My standard advice to all new claimants is "DO NOT agree to anything and DO NOT sign anything" Unfortunately this advice comes too late for some and they consequently find themselves being targeted by solicitors. Note then that a legally binding contract does not need to be in writing to be valid. A valid contract can be established 'by implication' - ie. implied by your actions or possibly by your inaction - your failure to act on some crucial point. I am currently assisting a claimant who was duped into signing that he would accept personal liability to meet all his mother's care costs, now amounting to £Thousands, as all her assets are exhausted. The care home - part of a well known national chain - are now suing him for the money. A possible defence is that under the unfair contract terms act, the outfit concerned had not advised him of his statutory rights when he signed. Viz. only a spouse can be held to be vicariously liable for a relatives care costs. They therefore sought to deprive him of the statutory protection which the law provides. Reputable companies always add to their 'terms and conditions' the phrase 'Does not affect your statutory rights'. Not so these care homes it seems. 'Top up' agreements are also sought by many care homes which no one can be forced to sign but they will apply pressure by claiming that they cannot accept the placement without such an agreement. Again this would probably fail under 'unfair contract terms' law - but it could be costly to mount a valid defence - so avoid the need to in the first place! If asked to sign ANY contract say that you will take it away so that you can seek professional legal advice! If they object then ask what they are trying to hide - and bin it!

Yes true a legally binding contract does not have to be in writing to be valid, but it's a much harder job for the performing party to prove it existed if it isn't in writing! Hence the reason why 99.99999 per cent of contracts are in writing. This man signed ... but there is the defence of duress and undue influence by the grabbing national care home chain concerned. After all, what sane person would commit themselves to paying fees for the rest of their relative's life, which could be a long one? There must have been duress and undue influence. Why not name and shame Steve?

Greetings Jan and all.
I joined a while ago, having followed all of you from the old MSN site.
During the turmoil and stress of my Dad having to be placed in a home I unfortunately am one of the hoodwinked who did sign the Client Placement Contract with the council.
The area requesting a top-up (it was for a small amount) stated:
“Third Party Obligations (to be completed only if there are third Party Payments)
These payments are optional and not obligatory.
The personal allowance cannot be utilised for this purpose)

So I duly signed, but crossed out the top-up amount.
Until my deputyship for property & affairs came through, the nursing home was funded by the county my father moved from, I then reimbursed them, though the care home fees are still being paid via them. My father is self funding.
I have never knowingly signed a contract with the home, though I did sign something to give them permission to put bed rails up.

I can’t believe how stupid I am. But this is what happens under stress, and the belief that people in authority have your best interests at heart and are in fact decent.
Sorry…….didn’t mean to make you all howl.
I’ve learnt the hard way, though by no means as hard as many of you are experiencing here.
I now question everything.
The £7000 demand for an unpaid invoice went back pretty sharpish since it disregarded the fact that my father was in a detoc bed and was funded by my county for that period. At that point I hadn’t even come across the 12-week property disregard,
and no I wasn’t told about NHS CC.
Anyway my thanks to all of you who post and give such valuable help on this forum.
I am wise-ing up fast.
I now have an advocate who will help me.
I don’t intend to be a shrinkingviolet any more!
Now I just hope I'm posting this correctly.

Welcome ShrinkingViolet, what a great name. Except that it does not match your personality, except when you are under stress. Even the strongest under stress do daft things so don't beat yourself up. You have a lawyer and he can use the defence of duress and undue influence, Unfair Contract Terms Act etc etc. Let us know how your lawyer does and how you get on.

As this case may well go to court it could be considered sub judice but rest assured that I will broadcast the antics of this national outfit far and wide in due course. Solicitors have been instructed and I shall press to have the case struck out as 'no case to answer' alternatively to co-join the NHS as defendants. Watch this space! Steve.

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_076288
The link above is a revised (July 2009) National Framework for NHSCC.
It is quite long and i have just found it so don't know if it will help or hinder people.

Good Luck

Their National Framework is 'guidance' and not a definitive statement of the law and in many respects is completely unlawful. In summary every resident British citizen having an illness or disability is entitled to receive NHS care 'free at the point of need' under the 1946 National Health Service Act. A 'Health Need' is NOT synonymous with a 'need for health care' (nursing care or treatment) Many patients require only so -called 'social and personal care': Pam Coughlan and many cancer patients for example. The law is as the Law Society confirms "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" (submission to the Commons select committee). The application of ANY 'criteria' to determine eligibility for NHS continuing care is totally unlawful because the Health Act contains no such provision and it is a clear case of discrimination to refuse NHS care to patients having the same or greater care needs than does Pam Coughlan. It is also discriminatory to subject only long term care patients- primarily care home residents - to 'eligibility testing' when everybody else receives NHS care 'free at the point of need'. Subjecting patients to 'means testing' under Section 21 of the 1948 National Assistance Act is likewise unlawful and also in breach of Article 6 of the Human Rights Act. Try telling the NHS and Social Services all this and like me, you'll be met with prevarication, procrastination and sheer bloody-minded intransigence. Steve.

So true and clearly a national SHA 'Plan' they all appear to be working to. All CEO's maybe meeting regularly on some 'workshop' in a central hotel to discuss ways of outwitting the likes of us and UK Law. Feet-dragging being right in there.

I still await a promised verdict on one aspect of Mothers unlawful treatment for the end of February. Already well out of their 'target' by months. Its now end March.

At a recent IRP, the so called legal representative of the SHA asserted that Pam Coughlan had lost her CHC eligibility! I said that I didnt believe that to be true and in any event to be irrelevant to the issue. The actual Coughlan Appeal Court 1999 judgement being the UK legal benchmark for CHC funding written into UK Law supported by Grogan later. Demonstrates the confusion these types try to spread maybe.

I think someone on the forum asked recently if Pam Coughlan had to undergo these annual assessments and what the outcome was if she did.

Does anyone know the answer? Has she really had NHSCC funding removed?

Third time of trying – I think the PCT has sabotaged my computer. The chairman of the panel I spoke to earlier this year, asserted that Ms Coughlan would fail to gain CHC if assessed against current criteria (I think he also implied the 2007 framework ). I was, unusually, lost for words so failed to make a sharp retort or reasoned rebuttal. Was he right? I could do with a substantive answer as I have another meeting very soon. Any suggestions?

I don't know for a 100% fact that Pam C still has NHS-CC but I'm sure we would have heard if she didn't. Robin Lovelock would have spread the word. Again I don't know whether she has regular assessments, but I would have thought that if she did, they would not dare to take away her funding as she is such a high profile case whose entitlement has been proven by the highest court in the land.

It just shows the quality of these 'professionals' if they don't understand the basics of the law aroud the issue they are pronouncing upon. But then again, they are cyborgs obeying orders in the interest of their own job/salary/power.

'Current criteria' ie the National Framework is meant by law to be COUGHLAN COMPLIANT which means that if Pam Coughlan were to be assessed using the framework would she meet the criteria? If she did not, then they would NOT be Coughlan compliant and therefore unlawful. Do these morons not understand this basic principle?

Luke Clements is one of the few legal people in the country who actually understands the issue. Here is one of his documents which Victoria Meldrew posted last July.
http://www.wyed.co.uk/lukeclements/downloads/NHS_Funding_for_CC_revised_Guidance.pdf

Good Luck
Margaret

I believe it was Pamela Coughlan who said that she would not now qualify?

http://news.bbc.co.uk/1/shared/spl/hi/programmes/panorama/transcripts/national_homes_transcript.txt

"Quote"If you went for NHS continuing care now Pamela, in the Health Authorities as you've come across them…
You're shaking your head.

PAMELA COUGHLAN
Yes, I wouldn't fit them.

WHITE: You wouldn't get it yourself?

PAMELA: No.

WHITE: But the test case was about you.

PAMELA: Exactly.

WHITE: But if you wouldn't get it and the test case was about you, what does that tell you – if you're right?

PAMELA: There's a huge fraud and wrong been going on for years, and there seems to be nothing anyone
can do about it.

WHITE: The National Health Service, the publicly funded National Health Service is ignoring the law?

NICOLA MACKINTOSH
Pamela Coughlan's solicitor
Yes, and everybody is colluding in it, the local authorities are being pressured by the Health Authorities,
you have people on the ground, social workers, nursing staff, doctors, consultants and everybody has an
incorrect image / vision of what the legal position is because it has been given the wrong version by the
government.



Also may be of use

Dated 2005

http://www.publications.parliament.uk/pa/cm200405/cmselect/cmhealth/399/39908.htm

Quote: 103. The Minister has stated that all 28 sets of eligibility criteria now operating are legal and in line with current guidance. However, we have received evidence which calls this in to question, arguing that in fact the Coughlan case itself would have failed to meet the requirements of current eligibility criteria, either for NHS continuing care, or for high or even medium band RNCC, as Pamela Coughlan's condition was stable and predictable, although she had high level nursing care needs. Mackintosh Duncan solicitors, who specialise in continuing care law, told us that of the many sets of eligibility criteria they have seen which are currently being used, "none of those criteria are in accordance with the Coughlan judgment". These are very serious charges which the Government must answer. The new national eligibility criteria must be explicitly Coughlan-compliant, ensuring that all people whose primary need is for health care will receive fully funded care, even if this requires a fundamental revision of the definitions and terminology of the criteria.

S/V

Magaret and Shrinking Violet - thank you for your helpful comments. I think what I understand is that Pam Coughlan's appeal led to a legal benchmark decision, which an ambiguous (deliberately so?!)framework both undermines and circumvents. If I'm correct,what is the point of legal judgements?!

I am a newbie and relieved to find some helpful information at last on this very useful website. My apologies if I am diverting too far from this thread. I am finding the criteria and domains puzzling re application for eligibility for retrospective NHS continuing care for the time period 2000-2005. I was informed in writing prior to a recent panel meeting that the criteria in use at the time period of the claim would be used, not the 2009 criteria, so I assumed that the 2009 domains would not be used either. I submitted my claim with chronological structure as according to the NHS website there were no criteria in place 2000-2005. I was dismayed to find that the panel did after all use these 2009 criteria and domains. I have challenged the scores (3 highs, 4 mods, 1 low, 3 no needs - we agreed only 3 levels)and NHS Continuing Care was only granted shortly before my parent's death and by that time the nursing home fees were being paid anyway. It has taken a month's work to restructure my claim completely. I have been told that my claim cannot be considered before 1 Apr 2004. My parent was not assessed by Social Services for funding for 8 years after spending the first 3 in a rest home and the last 5 in a nursing home following further hospitalisation, because her consultant advised that she needed nursing care. These two matters have so far been ignored by the PCT. If anyone can cast any light on the question of criteria for the period 2000-2005 I should be very grateful.

We are all advised differently. I think ? Pauline has advised on this before, hopefully she will put you straight. Personally I thought that they assessed according to the 2007/2009 National Framework and the Decision Support Tool contained therein.

Hello Bodecia2007 Many thanks for your reply and I'll continue to watch this space!

Charlie, keep watching this space!! We don't all come out after dark - unlike the evildoers!! - we mostly surface once the light has broken and day has dawned.

And once we've had a chance to think about whatever is needed to be thought about. Again, unlike the evildoers!

So stick with us, and support, wisdom, advice and ... a fair bit of realism/cynicism will be heading your way another day. Or even sooner if someone emerges after dark.

VM

Victoria - thank you - I'll stick with you all! Charlie

Hi Charlie and welcome to the forum.

Pauline has posted on this topic before, so if you will bear with me I will try and find her post heading and number,and get back to you. We have been mired in this issue over which is the relevant 'criteria' ourselves for eons. In my experience they will use the 'criteria' which bests suits their purpose in denying CHC. In our case, they refuse to use the up to date criteria, instead using flawed criteria from 2005.

regards

Helcat

Hi again Charlie

If you can find post no 4 and 5 under topic heading - 'Jan's thread re: Health Ombudsman wants my Input On Report' - (I will bring this back nearer to the top of the list)there may be something of relevance to you there.
H

Hi Helkat. Thanks so much for taking the time and trouble to point me in the right direction. I must spend more time browsing the forum as there's clearly much more to look at. I've had a good read through Pauline's post and the responses which were v helpful. This whole NHS CC process is even more fraught than I thought! Our claim period falls between the two camps being 2000 to 2000. I wouldn't have been so cross if the PCT hadn't distinctly said they were not using the 2009 criteria. Never mind - I shall soldier on. Thanks once again Helkat, Pauline and all. Charlie.

County Council Social Services departments have a very limited role to play in patient care as ALL care is the sole responsibility of the NHS PCT unless it is 'incidental and ancillary to the provision of accommodation' - but only where this is 'not otherwise available'.
In summary the issue of continuing care responsibilities is as follows:

Nobody can be forced to accept any services provided by social services or the NHS unless they are 'sectioned'. Anybody who is forcibly detained under ANY law in this country cannot be charged for their accommodation. Under the MH act when sectioning ends they are free to walk away.

1. The NHS cannot place a responsibility on a LA which goes beyond the terms of section 21. of the National Assistance act. (Confirmed by Lord Woolf in the 'Coughlan' judgement)

2. A Local Authority can only provide care and attention 'incidental and ancillary to the provision of accommodation' (Confirmed by 'Coughlan' and the NA act)

3. LAC(93)10 clarifies what a Local Authority can actually provide and it is quite inconceivable that a patient requiring 24/7 access to professional nursing care could possess 'an illness of a kind which is ordinarily nursed at home' ACCESS to care is ALL a LA can lawfully provide under S21. They CANNOT provide the actual care required.

4. The Health Act does NOT permit the application of 'criteria' to determine who should or should not be entitled to receive NHS care 'free at the point of need'. This is the statutory right of every resident British citizen. The DoH 'National Framework' CANNOT be substituted for or used to circumvent The Health Act which is dominant primary legislation. (Confirmed by the Appeal Court in 'Coughlan')

5. Pam Coughlan has confirmed she would fail to qualify for NHS funded care if 'National Framework' criteria were applied to her. Only patients requiring long term care are subjected to 'eligibility criteria'. ALL such criteria are therefore discriminatory and hence unlawful and also breach of the Human Rights act.

6. The right to NHS care is a matter of law not medical opinion and questions of law cannot be arbitrated by clinicians and administrators.

7. Entitlement to NHS care is a statutory right enshrined in the National Health Service Act. A citizens statutory rights cannot be revoked by anyone - not even a court of law.

8. Under the 'Human Rights' act nobody, including nurse assessors, administrators and review panels can make a quasi-judicial decision which imposes a severe financial burden upon or places at risk a citizens entire assets.

9. Article 6 of the HR act entitles a citizen to be heard before an 'independent lawfully constituted impartial tribunal'. NHS review panels most certainly aren't! This would apply in respect of disputes concerning all the foregoing. Decisions by quasi-judicial panels and 'quack arbitrators and administrators ' are thus invalid under UK (and EU) law and are thus unenforceable.

10. The Law Society told the Commons select committee: "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 continuing care is entitled to receive that care from the NHS as the Act says: 'free at the point of need regardless of the ability to pay' (Confirmed, eg. by the 'Coughlan' and 'Booker' * judgments. )


*Neither the NHS nor social services can impose a decision contrary to the judgement in the ‘Booker’ case CO/9781/2010 where, stressing the principles underpinning the National Health Service, Judge Mark Pelling QC 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 (ie, long term) healthcare”.

Judge Pelling also ruled that Ms. Booker “is just as entitled to free NHS care as any independently wealthy patient”. Thus NHS Trusts cannot unilaterally withdraw or refuse funding and deem a patient to be a 'self funder' because they have sufficient assets to meet their own care costs. Neither can social services charge a patient for care which they had no lawful authority to provide in the first place.

NOTE:There is no lawful demarkation between 'Residential' and 'Nursing' homes. They are ALL 'Care Homes' and the level of care they provide is determined by the license they hold which depends on the facilities they offer.

Steve Squires (Founder, nhs Continuing Care Campaign)

My mother is currently in hospital diagnosed with a terminal illness- given weeks to months left to live. I need to transfer her from the Wirral to Buckinghamshire in the next week and have been trying to get NHSCC for 5 weeks now. Her pain is unpredictable and uncontrolled and she is bedridden so mobility is pretty low to nil.The district nurses claim she is not eligible on the checklist. When in hospital 5 weeks ago I used your information, refused discharge and won a meeting with one of the senior managers who magically agreed that she qualified for rapid access funding and fast track NHSCC funding and that an application had gone in and that I would hear in the next week. After a week of my mother being at home I rang the CC dept in the hospital- and was told no application had been made against this name. I phoned the manager and was told her needs were being met by social services and DN support. They denied that meeting took place. My mother is now back in hospital with opiate toxicity and the date by which I need to transfer her is looming (30th). I have gone to the pres and writen and phoned my MP, I constantly badger every health profesional I see about NHSCC. The MP seems to have rattled some cages and a senior official is going to meet me at the hospital at 4pm today to discus my concerns. Any advice as to what I can throw at them?