The Legal Limits of Care Which a Loacal Authority may Provide in relation to Continuing Healthcare.

John Petters made this Freedom of Information request to Essex County Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear Essex County Council,
In 2014, my mother had the first assessment for NHS Continuing Healthcare (CHC) by Essex County Council (ECC) and the NHS.

ECC provided a Social Worker, Lisa Rollison who admitted to having no medical experience, yet she formed half of a Multi-disciplinary team (MDT) which decided my mother was not eligible for CHC, despite independent medical evidence to the contrary.

My mother, was 81, and suffering from dementia, Alzheimer's disease, recurrent urinary tract infections, frequent falls which resulted in fractured limbs, was incontinent, had arthritis, hypertension, odeama and was epileptic.

In 2016 my mother had an assessment in March. This time ECC provided Calum Whiter and Rebecca Mills as social workers who comprised half of a new MDT.

The MDT perversely again found my 83 year old mother, who by this time in addition to the above conditions was now unable to communicate any of her needs, was doubly incontinent and had to be toileted every two hours and monitored to ensure there was no skin damage was again ineligible, despite the MDT unanimously agreeing that only "the majority" of her needs could be legally provided by ECC. Therefore a minority of her needs cannot be met lawfully by the ECC and ECC is breaking the law and spending council tax payers money unlawfully on her care home fees when these are legally the responsibility of the NHS.

In June 2016, my mother lost consciousness for about 5 minutes and was taken to hospital. She had another loss of consciousness whilst in hospital and she was diagnosed with first degree heat block.

A further CHC assessment was carried out by two new nurses, Lynn Freeman and Nicola Wood from Castle Point and Rochford CCG. ECC provided Calum Whiter and a senior Social Worker, Dr Felix Ugwamadu.

Despite scoring on the Decision Support Tool which indicated a primary health need, the MDT perversely again ruled ineligibility, but made no mention of the minority of needs which ECC could not legally provide. This makes no sense as my mother's condition was considerably worse than the assessment in March 2016.

The MDT claim that my mother's need is for social care, yet they ignored The National Framework for Continuing Healthcare which states @ Page 50, paragraph 1.1: “Local authorities cannot lawfully commission services that are clearly the responsibility of the NHS…”

And Page 50, paragraph 1.2: “…there is a legal upper limit to nursing and healthcare that can be provided by local authorities.”

And Page 50, paragraph 1.2: “The powers and duties of local authorities are a matter of Statute and case law, including the Coughlan Judgment.”

The Coughlan case is an important legally binding case which all must follow. It reinforces the principles outlined here – and it’s still just as valid today as it was in 1999 when Pamela Coughlan won her case at the Court of Appeal.

So what is a social care need (local authority) and what’s a healthcare need (NHS)? The difference between these needs is not defined in law, but the National Framework guidelines make it fairly clear:

Healthcare needs:
Page 50, paragraph 2.1: “…in general terms…such a need is one related to the treatment, control or prevention of a disease, illness, injury or disability, and the care or aftercare of a person with these needs (whether or not the tasks involved have to be carried out by a health professional).”

My mother needs 24 hour care because she has dementia. She is at risk because she cannot make any decisions. She has no sense of where she is, she cannot communicate any of her needs. The staff at the home cannot predict when she will fall and break bones or when she with get a urine infection. They could not foresee her collapse which led to her hospitalisation. Whilst being assessed she urinated and neither the experienced nurses nor care staff were aware of this until she stood up. She is at high risk of falls and is nationally at risk because she does not know she has to drink. All of her needs are as a result of her combination of illnesses, yet the MDT mislead themselves by thinking they are only social needs.

Below is what the Framework views as actual social needs
Social care needs:
Page 50, paragraphs 2.2 and 2.3: “In general terms…a social care need is one that is focused on providing assistance with activities of daily living, maintaining independence, social interaction, enabling the individual to play a fuller part in society, protecting them in vulnerable situations, helping them to manage complex relationships and (in some circumstances) accessing a care home or other supported accommodation. Social care needs are directly related to the type of welfare services that LAs have a duty or power to provide. These include, but are not limited to: social work services; advice; support; practical assistance in the home; assistance with equipment and home adaptations; visiting and sitting services; provision of meals; facilities for occupational, social, cultural and recreational activities outside the home; assistance to take advantage of educational facilities; and assistance in finding accommodation…”

It can clearly be seen that my mother's needs do not comply with the Framework's definition of social care needs, yet the MDT ignored this.

If a person's needs are primarily an NHS responsibility, they are said to have a ‘Primary Health Need’. It’s a concept rather than a legal term but, as the National Framework guidelines state very clearly:

Page 51, paragraph 3.1: ‘Primary health need’ is a concept developed by the Secretary of State to assist in deciding when the NHS is responsible for meeting an individual’s assessed health and social care needs as part of his overall duties under the NHS Act 2006 to provide ‘services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness’ [NHS Act 2006, section 3(1) (e)].”

Page 51, paragraph 3.5: “…an individual has a primary health need if, having taken account of all their needs… it can be said that the main aspects or majority part of the care they require is focused on addressing and/or preventing health needs.”

It is manifestly clear that my mother has a primary health need, yet ECC does not recognise what social care needs are in comparison to primary health needs.

The Care Act 2014 obliges Social Workers to be properly trained in the limits of needs which can legally be supplied by the local authority.

1. Please state what are the services expressed in paragraph 1.1: “Local authorities cannot lawfully commission services that are clearly the responsibility of the NHS…” which Essex County Council cannot lawfully provide.

2. Please state what the Local authority legal limit for care referred to above comprises.

3. Please provide any document which defines this limit other than the Framework already mentioned.

4. Please state exactly what needs are meant by "the majority of needs" mentioned above by the MDT and what the "minority" of needs were that MDT said the Council cannot provide lawfully.

Yours faithfully,

John Petters

Your Right To Know, Essex County Council

Good afternoon John Petters

Thank you for your email; please can you kindly clarify if you would like the email dealt with as an Freedom of Information (FOI) request or would you prefer that this is treated as a complaint.

Please be aware that if processed under FOI we would only be able to provide recorded information if available,

Yours sincerely

Sophie Pennell

Your Right To Know
Information Services
Essex County Council
T: 033301 38989
E: [email address]
W: www.essex.gov.uk

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Dear Sophie Pennell
Thank you for our prompt response. It is a FOI request. The Council has evaded responding properly to my statutory complaints as it is obliged to do.
Social workers have to be aware of the legal limits of the care that can be provided by a local authority. So to be clear, I'm looking for documents which instruct staff or define what these limits are.

Yours faithfully,

John Petters

Your Right To Know, Essex County Council

Dear John Petters

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Paula Girling
Your Right to Know
Information Services
Essex County Council
Telephone: 033301 38989
E-mail: [email address]

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Your Right To Know, Essex County Council

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Your Right to Know

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