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BEWARE OF ANNUAL REVIEWS

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 for him to reside in the family home (respite, day care and transport
these types of funding differs, the basic principle is the same – where arrangements need to remain unchanged to continue to support)’.
an individual is assessed as being eligible for support, the NHS or Local However, Wiltshire County Council then took steps to reduce the
Authority are responsible for meeting the identified needs of that respite and transport provision, claiming that what the family were
HOW WE HELP
person. receiving was in excess of the maximum he should be receiving based
on his needs. The Ombudsman did not accept this and criticised the
Regular reviews, usually on an annual basis, are required not only to Council for failing to act in accordance with the Care Act. The Council
ensure that the person remains eligible for funding, but to make sure have agreed to review their policies.
that the care and support they are receiving remains adequate and
appropriate. Unfortunately, we are seeing more and more examples Individuals should always be reminded that they do not simply have
of an annual review being used as an opportunity for the person’s care to accept the outcome of these assessments. In the first instance their
provision to be cut, without evidence to support this. In some cases, concerns ought to be raised with the responsible body so that there
we are even aware of the individual or their representatives being is an opportunity to resolve the dispute at local level. Where this is
told, in advance of the review, that the purpose of the meeting is to unsuccessful and there are no justifiable grounds for the changes,
reduce the level of support available. 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.
This, of course, can have devastating effects. If an individual who has
been receiving NHS Continuing Healthcare funding (a fully funded While court proceedings can be expensive, it is reassuring for clients
package of care for individuals who have a “primary health need”) to know that Legal Aid funding is available for these most severe cases,
is told that they are no longer eligible for this funding, they will and Moore Blatch hold a contract with the Legal Aid Agency for this
suddenly find themselves responsible for their own care fees. They type of work.
may be entitled to a contribution from the Local Authority, depending
on their means, but if they have assets in excess of the threshold There are strict time limits for issuing a Judicial Review and it is
(currently £23,250) then they will have to meet the cost of their care essential that expert legal advice is sought at the earliest opportunity.
in full. These individuals are likely to have substantial packages of We have detailed knowledge of both the National Framework for
home care or be in a residential or nursing home setting due to the NHS Continuing Healthcare and NHS-funded Nursing Care and the
complex nature of their care needs. Therefore, the fees are likely to Care Act 2014 and the responsibilities of the public bodies involved.
be significant. Individuals often have to sell their home to pay for care We can provide advice on the merits of a challenge or Judicial Review
fees which can be very upsetting for them and their family. entirely free of charge and with no obligation to the client.

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 Mea Fyfe
individual’s care package following a review. In the summary of the Solicitor
assessment it stated “all support needs are being met – no change 023 8071 8108
required…, ‘Mrs N is happy to continue as Mr P’s main carer and mea.fyfe@mooreblatch.com