Q. How do I know if I am entitled to assistance?
A. The first stage in identifying whether any services are required to meet a person’s needs is for the appropriate authority to carry out an assessment. This will establish what the needs are, what needs to be done to meet those needs and how that can be done. This will then result in the preparation of a care plan.
We can assist you in ensuring that the appropriate statutory service is approached with an assessment request and that the process is as smooth as possible.
Q. What is a Care Act Assessment?
A. Following the implementation of the Care Act 2014 local authorities’ duties to adults with care needs and their carers is much clearer.
The first stage in identifying whether any services are required is an assessment under Section 9 of the Care Act. You may be able to ask for this yourself. This will establish what your needs are, what can to be done to meet those needs and how that can be done. This will then result in the preparation of a care plan.
Carers now also have a legal right to a carers assessment. This may identify whether they are entitled to receive assistance such as practical support, equipment and respite.
The assessment process can be daunting and confusing. Sometimes people are refused assistance before an assessment has even been undertaken. People are often concerned that the correct procedure was not followed and therefore conclusions are reached that are not lawful.
We have a great deal of experience in advising people through the assessment process and challenging outcomes which are unjust.
Q. What will happen after the Assessment?
A. Once the assessment has been completed the next stage is for a Care Plan to be produced. This will identify what your needs are, what will be done by the Authority to meet those needs and how that can be done. It should also include a section explaining the needs that they cannot meet and why.
You may also be asked to engage in a financial assessment at this time to determine if you should pay for some or all of your care.
Q. How long will it take for a Local Authority to provide me with support?
A. There is no statutory timescale for an assessment. However, it must be carried out within a reasonable period of time which we expect to be between 4-6 weeks. You should be advised of the likely timescale at the outset of the assessment process.
Q. What is a Decision Support Tool or DST?
A. Adults with complex health needs may be eligible for continuing healthcare. This is where the NHS pays for all of the costs of caring for the adults health-related needs.
The first stage in obtaining this funding is by requesting an assessment. A Multi-Disciplinary team will be allocated to complete a Decision Support Tool (DST). The team will be made up of professionals from both the health and social care fields. They will use their clinical skill; expertise and evidence-based professional judgement to consider what needs you have in the specialist domains.
They will be assessing whether there is a duty, not the package of care they believe you will need. There are different levels of need in the domains and once the score has been obtained they will be considered alongside the nature, unpredictability, intensity and complexity of the needs to reach an agreed recommendation for funding. This will then be put to the funding body for approval.
We can help you prepare for this process.
Q. How long will it take for the DST to be approved?
A. The statutory timeframe for a DST is 28 working days. If you have experienced delays then we may be able to assist you in requesting that it be expedited.
Q. What is the process for getting assistance for my disabled child?
A. Children with disabilities are legally defined as “children in need” under the Children Act 1989. This means that all local authorities have a responsibility to safeguard and promote their wellbeing. In meeting this duty they are required to promote the upbringing of children by their families by providing a range of services to meet those children’s needs.
The first stage in identifying whether any services are required to meet a child’s needs is a child in need assessment. This will establish what the child’s needs are, what needs to be done to meet those needs and how that can be done. This will then result in the preparation of a child in need plan.
Parents with children in need also have a right to a carers assessment. This may identify whether they are entitled to receive assistance such as practical support, equipment and respite.
The assessment process can be daunting and confusing. Parents are often concerned that the correct procedure was not followed and therefore conclusions are reached that are not lawful.
We have a great deal of experience in advising parents through the assessment process and challenging outcomes which are unjust.
Q. How do I challenge an assessment?
A. This will depend on the assessment that you have had. There is currently no appeals process for local authority assessments so the first stage will be to consider whether to challenge it through a complaint or a Judicial Review, this will depend on the seriousness of the failings.
NHS Continuing Healthcare - If a decision is reached to refuse funding we can investigate the merits of an appeal and assist you. The appeals process is twofold; firstly there will be a Local Resolutions Meeting and if you still disagree with the outcome then an Independent Review Panel can be convened through NHS England. We can provide advice and representation throughout this process.
If eligibility for support is agreed we can advise you on options for the delivery of that support challenge any delays in implementing it and challenge a care package if you feel it is inadequate.
Q. What is a Judicial Review?
A. Judicial review is a process by which the courts review the lawfulness of a decision made (or sometimes lack of a decision made) or action taken (or sometimes failure to act) by a public body. It is mechanism by which a judge considers whether a public body has acted in accordance with its legal obligations and if not, can declare a decision taken by it to be invalid.
Decisions by public bodies can be challenged on a number of grounds. If:-
- It has acted in a manner which is in breach of the law;
- It has acted unreasonably; or
- It has breached the human rights of the person involved.
Q. What decisions can the Court of Protection about residence and care?
A. The Court of Protection can also make decisions regarding the health and welfare of those lacking capacity to make complex decisions including medication treatment, residence and care. Where there is a dispute between family members and/or statutory authorities in respect of such issues an application can be made for the Court to determine what is in the best interests of the individual concerned.
Parents of children with long-term disabilities may have concerns that once their child reaches the age of 18 they will no longer have parental responsibility for them. They may wish to explore the powers that the Court could grant them in the decision making for their child post 18.
We can assist you at every stage of the process, from dealing with concerns before Court applications are made to representing you at the final hearing.
Health and Welfare deputyships, although rare, can be applied for in exceptional circumstances. We can advise you on whether we believe you should make an application taking into consideration all of the necessary factors in the case.
Q. I own my home; will I have to pay for the care I receive?
A. NHS funding should be free at the point of delivery. We can advise you if you are being charged for services that should be free.
Local Authorities’ have a duty to charge for the services they provide to those with savings over £23,250. Those with less money may have to pay a contribution towards the cost of their care.
Often the charges are unaffordable because local authorities have not taken all of the circumstances into account.
There are certain assets that local authorities cannot take into consideration in the financial assessment for social care in certain circumstances such as the home, personal injury trusts, certain types of investment bonds with life assurance elements, etc.
We can investigate the relevant legislation and advise you on whether the charging provisions have been lawfully applied.
Q. Will I have to sell my home to pay for my care fees?
A. Your ability to pay for care provided by a Local Authority will be determined through a means test taking into account all of your circumstances, including whether you own the home jointly with someone else.
Your home will not be included if you're arranging care and support at home and may not be included if you live with a partner, child, or a relative who is disabled or over the age of 60.
Local Authorities have a duty to charge for the services they provide to those with savings over £23,250. Those with less money may have to pay a contribution towards the cost of their care.
Q. I received an award for a Personal Injury, will I have to pay for my care?
A. The law on double recovery is strict and prevents state funded care where there has been a personal injury award to include the costs of a care package.
However, in cases where there is contributory negligence and the claimant recovers less than 100% of their damages they may need to seek assistance from the local authority. In these cases funds recovered from a personal injury settlement cannot be taken into consideration in the means test for services.
There are also cases where client’s receive a 100% award but the damages award is not sufficient as their needs may have changed since the litigation settled or the care package has become more expensive than anticipated. In these cases it may be appropriate to seek funding from statutory services.
Q. Why is my discharge from hospital being delayed?
A. When a loved one returns home from a long stay in hospital it can be a daunting process for them and their family to get to grips with their new routine, taking into account their care needs.
Often clients will need adaptations to be made to their home or specialist trained carers to provide care. However, issues often arise where the Local Authority and NHS are in dispute as to who should fund the adaptations or care package or where they have failed to communicate with each other to arrange services.
We can guide you through the process; helping you identify which method of funding would be most suitable and dealing with any unnecessary delays caused by the authorities.
Q. What are your fees?
A. Your first contact with us will be a free telephone conversation. During this conversation we will discuss your options, what you can do yourself, whether you really need further advice and possible costs.
If you need further advice we can offer an initial meeting to discuss your case in more detail. The initial meeting is normally between 1 and 1 ½ hours for which we charge £300 + VAT. Once you have had a chance to consider all available options, you can then decide to instruct us to do as little, or as much, as you want.
We will charge on the basis of an hourly rate which is £220 + VAT (as of 1 January 2018).
As we only do what you want us to, the cost of your matter is entirely in your control. We are happy to discuss your budget and what we can do to help you within that budget.
Q. What are disbursements?
A. Disbursements are any costs associated with your case which are not our fees. They can be costs for securing records or costs of independent experts. We only advise that you seek expert advice when it is absolutely necessary to your case. As such, your case may not require all the experts.
Q. Are your costs very high? Can I afford you?
A. We make sure that your costs stay under control.
If you decide to instruct us, we will normally ask for up to £2,000 on account. We place this in your ‘client account’ and we only use it when we raise an invoice for work we have done. Every month, we will send you an invoice detailing the work completed, the cost of that work, and the balance left in your client account. If appropriate, we will also suggest further payment into client account for future work.
We understand that costs are one of the biggest concerns when approaching a solicitor. We do as much as possible to help you achieve your desired outcome within your budget.
Q. Do you offer legal aid?
A. Unfortunately, we are unable to offer advice funded by legal aid. There is an online calculator to work out whether you would be eligible for legal aid. If you are seeking advice via legal aid, you must do so by contacting Civil Legal Advice on 0845 345 4345.