am prepared to search for you; I know how busy you are and if I can help clear this up once and for all, I am only too happy to do so.

I am not so sure about threatening them with court action in view of the potential costs if taken to court and one was to be defeated. SBD is a classic example of why it should be the very last option and then only if the situation was desperate, ( and there was little or no choice ). Golden rule number 1. Avoid being taken to court.
Golden rule number 2: never get into a position where you are taken to court. Golden rule number 3 Always employ other alternative methods to resolve the issue.

Very kind regards Ian

AllanR wrote: 'Well, that latest contribution from Esquires puts me in my place. I don't see how I can contribute further'.
- That was certainly NOT my intention and I hope that we will continue to receive the invaluable advice and information you are clearly able to provide through your past connection with and inside knowledge of the DoH. All we ask is that the government direct the NHS - and DoH - to comply with the letter of the law and provide NHS care 'free at the point of need' for which every British citizen has already paid! Steve.

I can assure everyone that a belligerent approach DOES work! Regardless of what their internal rules may say, they CANNOT disregard the law of the land. They cannot rescind a citizens statutory rights than can any other service provider. Tell them that you will take legal action against them and see their reaction when a writ arrives from your solicitor! Even a 'solicitors letter' may do the trick. They will not ignore you or laugh when you convince them that you mean business!

Obviously it is essential to first confirm that you have a 'cast iron' case before commencing litigation! That's why nhsCCC has its own solicitors and why counsels opinion is necessary. They will also advise on the matter of costs should the case be lost. nhsCCC members of this forum have gone down this route and had the DoH settle literally 'on the steps of the court' because the claimant ensured that all the correct procedures were followed and they didn't attend court without proper legal representation. Steve.

With respect, I feel a sense of deja vu coming on, and see a number of unanswered emails languishing in my out and sent box.

Esquires wrote:Silly Sally: I am still searching for the quotation ruling that neither the NHS nor social services can withdraw funding leaving a patient 'without support' as I have previously stated in another thread. Steve.

Steve, please ask the Campaign Solicitor to come up with this quotation/ruling/reference. As a matter of urgency. If they are experts in CHC, they must have that reference - and the appropriate web link - at their fingertips if they are advising on CHC matters of law.

I have trawled for hours - days even - and have never found it. The only reference I have found is that during a dispute between two 'authorities' - PCT and LA - funding that is already in place should not be removed. But that's not what you have been advising about. So this reference is urgent now.

Esquires wrote:I can assure everyone that a belligerent approach DOES work! ....

Obviously it is essential to first confirm that you have a 'cast iron' case before commencing litigation! Steve.

Steve, that approach MAY work occasionally - but NOT ALWAYS and probably only for the very few. Otherwise people would not be faced with huge court costs when their approach failed miserably.

As for confirming that someone has a 'cast iron' case - what does that mean? You repeatedly post that every older person who moves into a care home primarily because of their health is a 'cast iron' case according to the law of the land. How, according to your theory, does someone confirm that they have a cast iron case?

VM

Although where practicable I attend review panels as a claimant's advocate I cannot represent anyone in court as I am not legally qualified to do so. If you were ignored by the court then this only reinforces my advice to anybody lacking experience as a 'litigant in person' to obtain legal representation . You are well acquainted with the campaign solicitors but I am not privy to the advice you obtained from them or from learned counsel. You cannot hold me responsible if you ignored that advice!
You are well aware that the solicitors I recommended are 'nhsCCC' appointed and their details have already appeared on this forum.
I have used my suggested approach with several review panels which has resulted in several successful outcomes, some of which have been reported on this forum. I believe that 'Mick' will confirm that he successfully applied a confrontational approach!

VM - NOBODY who lacks the confidence to appear as a litigant in person should attempt to do so. Some forum members have done so most successfully but those lacking confidence in their own abilities are advised to appoint expert counsel convinced that the case is sound. As you well know, legal indemnity insurance is available to mitigate the possible imposition of costs. Again this must be discussed by claimants with their solicitor. The merits of any particular case is a matter for counsel to assess - that's why they are paid for their 'opinion' isn't it? Steve.

Steve, you wrote:

I am still searching for the quotation ruling that neither the NHS nor social services can withdraw funding

Please provide full details of that.

This is crucial to many of the problems people are facing. People have followed your advice - even though you are not legally qualified - and they have trusted your advice. It has so far cost £thousands and thousands, in total. Not to mention the emotional pain that accompanies that financial loss.

PLEASE PLEASE Ask the 'nhs CCC'-appointed solicitor for that reference and web-link as a matter of urgency. Or, alternatively, explain where you got it so wrong.

Steve, I never suggested that people should appear as litigant in person if they lack the knowledge or confidence to do so, so I'm not sure why you addressed your comment to me.

If you're referring to my friend who has now a bill of £23K thanks to a NHS FT taking the case to the Court of Protection: the Judge said that his decision was only concerned with the 'best interests' of the person with dementia and without the mental capacity to handle their own affairs. The Judge was not interested in the ongoing dispute about CHC. So that's another one for you to discuss with the 'nhs CCC' appointed solicitor - so that you take that possibility into account when providing your advice, either here or to those who appoint you to act as their Advocate.


VM

Just a quick question..Where is the exact point where the responsibility is "transfered" to the LA ?

Hello John,

Not sure if this will help you but here goes regardless!!!

If patient person is in hospital and therefore the responsibility of the NHS whilst in hospital, perhaps it would be once the LA accepts responsibility, via the Section 2 notification. That's required to be sent/faxed from hosp to LA if NHS hosp knows that the patient person is already known to the SS/LA or is in need of SS/LA community care services.

Plucked at random (a newly acquired- but clean - habit of mine!!! ):

http://www.devon.gov.uk/dd1(sap).pdf

http://www.plymouthpct.nhs.uk/CorporateInformation/policiesprocedures/Documents/Clinical%20Guidance/Discharge%20xfer%20v1.pdf

If the LA/SS chose not to accept that Section 2 Notification, the LA/SS would need to initiate the local Disutes Resolution Procedure (as is being discussed in another thread at present ).

If the patient person is not in hospital, perhaps there will be no 'transfer' of responsibilites. If in self-funded care home care, but applying for CHC which is refused, the self-funded patient person would not necessarily be transferred. They'd just be in need of a challenge to it all.

Everyone, please, discuss this one!!! It is becoming more important - day by day by day.

VM

Not before the PCT have assessed (at checklist level as a minimum) is the very short answer I think, although as VM writes the LA will quote their duty to work in co operation with the NHS as soon as they believe patient may need support upon leaving BUT the NHS should ask your permission to alert LA before doing this.


I found the Age UK fact sheets very helpful. No. 37 Published in May 2010 AM064 called Hospital Discharge Arrangements outlines the lawful and appropriate entry point of the LA if your rel is in hospital.

http://www.ageuk.org.uk/Documents/EN-GB/Factsheets/FS37%20Hospital%20discharge%20arrangements%20May%202010%20-%20AM064_fcs.pdf?dtrk=true

This factsheet will take you through the S2 notice procedure under The Community Care (Delayed Discharges Act) 2003 and direct you to The Delayed Discharges (CC) Directions 2009 which is states what the NHS should do re CHC assessment before they notify LA.

It also directs you to NHS Continuing Healthcare (Responsibilities) Directions 2009 which applies if the case is not covered by the 2003 Act, or where the patient lives at home or in a care home.

There are other excellent factsheets in this series including one on CHC.

http://www.ageuk.org.uk/Documents/EN-GB/Factsheets/FS20%20NHS%20continuing%20healthcare%20and%20NHS-funded%20nursing%20care%20September%202010%20-%20AM067%20-%20AM069.pdf?dtrk=true

They are always clear and give links to the statute and regs addressing the specific area.

It is also important to remember the stage you are at in CHC assessment at any given point, as this also impacts on when the PCT can lawfully have the case transferred to the LA - as the refs above will show.

Overall, bear in mind S21 National Assistance Act and whether your rel's case is outside the remit of the LA. If it is then it can't be transferred - although there will be a major squabble at that point with the PCT about what is a health need, or a primary health need, and what are social needs, (50p and a cupcake says the PCT will deem them all social needs!) and at that point you can decide whether or how you want to appeal that decision.

So,start with the basics and see if they have been followed is my suggestion. Thereafter be clear about who and what you are challenging.

Have a good look at the AgeUK factsheet on finacial assessment before considering whether you will complete it. Don't get rushed into doing this, or let your rel. complete it alone - especially if their capacity is questionable.

Not sure where you are with your rel's case, but I hope that helps.