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This page consists of items
submitted for publication in the Association's Newsletter of general
interest to Forum Members. The items are listed as links
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Computer Problems Should you pay third
Party Top-ups. Who Should Fund Long Term
Nursing Care?
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Solicitors for the Elderly,
This is an association of Lawyers throughout England,
Wales and Northern Ireland who specialise in issues affecting older
people. Specialist advice in these issues is important particularly if
you are acting as the carer of another person.
An association of lawyers throughout England, Wales and Northern
Ireland who specialise in issues affecting older people. An
excellent source of sound legal advice for older people, their
families and carers.
For your Local members please call
www.solicitorsfortheelderly.com
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Top Up Fees
IS YOUR RELATIVE ABOUT TO ENTER A CARE HOME ?
SHOULD YOU PAY A THIRD PARTY TOP-UP ?
WACE MORGAN
· SOLICITORS
SHOULD YOU PAY A THIRD PARTY TOP-UP?
Is your relative about to be, or are they already
funded by, the Local Authority?
Is your relative about to enter a home which is
more expensive than the Local Authority fixed rate for such a place,
or are you now being invited to pay an increased top-up in a home
where your relatives have been for some time and from which they may
be evicted?
Should you pay the third party top-up which you are
being invited to pay?
There are important factors to take into account
which come from the Choice of Accommodation directions, the guidance on
these issued in 2004, other Government guidance and Local Authority
Ombudsman cases.
Local Authorities set an amount they will pay for
the needs of people in certain "bands" such as EMI (Elderly Mentally
Infirm) Residential or Nursing.
People generally do not fit into bands! They have
individual needs which should be taken into account.
Local Authorities have a DUTY to pay
MORE than the fixed level if someone’s needs warrant
this and there are no other less expensive places available which
FULLY meet that person’s needs
Your relatives needs should be fully assessed in a
proper multi-disciplinary assessment and this should taken into
account:-
social needs;
psychological needs (one case found that the
strongly held preference of a man with learning disabilities to
remain in the home of his choice amounted to a psychological need);
religious needs;
cultural or ethnic needs – where staff or
residents speak the individuals language or the person can remain in
close contact with friends and family, or they have a specific
problem such as hearing or visual impairment in a home specifically
geared to meet those needs;
If these needs can only be met in a more expensive
home the Local Authority should pay the full amount of the fees.
Other factors to bear in mind:-
Local Authorities should explain to clients and
their carers what the Choice of Accommodation directions provide. Have
you had any explanation?
If there are not sufficient places available to
meet your relative’s assessed care needs the Local Authority should
make a placement in more expensive accommodation.
The Local Authority should NOT set
arbitrary ceilings on the amount they expect to pay for an
individual’s residential care. Residents and third parties should
NOT routinely be required to make up the difference between
what the Local Authority will pay and the actual fees of the home.
Local Authorities have a statutory duty (under Acts of Parliament) to
provide residents with the level of service they could expect if the
possibility of resident and third party contributions did not exist.
(Residents are ONLY able to top-up from their own
resources when they are either accessing the 12 week property
disregard or who have entered into a deferred payment agreement with
the Local Authority).
Wace Morgan
2 Belmont
Shrewsbury
SY1 1TD
01743 280100
e-mail: help@wmlaw.co.uk
Contact: Mrs Liz Holdsworth or Miss Claire Parry
(reviewed: 03.03.2008)
15th April 2008 |
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Top
WHO
SHOULD FUND LONG TERM NURSING CARE ?
SHOULD IT BE THE NHS ?
A GUIDE TO NHS CONTINUING HEALTH CARE FUNDING
WHO SHOULD FUND LONG-TERM NURSING CARE?
SHOULD IT BE THE NHS ?
THE BACKGROUND
The funding of long-term nursing care is largely met
by individuals themselves or, when their capital has diminished to a
certain level (in England £21,500.00 and in Wales £22,000.00), by a
mixture of their own income, Local Authority money and the "free"
nursing care contribution (Registered Nurse Care Contribution) provided
by the government with the intention of covering the cost of registered
nurse care for the patient.
In England: with a discretion to pay more,
from 1st October 2007 £101.00
(with transitional provisions for those on the High Band)
from April 2007 (per week) High Band £139.00
Middle Band £87.00 Low Band £40.00
In Wales: from April 2007 (per week) £114.90 if
you receive any care from a registered nurse
If the Local Authority is involved in any way, the
patient is means tested. If the National Health Service (NHS) pays
everything it is exactly the same as if the patient is in hospital, no
account is taken of their assets and private income but some benefits,
such as Attendance Allowance, will cease after 28 days.
EXAMPLE
Mrs Brown (a sick lady who has PRIMARY HEALTH needs)
goes into Cherry Tree Nursing Home. The fees are £650.00 per week. She
owns a house worth £300,000.00 and has savings and investments of
£250,000.00. She is self-funding but receives towards her care the High
Band Registered Nurse Care Contribution of £139.00 (under the
transitional provisions) and the higher rate of attendance allowance
£64.50. She pays net £446.50 per week - £23,218.00 EACH YEAR. Mrs Brown
gets advice from a specialist solicitor and a successful claim is made
for NHS Continuing health care funding
Mrs Brown’s attendance allowance ceases after 28 days
BUT the nursing home fees are paid directly by the NHS and Mrs Brown
retains her house and ALL her savings and income. She pays
NOTHING EACH YEAR because she is a patient of the NHS.
She has a refund for any fees
already paid.
The Welfare State intended that all sick people
should be cared for in hospital, but in the 1980s there were massive
closures of Cottage and Geriatric hospitals and long-stay wards. In the
1990s the Local Authorities/Social Services, through their social
workers, were given the role of placing people in nursing homes and
funding them, if necessary, after means testing. The principle of
completely FREE nursing care of sick people, including the elderly, was
largely forgotten.
THE WAY BACK
A 1999 Court of Appeal case, R v North and East Devon
Health Authority ex parte Coughlan, indicated that the
FULL COST OF NURSING CARE
for those whose
PRIMARY need is nursing should
be met by the NHS. The Local Authorities/Social Services were only
empowered to mean test and fund those whose nursing needs were
Incidental or Ancillary
to their need for accommodation.
The Court of Appeal considered that Pamela Coughlan’s
nursing needs were in a "wholly different category" from those which
should be provided for by Local Authorities/Social Services, and
therefore should be funded by the NHS.
Pamela Coughlan, is not old. She had been injured in
a road traffic accident, and is tetraplegic. She retains partial use of
her arms via her shoulder muscles. She is doubly incontinent. She
suffers from headaches, necessitating intervention to effect an
immediate position change.
She requires: -
assistance with feeding
transfers from bed to wheelchair
a special pressure-sore mattress
turning at 2-4 hourly intervals at night to avoid
pressure sores
intermittent catheterisation and occasional help
with breathing
no regular medication other than sennacot and
suppositories
She is able to:
enjoy social activities and be driven to see
friends
be mobile with an electric wheelchair
select her own clothing and menu. Vary and manage
her own diet. She has plenty of reading matter, compact discs, plus
radio and TV receivers.
In February 2003 the
HEALTH SERVICE OMBUDSMAN (HSO)
for England delivered an influential report to Parliament on the
subject of long-term nursing care, which recommended that Health
Authorities should actively find people who had been funding their own
care, or had been funded by the Local Authority/Social services, any
time from April 1996
onwards. These
peoples’ cases should be re-considered and, if they should have been
fully funded, they, or their estate if they had died, should be
recompensed for the amount that they had paid.
Each of the former 28 Strategic Health Authorities (SHAs)
was allowed to have its own eligibility criteria to decide whose
long-term health needs would be funded in its area. The SHAs have now
become 10, but the previous eligibility criteria remained in place until
1st October 2007 when the NATIONAL FRAMEWORK on NHS
Continuing Health Care was implemented.
The criteria for funding long-term nursing care used
by the North and East Devon Health Authority (where Pamela Coughlan
lived) were found to be unlawful by the Court of Appeal and, even though
many sets of criteria were amended, there were those which were still
far too restrictive in the light of the Coughlan case, the HSO report
and the guidance issued by the Department of Health, (which itself has
been criticised by the HSO). One of these WAS Shropshire
and Staffordshire. The HSO was so concerned about these criteria that in
April and again in June 2005 they visited the SHA and Shropshire Primary
Care Trust to discuss the criteria and the processes being followed.
Much injustice to patients and their families has happened here and has
yet to be rectified.
THE GROGAN CASE
In January 2006 the High Court heard a challenge on
behalf of Mrs Grogan, a patient in a Nursing Home, to the eligibility
criteria used by Bexley Care Trust.
The Judge found that: -
Professionals had been led to believe that if a
person’s needs could be met within the RNCC bands, then they were not
eligible for fully funded NHS care.
The eligibility criteria in the area where Mrs
Grogan lives were "fatally flawed" i.e. unlawful because: -
· The
Heath Authority had not set out the Coughlan "PRIMARY
NEEDS TEST" or the
LIMITS
of Social Services responsibilities in full and
· The Heath
Authority had linked fully funded NHS Care eligibility to the RNCC
bands.
The Judge stressed: -
Any person whose needs are the
SAME
as, or EXCEEDED
those of Ms Coughlan should be entitled to fully funded NHS care.
It was the
NEEDS
of the patient rather than the actual qualification of the person
undertaking the nursing care which should dictate who should fund the
service.
The Health Agency (for example, the PCT) should
look at the TOTALITY
of the person’s needs to see whether that person had a primary need
for health care.
The Local Authority should
also
look carefully at the
TOTALITY
of the person’s needs before accepting the responsibility and means
testing because they might actually be the responsibility of the NHS
and legally BEYOND the scope of the
Local Authority. i.e.
the nursing needs of a person might
be MORE than INCIDENTAL or ANCILLARY to their need for accommodation.
New guidance was issued by the Department of Health
on 3rd March 2006 to SHAs advising them to review their
eligibility criteria and the processes in use following the Grogan case.
Once the criteria and all processes were amended they should
REVIEW
patients who may have been
WRONGLY
denied NHS Continuing Health Care Funding, since April 1996.
The criteria of the
Shropshire & Staffordshire SHA were amended in June 2006.
The National Framework has been implemented on 1st
October 2007. This is a document of principles and processes to be
followed throughout England. The 10 key principles are:
Access to assessment for NHS Continuing Healthcare and provision
of that care should be fair, consistent and free from discrimination
on the grounds of race, disability, gender, age, sexual orientation,
religion or belief.
The process of assessment and decision-making should be person
centred.
Eligibility for NHS Continuing Health care is based on the
individual’s assessed health needs and not a diagnosis.
Consideration of eligibility for NHS Continuing Healthcare should
always precede any decision about NHS funded nursing care.
When carrying out an assessment for NHS Continuing Healthcare and
NHS funded nursing care the potential for further rehabilitation and
regaining independence should always be considered.
Eligibility for NHS Continuing Healthcare is not determined or
influenced by the setting where the care is provided or by the
characteristics of the person/s who delivers that care.
Financial issues should not be considered as part of the decision
about an individual’s eligibility for NHS Continuing Healthcare.
The decision making rationale should not marginalise a need
because it is successfully managed; well-managed needs are still
needs.
The evidence and decision making process should be accurately and
fully recorded using suitable models that are already in place.
Decisions and rationales relating to eligibility should be
transparent from the outset – for individuals, carers, family and
staff.
Eligibility for NHS Continuing Healthcare may change and regular
reviews are built into the process. Individuals and their families
need to be clear about this from the outset.
There are assessment tools which must be used
nationally – see www.dh.gov.uk.
It is against this framework and using these
nationally approved assessment tools that the needs of a patients at any
time from April 1996 should be reviewed.
A letter of 31st July from the Chief
Executive of the NHS David Nicholson to all health bodies suggests that
there should be a "closing of the door" to all claims for the period
April 1996 – April 2004. This is on the basis of a local "Public
Awareness" campaign. In the absence of such a campaign this "attempted
closure" would be open to challenge by judicial review.
THE PRACTICAL CONSEQUENCES
Do you think that you, or your relative, are (or
were) entitled to COMPLETELY free NHS-funded nursing care (Continuing
Health Care Funding)?
Are you/were you:
sick and in need of long-term nursing care?
in hospital, about to be discharged?
in a nursing home, paying or making a
contribution towards your own care?
in a residential home receiving palliative care
or about to be transferred to a nursing home because your primary
need is now for nursing?
sick and at home with long-term needs?
If
ANY
of the above apply to you (or your relative), and your PRIMARY need
is for heath care i.e. your nursing needs are not merely incidental or
ancillary to your need for accommodation, the decisions in the Coughlan
& Grogan cases, the Health Service Ombudsman’s report and the National
Framework support the view that the NHS should be funding the
WHOLE
of your care FREE
in a nursing home, a residential home, a hospice, or your own home.
IF YOU ARE IN A NURSING HOME, RESIDENTIAL HOME OR AT
HOME:
Ask for a written assessment/re-assessment of ALL
your health and social care needs and a review of your case by the
Primary Care Trust (in England) or Local Health Board (in Wales) where
you are being nursed.
Do your needs match or exceed those of Pam
Coughlan?
If the decision is that your needs do not meet
the standard set by the new National Framework you should apply
for a review of the decision if the process is flawed or you
believe your needs do meet the standard set by the National
Framework
If the review is not successful an
Independent Review
Panel
should be convened by the SHA at
which you and/ your family and representative should be able to
put forward your views
If not successful, request an independent
review from the Health Care Commission prior to taking your case,
if necessary, to the Health Service Ombudsman. There is now a
designated department there which deals only with complaints about
NHS continuing healthcare funding and intermediate care. You are
not alone!
NB.
Nursing homes and Residential
Homes are now called Care Homes registered for nursing or
residential care. In this handout we have largely used the former
descriptions
IF YOU HAD A SICK RELATIVE WHO DIED SINCE APRIL 1996
WHO WAS PAYING ENTIRELY OR PARTLY FOR THEIR OWN CARE:
You can make a claim on behalf of their estate for
reimbursement of the money incorrectly paid.
The steps are similar to those set out above but it
is wise to have advice
BEFORE
starting on the process.
You may not need to go through the Health Care
Commission BEFORE
taking the case to the Health Service Ombudsman
IF YOU ARE IN HOSPITAL:
Ask the
Discharge Liaison Nurse
for a written assessment of your continuing healthcare needs.
Government (Department of Health) Directions are in force which should
ensure that you have this assessment
BEFORE
leaving hospital to go to a care home or for intensive care in your
own home, and BEFORE
you have an assessment for the Registered Nurse Care Contribution.
If it is considered that you do not meet the
standard set out in the National Framework, and
you believe you do, or
the process was not carried out properly,
ask for a review, which should be completed
within fourteen days
If you are still unsuccessful, ask for an
independent review panel
You should remain a patient of the NHS till these
matters are resolved. However, it is not wise for a sick elderly
person to remain in hospital (MRSA and other hospital acquired
infections may exacerbate the situation)
If you go from hospital to a care home, or to
your own home with an intensive healthcare package,
your claim will continue and be
retrospective.
If, sadly, you die at any point during this
process, your estate
can still pursue the claim on behalf of those whom you wish to
benefit following your death.
Wace Morgan, for many years, have been working on
behalf of clients, or their relatives, with PRIMARY HEALTH NEEDS
wrongly charged for their long term care. We have recovered hundred
of thousands of pounds for them, but realise that there are many more
patients, some of whom have died, who should have been fully funded.
Our view is that the whole period from April 1996 to
date is open for review despite the attempt to "close the door" for the
period April 1996 – April 2004.
We can offer an initial free telephone conversation
to advise if you (or the estate of a relative who has died) have a
realistic claim.
There is a choice of payment for work done and we
are, subject to initial discussions and review of the case, prepared to
offer a Contingency fee agreement, which means that there are NO costs
UNLESS there is a reimbursement of fees to the individual or to their
estate.
This handout has been prepared by:
MRS LIZ HOLDSWORTH Consultant Solicitor with
WACE MORGAN,
Solicitors, 2 Belmont, SHREWSBURY, SY1 1TD ,Regional Co-ordinator of
the Shropshire group of Solicitors for the Elderly (SFE) and on the
National Committee of Solicitors for the Elderly Ltd.
www.solicitorsfortheelderly.co.uk
PLEASE CONTACT :
Mrs Liz Holdsworth
for training, talks or workshops
and either
Mrs Liz Holdsworth, or Miss Claire Parry
for initial advice concerning individual patients
tel 01743 280100
email liz.holdsworth@wmlaw.co.uk or
claire.parry@wmlaw.co.uk
10 October 2007
15th April 2008 |
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Computers!
A reminder that there is a wide range of IT
courses at the Gateway in Shrewsbury and at many other venues across
Shropshire, catering for beginners and more advanced IT users.
If any members of the SCF are "stuck" with a
particular IT problem on their computers, then they may like to contact Hugh
Cullen at the Gateway (01743 355159), and he can pass on the contact phone
number for an IT tutor who might be able to answer the query.
From Priscilla Roscoe, Shrewsbury Forum
2.12.06
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