Best interests and mental capacity
Nicholas Endean | 04.05.2018
02.05.2018 Mea North
Anyone who receives a financial contribution towards their care fees, either as a result of NHS Continuing Healthcare funding, or as a result of a financial assessment undertaken by the Local Authority, ought to have their needs assessed regularly. While legislation governing the assessment process and entitlement to these types of funding differs, the basic principle is the same – where an individual is assessed as being eligible for support, the NHS or Local Authority are responsible for meeting the identified needs of that person.
Regular reviews, usually on an annual basis, are required not only to ensure that the person remains eligible for funding, but to make sure that the care and support they are receiving remains adequate and appropriate. Unfortunately, we are seeing more and more examples of an annual review being used as an opportunity for the person’s care provision to be cut, without evidence to support this. In some cases, we are even aware of the individual or their representatives being told, in advance of the review, that the purpose of the meeting is to reduce the level of support available.
This, of course, can have devastating effects. If an individual who has been receiving NHS Continuing Healthcare funding (a fully funded package of care for individuals who have a “primary health need”) is told that they are no longer eligible for this funding, they will suddenly find themselves responsible for their own care fees. They may be entitled to a contribution from the Local Authority, depending on their means, but if they have assets in excess of the threshold (currently £23,250) then they will have to meet the cost of their care in full. These individuals are likely to have substantial packages of home care or be in a residential or nursing home setting due to the complex nature of their care needs. Therefore, the fees are likely to be significant. Individuals often have to sell their home to pay for care fees which can be very upsetting for them and their family.
Where an individual remains eligible for funding, either from the NHS or Local Authority, but on review is told that they are not entitled to the same level of support they have previously been receiving, the effects can be just as significant. Without appropriate support in place, individuals may struggle to perform activities of daily living, or be unable to participate in all the activities that they previously enjoyed, relying more heavily on family and friends to “fill in the gaps” and provide the additional support they require. In the most extreme cases, individuals can be left with unsafe packages of care that significantly increase their risk of harm.
It is essential to remember that neither the NHS nor the Local Authority are entitled to cut a person’s support simply because they have been told to make cuts or save money on an expensive package of care. There is a statutory duty on both of these public bodies to meet the identified needs of an individual where it is shown that the person is eligible for their support. This means that unless the package of care provided is suitable and sufficient to meet the assessed needs, the body responsible is acting unlawfully and may be subject to legal proceedings.
In a recent report by the Local Government and Social Care Ombudsman, Wiltshire County Council were criticised for cutting an individual’s care package following a review. In the summary of the assessment it stated “all support needs are being met – no change required…, ‘Mrs N is happy to continue as Mr P’s main carer and for him to reside in the family home (respite, day care and transport arrangements need to remain unchanged to continue to support)’. However, Wiltshire County Council then took steps to reduce the respite and transport provision, claiming that what the family were receiving was in excess of the maximum he should be receiving based on his needs. The Ombudsman did not accept this and criticised the Council for failing to act in accordance with the Care Act. The Council have agreed to review their policies.
Individuals should always be reminded that they do not simply have to accept the outcome of these assessments. In the first instance their concerns ought to be raised with the responsible body so that there is an opportunity to resolve the dispute at local level. Where this is unsuccessful and there are no justifiable grounds for the changes, an individual can ask the court to review the decision and make a determination as to its lawfulness. This is known as a Judicial Review.
While court proceedings can be expensive, it is reassuring for clients to know that Legal Aid funding is available for these most severe cases, and Moore Blatch hold a contract with the Legal Aid Agency for this type of work.
There are strict time limits for issuing a Judicial Review and it is essential that expert legal advice is sought at the earliest opportunity. We have detailed knowledge of both the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care and the Care Act 2014 and the responsibilities of the public bodies involved. We can provide advice on the merits of a challenge or Judicial Review entirely free of charge and with no obligation to the client.