Rachel Burley Stower, Health and Social Care Solicitor, answers Case Managers’ questions on Community Care Law.
A Community Care Lawyer navigates the statutory provisions, guidance and case law that regulates the relationship between a person with disabilities, social services and the NHS.
Many of your vulnerable clients with Personal Injury (PI) trusts received their settlements many years ago, based on them receiving interest on their lump sum, sufficient to cover the cost of their future care. As interest rates on savings have dropped significantly, their capital is not earning sufficient interest to meet the cost of care for the rest of the individual’s life. This is particularly a problem as people’s care needs increase as they get older, yet their available funds have substantially reduced.
In addition, many of your vulnerable clients do not receive 100% settlements and therefore have to contribute to their care package over and above their compensation monies. For example, if your client was involved in a road traffic accident, but was not wearing a seat belt, they may have their award reduced by 25%. This means for every £1 spent on care they contribute 25p. A person with a £2,000 per week care package will contribute £500 per week – a large sum over their life time.
Where you are acting as a Professional Deputy or Trustee for a child, or an adult lacking capacity, you will usually manage their PI settlement. The Office of the Public Guardian (OPG) Professional Deputies standards guidance makes it clear that the Professional Deputy has a duty to claim all sources of public funding for which their client is eligible.
Finally, those people without fault-based injuries do not have settlements and will need to rely heavily on publicly funded health and social care services.
The two main sources of publicly funded care are Local Authority Social Services and the NHS. Some people may get a jointly funded package. Either type of funding can cover the cost of care in a residential setting or at home. Both types of funding can be provided as a Personal Budget so your client can purchase and manage his or her own care, rather than having the care provided directly by Health or Social Services.
No. NHS Continuing Healthcare (NHS CHC) is non-means tested and the PI settlement must be ignored. Social Services will do a means test. However, current law and guidance requires the Local Authority to ignore the PI settlement. We can help if Health or Social Services refuse or reduce a support package because of your client’s PI settlement.
Some PI settlements include undertakings which prevent your client making an application for Social Services funded care or NHS CHC. While an undertaking is onerous, it is always worth getting advice before discounting the possibility of seeking public funding. For example, in a recent case I dealt with, the undertaking prevented the Deputy from seeking social care support from the Local Authority under a specific piece of legislation that is no longer in force. This meant that their client was entitled to social services support under the Care Act 2014.
Your client qualifies for NHS CHC if you can show that they have a primary healthcare need. This is a complex area of law and practice. At present, less that 55,000 adults across England qualify for NHS CHC – but this is always worth exploring.
Yes. For example, my client Robert had an accident, resulting in a brain injury and a condition that means that he must not exceed a certain number of calories in food, or a certain amount of liquid each day. His memory problems mean that he can’t remember eating and drinking, so he must be monitored at all times. He received a low score on the DST but due the nature, complexity, intensity and unpredictability of his needs, he was found to have a “primary health care need” and was awarded NHS CHC. This funds his care at home package and keeps him safe.
Children and young adults aged 0-25 are eligible for an Education, Health and Care Plan (EHCP) if they have Special Educational Needs. NHS Children’s Continuing Care for children under 18 has different eligibility criteria and the NHS and Local Authority often offer a joint package of care.
Like NHS CHC for adults, NHS CCC for children is not means tested and therefore your client cannot be charged for the services provided by the NHS. The NHS should fully fund the entire care package for those with “primary health care needs”.
Special Educational Provision for disabled children in their EHCP must be secured by the Local Authority and cannot be charged for. However, the situation for children’s social care under the Children Act 1989 and Chronically Sick and Disabled Persons Act 1970 is less clear cut than it is for adult clients. Most Local Authorities do not attempt to charge children. However, our solicitors can advise if social services attempt to charge your client against the PI trust.
Yes: one of my cases involved Patsy, a young woman with birth injuries. She had a 24-hour care package which was funded through her PI settlement. However, due to the increasing cost of care and a reduction in her capital, she was struggling to meet costs. On investigation, I found that the Local Authority had assessed Patsy, but refused to fund her care due to her PI settlement.
I sent a challenge letter, pointing out the charging regulations and disregards. Social Services backed down and put a funded care package in place.
Yes. Another client I assisted was a man who had sustained two brain injuries – one at birth and one a few years later, after contracting meningitis, and had a PI settlement. My client needed 24-hour care and having bought a disability-adapted property for him to live in, the remaining settlement was insufficient to meet his care needs for life. This became a problem as his mother could not fully contribute to his unpaid care as she grew older.
My client’s brain injury manifested itself in unpredictable violent mood swings, resulting in a risk of injury to him, his carers or members of the public. His mother had never had any assistance from the NHS or Social Services. The bank who managed his PI trust referred the family to us. After a battle with two local Clinical Commissioning Groups (CCGs) about which was responsible for my client, he was assessed, found to have a “primary healthcare need” and awarded NHS CHC.
You can challenge this situation, as I did for a child, Leah, who had suffered a brain injury at birth. Leah was cared for at home with a 24 hour care package, which included suctioning, catheterisation and PEG feeding. The joint assessment by NHS and Social Services determined that my client required only 40 hours of care a week. Her parents were expected to provide the rest of her care. Leah was awake much of the night as well as during the day. This meant her parents were providing 128 hours care each week with little respite.
Leah’s Professional Deputy took advantage of our Services for Professional Deputies to assist in challenging the joint funded package. It was immediately clear that the 40 hours per week was not a lawful or reasonable care package, given Leah’s extensive needs. I obtained an independent nurse assessor’s report and sent a strongly worded Letter Before Claim to the CCG. The CCG carried out a new assessment of Leah, and agreed she needed a 24 hour care package. Leah’s Deputy now receives a Personal Health Budget, allowing Leah’s mother to organise the best possible care package for Leah.
You will need to involve the Professional Deputy or Trustee. The Deputy needs to be satisfied that it is in your client’s best interests to instruct our Community Care and Education Law Team to investigate all public funding options to protect your client’s PI settlement. We will work closely with the Professional Deputy team and you, as the Case Manager, to support the best outcome for your client.
If you are a Case Manager and would like to find out more about how we can assist you and Martin Searle Solicitors Services for Professional Deputies & Attorneys, contact our community care and education law solicitors today on 01273 609911, or email email@example.com