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NHS continuing care

geum123

Registered User
May 20, 2009
4,604
Wirralson.
Thank you so much for your extensive, very informative post.:)

The complexity of it all, is why I employed a solicitor to handle the retrospective claim for my Dad. It enabled me to better concentrate on him.

It still took me weeks to work through the DST to ensure he qualified in the last year.
 

fr0d0

Registered User
Dec 23, 2009
186
Mid Wales
Geum 123

Many thanks - it confirms my earlier post. I agree with your final conclusion. The Coughlan judgment makes clear that the NHS has a degree of discretion in deciding what is and isn't required by way of nursing care. The Grogan case is the one which resulted in what had previously been guidance only being developed into the mandatory national CHC framework. (The issue was partly that there was no evidence of how the decision to decline CHC funding had been reached or what criteria employed.) The St Helens case makes it clear that the NHS (then the PCTs now CCGs) is the primary decision taker as to what is a primary health need The question at issue seems to have been how that discretion was exercised in that particular case, especially given the background of undertakings given to residents of the care homes in question. The definition of "nursing care" would also appear to be an issue. The NHS regards nursing care as quite specifically requiring the care of someone with nursing qualifications, which in many cases dementia patients will not need on a day to day basis. Incidentally, although the colloquial references are frequently is to "Coughlan compliance" the Grogan case (sometimes called the Bexley case) and the St Helens and Knowsley case equally relevant to the point at discussion in this thread, The point is that the Coughlan case makes clear that there is a discretion as to what constitutes nursing care. The Grogan case makes it clear there needs to be evidence of the basis for the decision. That case was a judicial review and it is as well to remember the remedies are limited - in effect if the public authority loses, they have to go back and consider their decision in the light of the judgment, but the issue is often how a decision was reached rather than the decision itself. The Grogan cases resulted in the mandating of the national CH framework, although guidance (based on the reasoning in the Coughlan case), appears to have existed before that. Finally the St Helens case makes clear that the decision on what constitutes a primary health need rested with what were Primary Care Trusts in England and are now Clinical Commissioning Groups. So I'd say anyone arguing that the CHC framework is, of itself, unlawful is making a statement that is difficult to support. Implementation of it and decisions in individual cases may be open to challenge, but that would require professional advice.

One the question of legality, my understanding is that the NHS and Community Care Act 1990 and the NHS Act 2006 are as Acts of Parliament, lawful (although European law can override these to an extent). Challenging the lawfulness of aspects of its implementation (i.e. on the subject here, the use of CHC framework, or the latter's implementation in any given case) would almost certainly need to be by way of judicial review. That has strict time limits, and is, as you point out, potentially extremely costly. Mounting such a legal challenge would require expert professional advice from a solicitor specialising in the field.

I'd also agree strongly with you that anyone seeking CHC funding for a relative is going to get best results working within the framework and trying to influence the outcome by engaging with it, as SisterAct illustrates. The NHS will use it - so individuals might as well work with the tools they have. Brandishing a copy of the Coughlan judgment and claiming the whole process is unlawful isn't going to help - the NHS staff will politely ignore any remarks to that effect and simply complete the CHC assessment regardless.

Wirralson
Hi W

I disagree with your conclusions about the strength of the legal challenge. Lord Woolf in Coughlan specifically stipulated that qualified registered nursing care was not the only duty that bound the NHS to provide free care. Ancillary nursing, warranted as a result of the primary health care need, is also the full financial responsibility of the NHS. It's there in black and white.

If you play along with the CHC framework, then you're compliant in an unlawful process, if you understand the above to be true.

Fuzziness was expelled from the decision making process by the Coughlan benchmark. By complying with the current CHC framework you are undermining that clear legal directive gifted to us by the judiciary.

Finally, you do not have to spend a fortune chasing the NHS through the courts. The onus is upon the NHS to show how the law as it stands is incorrect and should be what they say it is. The NHS are acting contrary to the law, not those that point that out.

Refuse to pay any fees and invite the NHS to challenge yet again and see if they can get the law changed in their favour. As it stands, since 1999 they have been either unsuccessful, or not challenged.

The NHS staff are trained to parrot the procedure in ignorance of the law. The NHS have massive resources at their disposal where the victims are individuals with little resources. Yet the NHS are reluctant to challenge. That wouldn't be true if they had a slim chance of success.

Times are hard and austerity affects budgets. But why should the vulnerable elderly be stolen from just because they're an easy target that in the majority of cases can't fight back. That 3 billion pounds the government is stealing from them should be sourced fairly from society as a whole.
 

J W

Registered User
Apr 19, 2013
126
Hi W

I disagree with your conclusions about the strength of the legal challenge. Lord Woolf in Coughlan specifically stipulated that qualified registered nursing care was not the only duty that bound the NHS to provide free care. Ancillary nursing, warranted as a result of the primary health care need, is also the full financial responsibility of the NHS. It's there in black and white.

If you play along with the CHC framework, then you're compliant in an unlawful process, if you understand the above to be true.

Fuzziness was expelled from the decision making process by the Coughlan benchmark. By complying with the current CHC framework you are undermining that clear legal directive gifted to us by the judiciary.

Finally, you do not have to spend a fortune chasing the NHS through the courts. The onus is upon the NHS to show how the law as it stands is incorrect and should be what they say it is. The NHS are acting contrary to the law, not those that point that out.

Refuse to pay any fees and invite the NHS to challenge yet again and see if they can get the law changed in their favour. As it stands, since 1999 they have been either unsuccessful, or not challenged.

The NHS staff are trained to parrot the procedure in ignorance of the law. The NHS have massive resources at their disposal where the victims are individuals with little resources. Yet the NHS are reluctant to challenge. That wouldn't be true if they had a slim chance of success.

Times are hard and austerity affects budgets. But why should the vulnerable elderly be stolen from just because they're an easy target that in the majority of cases can't fight back. That 3 billion pounds the government is stealing from them should be sourced fairly from society as a whole.
It really is a minefield trying to work out entitlement for CHC with domains, checklist etc, but fr0d0 i think thats a very good post you have made.

Good luck to anyone trying to gain CHC for a loved one, i hope you get it.
 

LYN T

Registered User
Aug 30, 2012
6,958
Brixham Devon
Hi,
We had the sw out to us yesterday because we were are not happy with the level of home care provided and asked again about the assessment and were told that she didn't fit the criteria!
I have been told by other health care professionals to make sure that every problem, crisis is logged - by calling 111 or her doctor so that there will then be a history building.
My Husband has recently been awarded CHC-it didn't even go to panel and was awarded within one hour of the assessment. However, before the appointment P's SW told me over the phone that he wouldn't get it. I was very miffed as I thought everyone had to listen to the evidence put forward. I sent a VERY strongly worded email to the head of SS's to let him know I was on his case:eek:

It worked; SW was like a lamb:D

Take care and good luck

Lyn T
 

J W

Registered User
Apr 19, 2013
126
My Husband has recently been awarded CHC-it didn't even go to panel and was awarded within one hour of the assessment. However, before the appointment P's SW told me over the phone that he wouldn't get it. I was very miffed as I thought everyone had to listen to the evidence put forward. I sent a VERY strongly worded email to the head of SS's to let him know I was on his case:eek:

It worked; SW was like a lamb:D

Take care and good luck

Lyn T
Good for you Lyn T.

Some people need a rocket where the sun does not shine.
 
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cliveo

Registered User
Sep 11, 2011
23
Hi,

My mother was awarded FFC in 2011 and this was then taken away in Dec 2012.I have an on going complaint trying to be resolved at local level by NHS PALS and I have requested to take the case to the Ombudsman. The assessment in my opinion was flawed and every time I ask them who is liable for the gap in funding I get a response that it is still being investigated. I have so far refused to pay or have my mother's finances means tested by SS while this is still not resolved. I am now in the process of appealing against the current year assessment which again the panel marked down the scores in the assessment. It's a long story but I believe I have to act and challenge for my mother's best interest and am lucky that she is currently being cared for in a specialist home.The whole process seems never ending.

Regards,
Cliveo
 

fr0d0

Registered User
Dec 23, 2009
186
Mid Wales
Hi,

My mother was awarded FFC in 2011 and this was then taken away in Dec 2012.I have an on going complaint trying to be resolved at local level by NHS PALS and I have requested to take the case to the Ombudsman. The assessment in my opinion was flawed and every time I ask them who is liable for the gap in funding I get a response that it is still being investigated. I have so far refused to pay or have my mother's finances means tested by SS while this is still not resolved. I am now in the process of appealing against the current year assessment which again the panel marked down the scores in the assessment. It's a long story but I believe I have to act and challenge for my mother's best interest and am lucky that she is currently being cared for in a specialist home.The whole process seems never ending.

Regards,
Cliveo
Great to hear your story Clive. What is PALS? Do you have any sources of information that you'd be willing to share? I'm just about at the ombudsman stage I think but don't know how to move forward with that. The LHB aren't very forthcoming.
 

cliveo

Registered User
Sep 11, 2011
23
Yes its patient advice and liaison service, I am dealing with the Bucks branch. They don't really have any power but as they are based in the same offices as the NHS Continuous Care Team they have acted on my behalf since Sept 2013.They also told me I had to exhaust all attempts to resolve the complaint locally before I could use the Ombudsman route. Today they have told me they have a project manager on my case and will take up to ten days to investigate my complaint I don't honestly know what more they have to investigate since Sept, but the ball is in their court again at the moment.

You may have come across a site called care to be different this has some good information available. Sounds like you are well informed fr0d0 from your interesting posts on the legal side.
Clive
 

Wirralson

Account Closed
May 30, 2012
658
Great to hear your story Clive. What is PALS? Do you have any sources of information that you'd be willing to share? I'm just about at the ombudsman stage I think but don't know how to move forward with that. The LHB aren't very forthcoming.
Fr0d0

I'm re-reading your posts and the relevant judgments. It's fair to say that I don't agree with all the points you make, but I'm not yet in a position to reply. I will try to do so shortly. However, if you are interested in the ombudsman process I'm happy to try and assist.

Briefly the Ombudsman (more accurately, the Parliamentary and Health Service Ombudsman) has pretty limited powers and is even more limited in the cases they can take up in England. However, for the NHS it is simpler than for other Government agencies or bodies. I assume for your mother it is the Public Services Ombusdman for Wales that you want - link https://www.ombudsman-wales.org.uk/ and fill in the online form.

For TP users in England - simply fill in the form here:

http://www.ombudsman.org.uk/__data/...king-a-complaint-about-the-NHS-in-England.pdf

However, it may help to note a few things. A lot (from memory, most) complaints to the Ombudsman aren't followed up. In many cases the complainant hasn't done what is called exhausting local remedies - in other words followed any existing procedures or appeals. NHS cases in England don't require referral by an MP but cases against Government departments do, which does limit the numbers a bit. The good news from your perspective is that the process is very complainant-centric. However, note that the ombudsman in England cannot deal with social care (not relevant to your case but may affect some TPers). Also the ombudsman tends to focus on process rather than outcome - in effect they will tell the organisation to go back and do things properly (as the ombudsman sees it). This may carry the expectation that the outcome is different, and it often is, but do note that isn't always the case and complainants aren't always successful.


However, for an example of a Welsh ombudsman referral related to CHC, try reading this summary:

https://www.ombudsman-wales.org.uk/...c Interest Reports/May-13-case-201101810.aspx

This will give you some idea of what HBs in Wales can do wrong and what the complainant's argument was.

Wirralson
 
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fr0d0

Registered User
Dec 23, 2009
186
Mid Wales
Hi W. Thanks for your reply. I look forward to what you have to say. I don't know if the ombudsman is the final step in the process for us, as it is for the NHS. The ombudsman is still the NHS imposing it's own version of the law I think, although I'm a bit rusty on that. What the NHS must do is challenge the law as it has unsuccessfully tried several times before in the past 15 years. Like I said, these austere times may warrant savings, but fairness dictates that those savings shouldn't be sourced from the vulnerable just because that's easy.
 

Wirralson

Account Closed
May 30, 2012
658
Hi W. Thanks for your reply. I look forward to what you have to say. I don't know if the ombudsman is the final step in the process for us, as it is for the NHS. The ombudsman is still the NHS imposing it's own version of the law I think, although I'm a bit rusty on that. What the NHS must do is challenge the law as it has unsuccessfully tried several times before in the past 15 years. Like I said, these austere times may warrant savings, but fairness dictates that those savings shouldn't be sourced from the vulnerable just because that's easy.

Fr0d0.

Public Services Ombudsman for Wales is most emphatically not part of NHS, but an independent official established by the Public Services Ombudsman (Wales) Act 2005, an Act of the Welsh Assembly, and accountable to that body. Link to the Act below:

http://www.legislation.gov.uk/ukpga/2005/10/contents

The NHS is not an independent agency but a body established by statute (NHS Act 1947) . It cannot challenge the law in the way you appear to suggest. I will try and address that in the post I am drafting, but it is at the moment rather long, so may need to be split.

Wirralson
 
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cliveo

Registered User
Sep 11, 2011
23
So if it seems to be that many people's cases do not get resolved at local level and by the ombudsman then does anyone have any knowledge/experience of what can then be done apart from seeking legal advice.
Rgds
Clive
 

Wirralson

Account Closed
May 30, 2012
658
So if it seems to be that many people's cases do not get resolved at local level and by the ombudsman then does anyone have any knowledge/experience of what can then be done apart from seeking legal advice.
Rgds
Clive
Not much. In essence if you are challenging an administrative decision, (which is what CHC funding decisions are), you are almost certainly going to need legal advice. Bear in mind the ombudsman's powers are defined in law but they are about reviewing administration and not overturning decisions. They are pretty careful about not trespassing on areas that are properly for the Courts to deal with. There is always the possibility of overlap but not much.

Wirralson
 
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fr0d0

Registered User
Dec 23, 2009
186
Mid Wales
The NHS is not an independent agency but a body established by statute (NHS Act 1947) . It cannot challenge the law in the way you appear to suggest. I will try and address that in the post I am drafting, but it is at the moment rather long, so may need to be split.

Wirralson
But this is the thrust of Ian Perkins successful and high profile case against the NHS. He should have known what he was talking about having worked at a high level in NHS financial administration i think. If what you are saying is true then how come there are high profile cases where the NHS have done exactly that: challenged the law as in Coughlan and Grogan? I think we're at odds here missing the point... Yes the NHS have no legal power... they still employ the resources at their disposal (massive government legal departments vs us, the individual), by no means inconsiderable, to use the law to meet out their/the governments disgraceful agenda.

It also demonstrates that the NHS have no business in peoples financial affairs as the assessments often (or always in our case) devolve into. Social services should be no part of the process if as in my case, they have no knowledge of my mum and are only at the assessment to consider her ability to pay.

I have a letter from my LHB asking me to escalate my legal challenge to the central government CHC team. I don't have a challenge! How can I challenge something I am in full agreement with: The law as it stands? No, the NHS is contradicting the law, and if it wishes for that to be enforceable in court it needs to see the law changed. It has tried several times in the past to do that, and would appear understandably reticent to do it again. In which case, we should all rest on that point: the challenge to them to adhere to the law.

I'm not willing to act unlawfully and comply with the NHS's requests.

(edit: last sentence changed to be more accurate)
 
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Wirralson

Account Closed
May 30, 2012
658
But this is the thrust of Ian Perkins successful and high profile case against the NHS. He should have known what he was talking about having worked at a high level in NHS financial administration i think. If what you are saying is true then how come there are high profile cases where the NHS have done exactly that: challenged the law as in Coughlan and Grogan? I think we're at odds here missing the point... Yes the NHS have no legal power... they still employ the resources at their disposal (massive government legal departments vs us, the individual), by no means inconsiderable, to use the law to meet out their/the governments disgraceful agenda.

It also demonstrates that the NHS have no business in peoples financial affairs as the assessments often (or always in our case) devolve into. Social services should be no part of the process if as in my case, they have no knowledge of my mum and are only at the assessment to consider her ability to pay.

I have a letter from my LHB asking me to escalate my legal challenge to the central government CHC team. I don't have a challenge! How can I challenge something I am in full agreement with: The law as it stands? No, the NHS is contradicting the law, and if it wishes for that to be enforceable in court it needs to see the law changed. It has tried several times in the past to do that, and would appear understandably reticent to do it again. In which case, we should all rest on that point: the challenge to them to adhere to the law.

I'm not willing to break the law and comply with the NHS's requests.
Fr0dO,

The NHS did not "challenge the law". It made the decision to respond to a legal challenge to a decision made by the applicants/appellants to challenge the NHS decision. In Coughlan the initial application for judicial review was heard by Hidden J. The NHS decided to appeal agains this decision, not least because the High Court decision did not set a binding precedent, whereas a Court of Appeal one does. An appeal is not a challenge to the law - it as a hearing under the law. The NHS no more "challenged the law" than a husband who defends himself against a divorce petition by his wife does. It challenged the decision made by Hidden J in the inital application - not the statute. The appeal process in judicial reviews allows a respondent to defend its decision, and the NHS has a duty to challenge such decisions. Bear in mind that in English civil law appeals are not automatic - you need leave to appeal and there has to be a point of law involved. In Coughlan the need for clarification was such that not only the NHS, but the Secretary of State for Health (two separate legal personalities), and the Royal College of Nursing were joined as parties to the litigation.

What the NHS cannot do is initiate a formal challenge agains existing statute law because it feels like it. What it is obliged to do is defend the position it takes if it believes that it has taken a lawful and correct decision, or if it needs clarification. The latter incidentally, is not unusual. In my past career (non-NHS) I came across more than one was inviolved in a case where all parties agreed they didn't know the answer and the case was brought to agree further clarity.

I'm struggling to understand the relevance of the reference to Ian Perkins. For those who to know a little about the man, his own version of events is here:

http://www.nhsexpose.co.uk/My Story.htm

He lost at an employment tribunal and all the way to the House of Lords.

Wirralson
 

Wirralson

Account Closed
May 30, 2012
658
My apologies for not replying, but I have had a spell in hospital via an ambulance following a collapse at my GPs. Having a drip in my arm meant typing wasn't an option I should be able to reply later this week.