Just to add Chris G is correct. Statutory responsibility for the decisions rests with the NHS, not the LA. The LGO has no power to investigate such a decision.
However, Chris G's point about "refusing to pay" begs a couple of questions. I assume what is meant here is refusing to authorise using Chris G's mother's assets to pay for the care home, and that ChrisG is deputy or attorney (There would be no liability to pay otherwise). It is unsurprising that the NHS has not taken Chris G (or, more accurately, Chris G's mother) to court as they have no legal power to charge and so no grounds to take ChrisG's mother to court. Once the final decision has been reached by the NHS that someone is ineligible for CHC, the responsibility for charging passes to the Local Authority. Only once the patient has been discharged to a nursing home is the LA's power to charge for accommodation under the National Assistance Act engaged. The NHS cannot (for the most part - there are a couple of rather obscure exceptions to do with persons from overseas) charge for hospital care in most of the circumstances we are discussing here, as there is no statutory power to do so. Eventually, if the patient was discharged to nursing home care and there was a refusal to provide information for financial assessment or to arrange payment, the LA (not the NHS) could go to court . Details would depend on whether or not there was a PoA or Deputyship in place, but when faced with this point I was advised that this is one area where an attorney or deputy could in theory be personally liable for some elements of the costs of the LA in recovering the funds (and one of many reasons I declined to be my mother's deputy).
Despite ChrisG and fr0d0's posts (and posters on other websites believing that the NHS should challenge them), that isn't how English civil law and administrative law works. If a person affected by a decision disagrees with it, then the onus is on that person or those acting on their behalf to challenge the decision. Essentially the main and most realistic legal recourse is to bring a challenge by judicial review of the decision by the NHS not to award CHC. All that gets you in many cases is the right to have the decision re-heard, and it may result in the same decision but for different reasons. Best route is, as Chris G says, CHC specialist lawyer.
W
Hi Wirralson,
I know what you mean..... here it comes..... but.
The trouble with Judicial Review is the delays in making decisions and then the so called appeals process. It tends to time you out for a Court based review of the decision.
None of my mum's relatives is an LPA, EPA, (RAC or even AA
). Very much like yourself.
I was not arguing that the NHS had to take my mum to court.
I was arguing that the LA would have to.... and because of the fact that a legitimate and unresolved dispute between "mum" and the NHS existed, then it (according to lawyers), is entirely correct that the NHS be required as a third party to attend court because the accusation would be that mum owes the council and her defence would be that the NHS should be paying for her instead; so no debt to the LA actually exists.
It must also be remembered that he only reason that the LA is charging after a CHC assessment is that they have been told to by the NHS. (I have seen the internal documents and E-Mails requiring it and denying liability by the NHS).
The NHS would have to stand in front of a real Judge and justify every failure or deliberate breach of the rules.
The case would also need to be all encompassing. Which many of us understand, the CHC assessment appeals are not.
They are very limited in the sense that you can only appeal procedure and lack of evidence or the use of the criteria.
Also there is no ground in the framework with which to appeal that the LA remit to provide nursing care was exceeded by the NHS's decision. As has been Cornishman's long running problem.
If you cant appeal it then how can you get the decision overturned at Judicial Review? Cornishman continually gets told to go away by the LA because they do not make the decision.... as such he cant get them to Judicial Review either..... At least that is how it seems to me.
The NHS of course are the final arbiter of appeals. Even after an Independent Review Panel. Even the Parliamentary and Health Ombudsman is hamstrung by the same appeals criteria. Perhaps a real Judge would decide in mum's favour, perhaps not. I would rather hear it from a Judge.
Just to give you an example. If you claim other means tested benefits, (which the LA contribution is); you have a right of appeal to the first tiers of the Tribunal Service. They are quasi Courts and there is a path of progression to the "proper" Courts on appeal. None of the Courts or Judges are first hand employees of the DWP. Unlike of course, the "final" arbiters of the CHC process.
It is also my understanding that before a Government can take a persons entire assets (such as drug dealers, pimps, fraudsters etc.), they have to take the matter to a real Court to allow the convicted person to defend the intended action; under the European Human Rights malarkey. At least I seem to recall it being the case. Perhaps someone knows better about that and can let us know?
It is also confirmed (by lawyers), that any costs incurred, should you lose or not be permitted by the Judge, to recover them are in fact deductable from the patient's assets.
As such at worst, your loved one will go down fighting and the money won't be there for the LA to take.
A few dozen such cases and I am sure someone clever/more important than me would take a far greater interest.
By the way can an administrator switch the spell checker from USA English to UK English or can it not be done on this forum host?
I love the colour (with "U"), red but it drives me nuts thinking that I have made spelling errors.
All the best and genuine respect in my argument. CG.
