Support for Carers
By virtue of the 1995 Carers (Representation and Services) Act, you are entitled to have an assessment of your ability to care for your dependent child. In practice, many social services departments conduct at least a partial assessment of your needs when they assess your child under the provisions of the 1989 Children Act.
The 2000 Carers and Disabled Children Act introduced the opportunity for social services to provide Direct payments to carers of disabled children, the idea being that such payments allow carers to ensure that the services they receive are tailored to specific needs. With a few specific restrictions, direct payments allow you to buy exactly the service you wish to receive.
That said, social services are at very different stages in implementing this legislation and you may be having difficulties agreeing either such payments at all or the amount of money you should receive.
If you care for a disabled adult you may well be very anxious about seeking help.
Research consistently shows that people are afraid to ask for assistance because of their fear that they will be criticised for asking, or that social services will ‘take over’. In fact, the law is there to help.
You may have to ask the local social services to conduct an assessment of the person for whom you care. They must do this if you ask. You should quote Section 47 of the National Health Service & Community Care Act 1990. What this does is require social services to investigate the circumstances of the disabled person you are looking after. At the same time, ask for an assessment in your own right under the Carers Act 1995.
Social services are not allowed to refuse the assessment request, although they can decide on the size and scope of that assessment, depending on the severity of need they think exists. If the assessment does not appear to provide proper help, consider complaining to the local authority. Ask for :
- a full explanation in writing as to what needs have been identified
- how the authority plans to meet these and
- why some needs are left unmet.
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Experiencing a dispute with social services?
All local authorities publish information which enables individuals to bring a complaint. The basic structure of complaints procedures is strictly regulated, but authorities vary in the manner in which they implement them. Complaints procedures have three stages. For anything other than what might be described as a very small matter, we advise clients to complain at stage two, that is, the “formal” stage of the process.
A complaint can be made either on a form provided by the authority or by letter. Either way, you should be as clear as possible what your complaint actually is.
Each complaints process has a timescale imposed on it, typically 28 days. In practice, very few (we can’t think of any!) local authorities stick to this requirement. Sometimes this is crucial. Keep a close check on dates when you complained, when you received a reply, and the time taken by the authority to progress your complaint. A local authority’s failure to act promptly could be a matter of serious complaint in its own right.
The complaints process is one in which the involvement of lawyers is very much resisted. Formal guidance recommends that the process be as informal as possible. If however you feel that your complaint has not been dealt with properly you may want to take legal advice.
Ultimately, once the complaint process is finished, if you remain unsatisfied you may be able to bring the outcome to the attention of the Commissioner for Local Administration in England and Wales (the Ombudsman). For more information, click here: www.lgo.org.uk
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Experiencing discrimination?
The incorporation of the European Convention on Human Rights into the 1998 Human Rights Act now mean that overt discrimination can be challenged in certain circumstances. Employment, education, and public services are now all fields where such discrimination is unlawful, and redress can be sought through both Tribunals and sometimes, the Courts.
The government’s own “watchdog” on such matters is the Disability Rights Commission which can be accessed by clicking www.drc.org.uk. The Commission has a great deal of information about discrimination, and how to challenge it.
In education, children with special educational needs who are disabled, and disabled children generally, must not be treated in a manner which, had they not been disabled, would not have applied.
We at Ridley & Hall are committed to advising parents in this field, and would welcome your call.
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Experiencing problems with Direct Payments? Central government is currently committed to the idea that more and more disabled people will be provided with direct payments to enable them to plan and structure the care they receive with as much control over the process as possible. Some local authorities have quite sophisticated schemes in place, others are still at the very early stages.
The issues that we most hear about at Ridley & Hall relate to either
- the (insufficient) number of hours allocated to the individual for direct payments, or
- the actual amount of money paid per hour which, especially for people with complex needs, is often said to be insufficient to enable staff to be recruited and retained.
To make direct payments, the authority needs to understand your current levels of need. This is usually obtained through what is known as a “section 47" assessment, which will result in the publication of a Care Plan setting out how the authority proposes that your needs are met. You should make your wish for direct payments known to the authority.
Ultimately, challenges against local authorities and their decisions in relation to direct payments may have to be brought to the Administrative (High) Court in the form of an application for Judicial Review of the local authority. You may need to have complained to your local authority before doing so. If you think you have reason to challenge your local authority in relation to direct payments, please call us.
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Concerned for an elderly or frail patient? Residential care for elderly people has been an issue frequently in the headlines in the last decade. Most people are aware that, unless you live in Scotland, the cost of residential and nursing home care has to be met by the individual receiving the care until or unless they have savings of less than £18,000.
For permanent residential or nursing home care, the first twelve weeks of the stay are assessed very differently than in the period after that time. This means that if you have responsibility for managing the financial affairs of a frail elderly person, you do not have to start worrying immediately about finding the money to pay bills.
The rules which apply to ‘disposing’ of assets such as houses, those affecting married couples, and the individual social security benefits to which there may (or may not) be entitlement are very complex.
Wherever you live, you will find extremely helpful general information by clicking here:
www.ageconcern.org.uk.
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What can I do to challenge an assessment that my relative must pay for their own care? Over the last few years, many individuals have faced the prospect of selling their home, or realising other assets, in order to pay the cost of residential or nursing home care. There is, of course, a major difference between NHS care and that arranged by the social services department in that the former is free of charge and the latter attracts a charge, dependent on the means of the individual.
Two major court cases (R –v- N & E Devon Health Authority ex parte Coughlan [2000] 3 All ER 850, and R (Maureen Grogan) v Bexley NHS Care Trust (1) south East London Strategic Health Authority (2) Secretary of State for Health [2006] EWHC 44) have been instrumental in requiring health authorities to review their 'eligibility criteria' for funding, fully, or in part, the costs of care provided to individuals. These cases, along with several Ombudsman decisions, raise the prospect of the recovery of previously-paid monies, and the safeguarding of personal finances, subject to success appeal. We can help by preparation for and representation at such appeals.
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For further information please call us on 01484 538421 or contact us via the online enquiry form. |
