Care services for the elderly - legal advice

When it appears to a local authority that there may be a need for community care services to be provided to an individual who is resident in its area, that same local authority has legally binding duties to assess what the persons needs are and to make a decision as to whether to arrange these services.

Such services include things like equipment or adaptations to the person’s home to help them get around better or get into or out of the bath/up and down stairs etc. It also includes help and support provided to a person by paid carers or personal assistants to help them cope better and more independently with their disability.

The assessment of a persons needs for these types of services should be done in a reasonable time frame, as any delay may cause continued harm or detriment to a person in need.

This assessment process sounds simple, and in some senses it is – the local authority only has to be made aware of the “appearance” of need – that there “may” be a need for such services to trigger the duty to assess a person, or potential “service user”.

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In practice

However, in practice, what can start as a simple duty becomes complicated inasmuch as the assessor:

  1. May not assess the needs properly or thoroughly enough
  2. May not consider the needs to be an “eligible needs” –  ie needs which are of a sufficient level of seriousness to trigger the duty to intervene
  3. May delay in assessing the needs to the point where the situation no longer requires help or where the needs have increased or changed
  4. May take unlawful account of help being provided by family/friends and informal carers to the extent where it is (wrongly) decided that there is no duty on the state to provide or arrange help

Many local authorities are now using systemised approaches to assessing needs. These include what are known as Resource Allocation Systems – where a person is scored so many points depending on what needs they are assessed as having and what help they already get. The process then works out if the person is eligible to receive help and what individual budget can be spent on that person’s care.

Such systems are prone to error in our experience and – whilst it is not unlawful to use any reasonable system to administer and fund care to individuals – such systems should only lead to an indication of the level of need in any given case – they should not be the final arbiter.

Many people are afraid to ask for help. They may be getting some help and fear that by asking for more they are “biting the hand that feeds them” as we live in times when public authorities are trying to save money at all levels. Or they may fear that by asking for help (instead of saying they can manage), the council may want to put them into care and they would lose their independence partially or fully.

These concerns are understandable, but the law states that the assessment and arrangement of community care services are legal rights…not merely aspirations or charity.

Know you rights

Very often if a public authority makes a decision, it is all too easy to accept the decision – to believe “they must know what they are doing”.

Our experience is that in this area of law there are many, many challenges which can be made to decisions made by Public Authorities, or against delay or inaction by them.

Stephensons has been involved in numerous high profile cases involving community care assessments and service decisions.

In addition to the question of the right care for individuals is the question of the funding of that care – either in the persons’ own home or – if appropriate – in a residential or nursing care home.

Many people are facing the nightmare of not knowing how they may be charged for care, what means-test applies, who is responsible for arranging the care, if the care can be provided free by the NHS and whether their home will be used to pay for their care.

Such concerns mean people often defer a decision on care – even when they clearly need help…or they simply ignore the problem.

Stephensons has a great track record of securing services for people, of maximising their income through savings and income disregards, through claiming the correct allowances and benefits and through the proper application of the law relating to owned property etc.

We also have a Wills and Probate department which can assist in care planning and powers of attorney.

For advice call our residential and nursing home care experts on 0175 321 5096 or complete our online enquiry form and a member of the team will contact you directly.

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