SPECIALIST SOLICITORS CONTINUING NHS CARE FUNDING CAPPED FEE SCHEME
recent Panorama expose’ of the Government’s unlawf
The problem is that those most in need of our help are often incapable, through lack of mental capacity, to avail themselves of it even although many have sufficient resources whereas the families, who ultimately will lose out, often have the will to act but lack the resources.
In order to help people in this situation we are offering a capped fee scheme at £595 plus VAT which, particularly given what are often huge sums at stake, we feel is affordable and highly competitive. If the steps taken under our scheme do not result in nursing care being provided free when it is lawfully due we will consider taking matters further, advise you of the options available and likely costs involved"
A recent client said:
Full details of the scheme can be obtained by contacting Robert Campbell on 0870 2412139 or visiting .
The National Homes Swindle
THE CARE STANDARDS ACT 2000
Court Clarifies Right to Free Nursing Care
Thousands of people have been unlawfully forced to pay for their own nursing care despite a landmark court ruling in 1999.
In 1999 Pam Coughlan took her local health authority to court when they refused to fund her fees for staying in a nursing home. In that case the Court of Appeal essentially said that, as Ms Coughlan’s primary need was a health need, the local authority was barred from funding this because their powers and duties to support people under the National Assistance Act did not go that far. By inference, where the local Social Services authority’s powers ended, the NHS responsibility would begin.
This was important because, whereas NHS care is fully funded by the taxpayer and therefore free at the point of delivery, Social Services care packages are means tested and recipients have to pay if their means are sufficient. Accordingly patients with assets, a house for example, are often forced to sell them to pay for their care unless they can get free care under the NHS.
Greater certainty and less ambiguity is to be welcomed but home owners will find that the legislation severely curtails their rights and, essentially decides many areas of potential dissent in advance but against them by giving absolute power to the new regulations body the Care Standards Commission ("CSC ).
Homeowners who felt inspection officers were too powerful before will discover that, although the description omnipotence may be going too far, their regulatory armory is far greater than before and their hand is evident in drafting much of the Act and, of course, the standards themselves.
The CSA creates many new powers for inspectors some of which may cause a few raised eyebrows. For example:
"S.31(1) The registration authority may at any time require a person who caries on or manages an establishment or agency to provide it with any information relating to the establishment or agency which the registration authority considers it necessary or expedient to have for the purposes of its functions under this Part."
"(3) A person authorized by virtue of this section to enter and inspect premises may:
"(6) The person so authorised may, with the consent of the person mentioned in subsection (5)(b) examine him in private and inspect any medical records relating to his treatment in the establishment The powers conferred by this subsection may be exercised in relation to a person who is incapable of giving consent with or without the person's consent."
"S32(2) A person so authorised may require any person to afford him such facilities and assistance with respect to matters within the person's control as are necessary to enable him to exercise his powers under section 31 or this section."
"(3) A person authorised by virtue of section 31 to inspect any records shall be entitled to have access to, and to check the operation of; any computer and any associated apparatus which is or has been in use in connection with the records in question."
Whilst the detailed regulations under the CSA remain to be finalised the National
Minimum Standards themselves have been issued, at least for older people.
Legal Minimum Standards for care providers are an innovation. Hitherto local "guidelines" or the like have not had any force of law so that they have all been capable of challenge. This is a very important aspect of the new legislation in that it provides a whole raft of new legislative provisions with which care providers must comply or risk prosecution or cancellation proceedings.
The standards are obviously designed to drive quality up and those drafting them have recognised the critical importance to the provision of quality care of producing a soundly recruited, trained, disciplined and motivated staff team. Evidence of this will be required to satisfy the new regime and Robert Campbell & Company have produced a tool designed to provide homeowners with this.
for a description of our Integrated Personnel Management and Training System.
Apart from the fact that providers who do not comply with this will have to close we at Robert Campbell & Company see this as a positive development. A well recruited, trained, disciplined and motivated work force is likely to be happier and more stable, saving enormous costs generated by the care industry malaise, high staff tumover, and lead to the provision of a quality product -superb care. These are, or should be, every business person's objectives. Profitability should also be increased and regulatory interference reduced.
he CSA dawns a new age in care. It is right that this should happen now given the demographic outlook over the next 30 years but the central question remains - will funding be sufficient to provide for the excellence to which we all aspire?
The New Care Standards
The Care Standards Tribunal is actually the same body as that provided under the Protection of Children Act but it's ambit of operation has been widened to hear appeals in England and Wales against:
Decisions of the National Care Standards Commission in England and decisions of the National Assembly for Wales (NAW) in respect of establishments and agencies;
Decisions of the Early Years Branch of Ofsted in England and decisions of the National Assembly for Wales in respect of the registration of childminders and day are providers for children under 8 years old;
Decisions of the National Care Standards Commission in England and the National Assembly for Wales (NAW) in respect of a refusal to waive disqualification relating to the provision of, management or financial involvement in, or employment in, a children's home under Section 65 of the Children Act 1989.
Decisions by the Secretary of State for Health in respect of inclusion on the list of those considered unsuitable to work with children;
Decisions by the Secretary of State for Education and Skills to prohibit or restrict employment of an individual in schools list 99);
Decisions of the Secretary of State for Health in respect of inclusion on the list of those considered unsuitable to work with vulnerable adults;
In due course the Care Standards Tribunal will be asked to handle other appeals and applications including in relation to the General Social Care Council, decisions of the Chief Inspector of Schools and decision of OFSTED.
With this wider range of responsibilities than that of the old Registered Homes Tribunal ("RHT") is likely to come a more "court like" set of procedural rules dealing in more detail with the manner in which cases are disposed of in contrast to the now almost defunct RHT rules (there are still RHT cases proceeding under the old rules due to the transitional provisions which deal with the disposal of cases pending before April this year) which were very brief and left most of the "mechanics" of hearing the cases to the discretion of the RHT itself which was authorised to regulate it's own proceedings.
The more important departures from the previous rules planned in the new set appear to be:
The determination of appeals without an oral hearing where requested by the appellant;
Preliminary hearings where the President or nominated chairman directs that there should be such a hearing or where either party (with the permission of the President) requests such a hearing; enabling the president or nominated chairman to find in favour of the opposing party where the other party fails to comply with his directions;
Enabling the President or nominated chairman to issue a costs warning before a hearing and the Tribunal to issue a costs order following a hearing where in his/their opinion the appeal has not hope of succeeding or where the party has acted unreasonably in bringing or conducting the appeal proceedings;
Presentation of evidence and particular provisions in relation to the giving of evidence by children and vulnerable adults;
Provision for the Tribunal to review its decision.
There will be different procedures for different types of matter intended to reflect the different nature of appeals and type of appellant between the various functions of the tribunal.
First Party Top Ups
In case anyone missed it, Charges for Residential Accommodation ("CRAG") amendment 16 was issued in October last year allowing, for the first time, certain residents to top up their own fees so that they can go into more expensive accommodation than the paying Council would "otherwise expect to pay".
However this only applies if residents have either accessed the 12 week property disregard or are subject to a deferred payments scheme.
The Local Authority Circular ("LAC") announcing the new provisions contains an interesting piece of guidance to local authorities in relation to what they would "usually expect to pay" (the, rather strange, definition of how they would arrive at the maximum fee they would agree contained in the Choice of Accommodation Directions 1993). I have always felt this provision more or less gave Councils carte blanche to set the limit but the LAC says:
The additional Payments Regulations only allow residents to top-up if they have either accessed the 12 weeks-property disregard or are subject to a deferred payments agreement. Once the value of the home is realised, they will be able to support themselves in a way that suits them best. To deny them choice until the home is sold would be unfair.
The interesting words are "….it's usual cost was sufficient to allow it to provide residents with the level of service they could reasonably expect if……"
Many would argue this is simply not being followed and that it could be demonstrated with evidence that the fees paid do not cover the cost of this provision. The guidance is issued under S7 (1) of the Local Authority Social Services Act 1970 and, therefore, should be obeyed as a matter of Law. One wonders whether this may be of assistance in the uphill battle the industry faces year on year for proper funding in respect of local authority placements.
STATEMENTS OF PURPOSE
The Care Homes Regulations 2001 ("CHR") contain a Regulation, Reg. 4 (1), requiring registered persons to produce a written statement called a Statement of Purpose ("SOP") consisting of:
(a) a statement of the aims and objectives of the care home;
(b) a statement as to the facilities and services which are to be provided by the registered person for service users; and
(c) a statement as to the matters listed in Schedule 1.
CHR 43 (1) renders failure to comply with Reg 4 an offence.
CHR 43 (2) & (3) provides for the service of a warning notice (similar to the old Reg.20 and Reg. 15 notices) that give registered persons an opportunity to comply or else be prosecuted.
CHR 16 (1) requires the registered person to provide all of the facilities listed as being available in response to CHR 4 (1)(b)
CHR 43 (1) renders failure to comply with CHR 16(1) an offence
As providers may not always be able to control to supply of facilities and services to be provided it would be prudent for them to couch the 4(1)(b) statement in as general terms as possible.
Although failure actually to conduct the home in accordance with the statement provided in response to CHR (1)(a) and (c) are not in themselves direct offences it is the writer's view that, in considering any proceedings under any other "conduct" CHR the Court may take these statements evidentially into account, similarly in relation to any proceedings for cancellation of registration. This is particularly so in relation to "fitness" issues where the breaking of an "undertaking" might be relied upon to show a lack of integrity.
Susan Strickland runs a care home in Hertfordshire. In 1995, after a history of disagreement with Hertfordshire Registration and Inspection Unit, her home was closed down by emergency order on the ground that there would otherwise have been a serious risk to the life, health or wellbeing of residents.
Mrs Strickland had had no notice of the fact that an emergency application was to be made, despite my being in negotiation with the authority at this time, and the home was closed immediately, all residents being taken to other homes, many in great distress. A substantial number of the residents soon died, although no one can say if that was caused by or contributed to by the trauma of the closure. What was clear, however, was that Mrs Strickland faced very substantial losses and possibly financial ruin.
One year after the closure our appeal to the Registered Homes Tribunal was heard and, extraordinarily (I don’t think it had happened before) a submission by us akin to "no case to answer" was made after the authority’s evidence had been heard and allowed. We had won without calling any of our numerous witnesses.
The basis of the submission was that the officers had not visited the home during the 6 days preceding their application for the emergency order and could not, therefore, say what conditions existed in the home at the time they were telling the magistrate that there would be a serious risk. Their "evidence" was historical.
In the meantime Herts had issued a separate proceeding to cancel Mrs Strickland’s registration on the ground that she was unfit and an application that Mrs Strickland had made to manage her own home was refused. About another year passed pending the hearing of her "fit person" appeal when, on the afternoon of the day before the hearing was due to start, the Council faxed a letter to the tribunal saying they wanted to withdraw. The tribunal subsequently re-instated Mrs Strickland’s registration and, some 7 ½ years after the original blow, this tenacious woman is getting back on her feet, filling the home and battling on.
Mrs Strickland is now suing for compensation. The main plank of her argument is that the Council were, at the very least, negligent in the way they treated her and have caused her very substantial loss.
For years now the law in relation to this kind of action has been firmly tilted against home owners. The rot set in with a case called Martine in 1993 that established, in effect, that Registration Authorities did not owe home owners a duty to take care in the exercise of their functions. The rationale for this was essentially that for them to owe such duties may produce a conflict of interest between that and the clear duties they owed to residents. Martine was followed by a line of other cases unhelpful to our cause.
In the light of this Herts decided to apply for Summary Judgment. That is to say it submitted the law was so clearly against us that we had no chance of succeeding at trial and therefore our claim should be struck out.
The matter came before a High Court judge recently. Mrs Strickland was represented by Leading and Junior Counsel, so important is the issue at stake for her.
The Council’s lawyers put forward a number of alternative arguments in support of their contentions and the decision was reserved.
When the reserved decision was handed down it contained the following passage:
"There is no doubt, however, that the law has moved on since the decision of the Court of Appeal in Martine and that of the House of Lords in X v Bedfordshire County Council. It is well established that it is inappropriate to grant summary relief in respect of a claim which depends on principles of law which are in a state of flux or development: see e.g. E v Dorset County Council (1995) 2 AC 633. Moreover, so far as the vexed question of whether a duty is owed by local authorities in the exercise of statutory functions is concerned it is virtually beyond question that the law is indeed in a developing state. In Douce v Staffordshire County Council (2002) EWCA Civ.506 the Court of Appeal were addressing an appeal from Rafferty J. who had refused an application for summary judgment made by the defendant county council in respect of a claim brought against them in their capacity as the "registration authority" under the Registered Homes Act 1984. The appeal was dismissed and the court expressed its thanks to counsel for their assistance "in changing legal landscape". Both the Judge and the Court of Appeal were of the clear opinion that "we are here in an area of developing jurisprudence and considerable uncertainty when… we are dealing with the tortuous liability of local authorities entrusted with a regulatory function".
We have won the battle – now for the war!
It has to be said there is no guarantee the court that eventually tries the case will agree with the judge who heard the Summary Judgment application. However, that one judge can find it in himself to acknowledge Mrs Strickland may very well have rights, whereas previously the door has been slammed very firmly in such home owners’ faces, is a very significant departure from the accepted position on this issue.
It must be right that home owners should have some form of redress where regulatory authorities act so incompetently as to cause them such horrendous damage. That this may give rise to a fine balancing act between the duties owed to residents and those whom they police is no bad thing. The absence of any safeguards for home owners has for too long been a window for abuse of power with impunity. If Mrs Strickland is successful this will, at last, be closed.
Special Report on commissioning
of adult social care