Many elderly people need care for a variety of reasons, including short- or long-term illness, reduced mobility and incapacity. However, the need for care can be a source of anxiety, both because of the costs involved, and because the law surrounding how a person's care needs are assessed and how funding for care is allocated can be very confusing.
If you need care, whether at home or in a residential or nursing home you may be entitled to funding for all, or part, of the cost. Expert legal advice could be essential to ensuring that you receive the care and the funding you are entitled to.
Our Elderly Client Services team has a wealth of Community Care Law experience, and could help with a variety of legal problems relating to health and social care needs, including:
Our work in this area usually involves challenging the decision of a public body such as a Local Authority or Health Trust, and we use the most appropriate form of challenge in each case. This can mean that we use internal complaints procedures of appeals. We also use the Public Law challenge of Judicial Review as a remedy.
The care funding a person is entitled to depends on whether their care needs are assessed as health care or social care needs. How a person's needs are assessed has a direct impact on the type and level of care funding they are entitled to receive and whether their funding will be provided by the Local Authority or the National Health Service (NHS).
Health care needs can include any care or treatment that has to be provided by a medical professional, such as a registered nurse or a doctor. In cases where a person's need is assessed primarily as a health care need, the NHS is responsible for funding all nursing care.
Social care needs are needs that can be met by staff with no medical training, for example help with dressing or eating, with mobility or help around the home. Where a person's need is assessed primarily as a social care need, care is provided by the Local Authority and the person may have to make a contribution towards the cost, subject to a means test.
Where a person has both a health care need and a social care need, the law surrounding assessment can be extremely confusing. However, two landmark cases highlighted this problem and led to the Courts issuing specific guidance to the NHS and Local Authorities:
Ms Coughlan was tetraplegic, doubly incontinent, partially paralysed and suffered severe headaches and as a result she required round the clock care. When her residential home was considered for closure, the Health Authority proposed that her care be passed to the Local Authority. Had responsibility for Ms Couglan's care passed to the Local Authority she would have had to pay a contribution towards the cost of her care, subject to means testing.
The Court of Appeal held that the eligibility criteria Ms Coughlan's Health Trust used for health care services were unlawful and that the Local Authority could provide nursing care in conjunction with social care and residential accommodation but only to a limited extent.
Two tests were proposed by the Court - the "quantity" test and the "quality" test. These tests are to establish whether a person's care needs are primarily for health care or social care. Where a person's need is primarily for health care, the NHS is required to provide full funding for nursing care.
Mrs Grogan was assessed by her Local Health Authority as not being eligible for continuing care funded by the NHS. This decision was overturned by the Court. The Court found that, as in Ms Coughlan's case, the Health Authority's eligibility criteria were unlawful.
You can read more about these cases at the website of the Disability Alliance (link will open in a new window*)
If you need advice or representation in relation to a care assessment, or any other community care issue, our Elderly Client Services team may be able to help you. Contact our expert solicitors for more advice and information specific to your situation.
*Switalskis Solicitors LLP is not responsible for the content of external websites