Derek J.Cole, M.A. (Law), LL.B. (Cantab), 9 Anglesea Terrace, St Leonards on Sea. 25th Feb, 2005
Commentary on the documents released by the Thames Valley SHA under the Freedom of Information Act concerning their negotiations with Buckinghamshire County Council over the post Coughlan criteria.
PART ONE
The Deception.
On more than one occasion the Thames Valley SHA asserted in writing that there was no dispute over the criteria with Buckinghamshire.
'There is no dispute between Bucks Social Services and TVSHA concerning the CHC eligibility criteria that have been applied across the Thames Valley since February 2003.' (TVSHA to Mr Cxxxx, my claimant, 21st Sept 2004)
'No dispute' (PCT to Mr Cxxxx, my claimant,. 1st Nov, 2004)
'You also appear to believe that Bucks County Council was in disagreement with the criteria used for Mr Cxxxx, my claimant,'s assessment. This is not the case' TVSHA to me by email, (17th Jan, 2005).
This is plainly untrue and I have always said so. On 8th Feb, 2003, I wrote to TVSHA 'We know that you have not as yet obtained the agreement of Social Services across the area and thus the criteria were not lawfully in force from 1st February, 2003.'
The documents confirm my view without doubt. There are 13 references to disputes in the documents provided.
On 23rd June, 2003 the Bucks Cabinet Member, Adult Social Care, wrote to the Chair of the TVSHA '…having taken the best legal advice ' (note - James Goudie QC, counsel for the HA in Coughlan) … we were told that the criteria and toolkit were …… unlawful, We are left with no alternative but to take this opinion with the utmost seriousness.'
'Counsels opinion ……protocols proposed by the SHA …….. unlawful' David Lidington M.P. to TVSHA 2nd July, 2003
Email, TVSHA to Bucks 9th Nov 2004'…..no longer formally in dispute……' (my underlining, but see below)
Email, Bucks to TVSHA 12 Nov 2004 'Yes……. no longer formally in dispute…..' (my underlining, but see below)
Email 3rd June, 2003 West Berks to TVSHA '…….Buckinghamshire is in dispute'
Reply from TVSHA to Bucks Cabinet Member, June 03, 'Issues with Buckinghamshire remain'.
Letter from TVSHA to David Lidington M.P. July 03, 'The issue between Bucks CC & TVHA concerning the lawfulness or otherwise of the current TVHA criteria …….'
'Mr Goudie …..his determination that that if Pamela Coughlan had been assessed against the TVHA criteria she would not have been eligible for continuing care'. Email TVSHA to Bucks July 03.
'Issues raised' - Objectives of meeting with James Goudie representing Bucks, Aug 2003
'The local authorities believe TVHA's Toolkit is too stringent.' Internal TVHA Attendance Note 3rd Oct, 2003.
'BCC councillors remain concerned' Minutes of meeting between TVHA and Bucks, 22nd July, 2004.
'Buckinghamshire ……a current dispute'. TVHA Continuing Care Review report Para 4.1. march 2004.
The non-agreement
In reply to TVSHA's denial of a dispute of 21st Sept, 2004, I replied to them via Mr Cxxxx, my claimant, on 25th Sept, quoting extensively from the TVHA Board report of June outlining the dispute, ending with their words At the time of writing, a clarification from BCC is awaited.
I commented '…As Lord Hunt said that the patient could stay in hospital until any dispute is settled (Hansard 17th March, 2003),that would seem to be the end of the matter until the legal position in Bucks is agreed. the Director of Social Services, told Councillors on 7th Aug, 2003 that Bucks might go to Judicial Review and that all monies connected with this issue are being kept in suspense accounts. This position obviously remains unchanged.'
On 26th October, 2004. clearly in response, Bucks and TVHA signed what purports to be an agreement to close the matter.
On 9th Nov, TVSHA in an internal email, copy to Bucks, says
'Thanks for this. I am surprised he (eg Derek Cole) has referenced the October BCC (Bucks) report as this identifies the agreement (another claimant comments - The Agreement does not appear on the Bucks CC website as far as I can determine.) that has now been signed by all parties and means BCC is no longer in dispute with TVSHA concerning the criteria and its associated implementation tools. I will copy check this statement with Bucks but if my understanding is correct we need to convey this to Derek Cole as this appears to be the main plank (no, it's not! See below) of the argument with Bucks Social Services.
Is it fair to say that in light of the side agreement between BCC, TVSHA and Bucks PCTs, the council is no longer formally in dispute with TVSHA concerning the criteria, toolkit and thresholds.'
(On 9th Jan 2005 he emailed me as above to say there had NEVER been a dispute).
On 12th Nov , 2004 Bucks replied Yes. It is fair to say that in light of the side agreement between BCC, TVSHA and Bucks PCTs, the council is no longer formally in dispute with TVSHA concerning the criteria, toolkit and thresholds.
That is not true.
The 'agreement' says
C…..The local authority remains concerned
D….The Health Authority, whilst not prepared at present to alter the indicative thresholds …
E….'Despite this, the Local Authority remains concerned … (Alas the rest of this sentence is ungrammatical and makes no sense, but the paragraph also refers to) …. The Local authority's concerns that if the tool kit is applied too restrictively it may ………. reduce the proportion of Buckinghamshire clients deemed eligible for NHS continuing care'.
Clearly, the purported agreement merely 'formally' clarifies the area of dispute between Bucks and TVSHA. We shall argue in Court if necessary that it is a colourable transaction designed to deceive Mr Cxxxx, junior, and unlawfully deprive Mr Cxxxx, senior, my claimant, of virtually all his assets.
The Forgery
The documents confirm that all assessments made before 1st Feb, 2003 were unlawful.
TVHA Meeting 15h March, 2004 '…..the former (unlawful) shared funding agreements…..'
This admission 'unlawful' shows that from the start TVSHA's approach was fatally flawed.On 27th January, I wrote to them
'The fundamental problem is the ministry circular of 28th June, 2001 HSC 2001/015/LAC (2001) 18 and its reference to its predecessor of 1995. It says.
(c) HSG(95)8 is lawful, although could be clearer.
This is palpably untrue. Lord Woolf referred to the circular as 'flawed' and said the denial of free care as a result went 'far beyond' what the Health Acts permitted
James Goodie Q.C. who was in Court throughout as Counsel for the N & E Devon Health Authority, in an opinion given to various Health and Social Service Departments in Essex in March 2000 says brutally that it was 'unlawful' .
After TVSHA disputed this in a letter to me, I replied on 8th Feb, 2003
I am most grateful to you for your very full reply of 3rd February, 2003. There is a fundamental conflict between our assertion that HSC (95) 8 was unlawful as a result of Coughlan and yours that it was lawful. Our assertion is based on the 'opinion' James Goudie Q.C., who was in Court throughout, gave to Essex in February and E.Sussex in March 2000. As an elector of E.Sussex, my then County Councillor gave me access to it.
On 1st February, 2003, the TVSHA introduced new criteria which stated in its introductory paragraph they were drawn up 'in partnership' with Social Service Departments in the area.
This was untrue.
I quote.
'TVHA board Meeting tomorrow ……… The paper clearly states that the criteria have been agreed across Berkshire and Oxfordshire and that only Buckinghamshire is in dispute. This is not so.' (Email from West Berkshire Council to other participants.)
'The report (eg the paper above) then goes on to state that no other local authorities in the TVSHA area expressed difficulties with the criteria; this statement has caused such concern to some of the Berkshire Authorities that they immediately convened a meeting to which we were invited to confirm that they also had serious reservations about the criteria……I'm surprised that such a one-sided report should have been presented to your board…'(Bucks Cabinet Member for Adult Social Care to Chair of TVSHA 23rd June, 2003)
'…. To meet with Mr Goodie to go through the legal advice he has offered BCC [and the Berkshire Unitaries, via Slough]' (email TVSHA to Bucks July 2003).
'3. The local authorities believe TVHA' Tool Kit is too stringent. 8. …..the local authorities will not agree the Eligibility criteria until …..' (TVSHA Attendance Note 3rd Oct, 2003.)
'7 To make arrangements to check to check the legality of any revised criteria…. (Letter Slough to TVSHA 23rd Oct. 2003.)
Also see details of the dispute with Bucks (above).
The legal definition of a forgery is a document which purports to be what it is not. The document issued by TVSHA purported to be an agreement between them and Social Services throughout the area which would, inter alia, require the old, the sick and the disabled to pay out virtually all their assets. No such agreement existed. The TVSHA document containing their criteria of 1st Feb, 2003 is a criminal forgery.
The Dubious First of June.
My Bucks claimant was assessed in April, 2004 but we learnt that new rules were adopted on 1st June, 2004. We obviously asserted that his assessment (and presumably all others) was unlawful.
However, TVSHA denied this in a letter to my claimant's son on 21s Sept, 2004, and emailed me on 17th Jan, 2005.
'You seem to be under the impression that this authority has changed the eligibility criteria for continuing health care since these were first introduced across the Thames Valley in February 2003. This is not the case, they remain exactly as they were, and are identical to those used in determining whether Mr Robert Cxxxx was eligible for continuing health care in April 2004. My letter to Wayne Cxxxxx of 21st September 2004 refers.'
However, no valid criteria were issued on 1st Feb, 2003 - see above.
Note of meeting between TVSHA and Bucks, 22nd July, 2004 says.'Since 1st June, 2004, TVSHA has formally adopted and applied the revised care domains …….. the criteria and thresholds remain unchanged …… BCC councilors remain concerned'.
This is untrue. The Care Domains are part of the Toolkit (March 2004 Report 3.7) and the Toolkit is part of the Criteria (see document issued for 1st Feb, 2003)
Also the TVSHA July Board minutes say
'The meeting agreed with the …… modifications
to the assessment toolkit used across the TVSHA area. These changes
have now been agreed by all parties and became operational on
1st June. No changes were proposed or have been made to the TVSHA
criteria.'
This itself is an oxymoron as the Toolkit was published as part of the criteria! (see above). Was this just a misreading? In the light of the other evidence of misfeasance above, it is fair to deduce that the words 'No changes were proposed or have been made to the TVSHA criteria.' were in the light of the changes to the toolkit, deliberately intended to deceive.
Coughlan says the exact opposite!
The TVSHA Background Briefing of 31/10/03 says '…. The latter advice, from Bevan Ashfords (the country's leading continuing care lawyers and the lawyers involved in the Coughlan case) have confirmed the TVHA proposals are compliant and lawful.' This duplicates comments issued with the (forged) criteria of 1st Feb, 2003. - 'The process and its associated material have been subject to review by Bevan Ashfords, who are leading lawyers in this field'.
They were indeed the losing lawyers in the Coughlan case.
On 14th Feb, 2003 I was unkind enough to point out that referring to the N & E Devon H.A. advised by Bevan Ashford, Lord Woolf in 'Coughlan' quoted with approval Mr Justice Hidden's view.
'as the judge points out, at one time the Health Authority was totally confused as to what the proper division of responsibility between the Health Authority and the local authorities was. Dr Gillian Morgan, the Chief Executive of the Health Authority, in her first affidavit accepts that this was the position. This could be the result of the shortcomings of the circulars . In paragraph 39 of her first affidavit she apologises for the confusion which she and other officers of the authority were under and appear to have caused by their statements..'
Bevan Ashford were so uncertain of their knowledge of the law that in Steve Squires case in Devon they incited two consultants to delete evidence that the patient needed intensive nursing day and night from their evidence to the panel. (report from the Nursing and Medical Assessors of the old Devon H.A. Feb, 2002).
Two consultants have already been rebuked by the G.M.C. for falsifying the evidence at Bevan Ashford's request but the Law Society, bizarrely, said they could not investigate if solicitors advised their clients to falsify evidence.
On 14th Feb, 2003, I also pointed out 'In the study of logic, argument 'from authority' is a recognized fallacy and is seen as an indication of a weak position. In this case, it is pathetically easy destroy that authority.'
I did not then know how easy. Bevan Ashford wrote to N E London SHA on 28th Oct, 2002 'The dividing line between fully funded NHS care and other forms of care where responsibility is shared has proved difficult to define and even the decision…..in…..Coughlan…..has not resulted in a great deal more clarity. Indeed the Court of Appeal accepted that this is not an area where the decision-making is easy. Accordingly in my view the guidance in the Coughlan decision - that the NHS should meet the full costs of care packages where the level of nursing care is more than incidental or ancillary to the provision of accommodation is likely to remain good law'
While trying to force the old, the sick and the disabled to pay on the grounds that the law was certain, internal TVSHA documents tell a very different story.
The Thames Valley SHA internal briefing of August 2003 says '….there is no other case law derived benchmark against which to judge the lawfulness or otherwise of the effect of the implementation of the criteria.'
In a letter to the Cabinet Member for Adult Services, Buckinghamshire County Council, the Chairwoman of TVSHA wrote in late June 2003. 'the board accepts that legal interpretation will frequently differ. If one pays the same question to a 100 lawyers there is a strong possibility one will receive 100 different answers this is even more likely in such a complex area where national guidance lacks specificity'.
There is compelling evidence that TVSHA and thereby presumably Bevan Ashford do not understand Coughlan at all.
West Berkshire in an email to all others on 3rd June, 2003 says 'that the Coughlan Judgement clearly stated that a test of reasonableness needed to apply …'
The TVHA Board Paper of June 2003 refers to 'The test of reasonableness of the criteria.'
The TVSHA reply to the Bucks Cabinet member in June 03 refers to '…the test of reasonableness of the criteria…'
This is totally untrue. Although the NHS can refuse treatment where it would be unreasonable for it to do so, it would in that case be equally unreasonable for Social Services to do so either. Coughlan is concerned with the lawfulness of transfer of cases from the NHS to Social services under Section 21. Obviously, reasonableness has no part to play. It is a matter of law.
Fortunately, Lord Woolf in Coughlan made this absolutely clear, totally contrary to TVSHA's and presumably Bevan Ashford's understanding. The Coughlan judgement is divided into two parts. The second part deals with the 'Promise for Life' and has nothing whatever to do with Section 21. The full words 'reasonableness/unreasonableness' only occur twice in the Judgement, both in the seond half, where it was held to be Wednesbury unreasonable to refuse to honour the promise made to the occupants. That has nothing to do with Section 21.
In the first half concerning Section 21, after quoting the authorities about reasonable services, Lord Woolf disposes of it as I explain above.
.I quote - 'As Lord Diplock said in Secretary of State for Education and Science v. Tameside MBC :"The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred." to limit the court's power of supervision to this is to exclude from consideration another aspect of the decision which is equally the concern of the law. . In the ordinary case there is no space for intervention on grounds of abuse of power once a rational decision directed to a proper purpose has been reached by lawful process. The present class of case is visibly different'. (My underlining)
The whole basis for the TVSHA work on drawing up criteria is thus fatally flawed.
The TVSHA asked two management consultants to join an officer in reporting on the efficiency of their Continuing Care Panels. At least they do not use the fraudulent and possibly unlawful description 'Independent' for these panels. The TVSHA Continuing Care Review Report of March 2004 gives among the objectives of this Review Team.
Section 2.2. 1, 'To gather information relating to the S21 powers and their use within the continuing care criteria'.
Bizarrely, they are asking Management Consultants to interpret a law which is admitted to be uncertain and complex.
Section 4.1. 'Is there evidence that Social Services are being required to provide services beyond their S21 powers? There was some evidence of this occurring in some areas.'
Section 4.2 ? The reviewers found no evidence of individuals being wrongly denied NHS continuing care.
One surely contradicts the other, but as they are not lawyers, how do they form a judgement. What test do they apply? They explain -
Section 4.1. last paragraph, 'Any provision of services beyond the powers of section 21 ……. Was generally seen as more of an issue regarding process and a desire to be effective rather than a disagreement over policy '……….
Hogwash! It is a matter of law, not 'policy', not 'process' not 'a desire to be effective'. The test is that Social Services cannot take cases which are more than 'ancillary or incidental to the accommodation', defined as saying that those whose 'needs are primarily health needs' are 100% the responsibility of the NHS. There is no evidence the Review Team had even heard of these words. In any case interpreting them is outside their professional expertise and they are not to blame for this nonsense.
These panels decide if the patient's entire assets, often several hundred pounds, are to be put in jeopardy. Grotesque!
One further point they misunderstood. They say 'Wokingham also have two cases where clients are eligible but are resident in a Nursing Home'. This is irrelevant. I established in my Essex case for Derek Curran (Money Mail Passim) that he could receive his free care in a Residential Home. I have sent full details to Wokingham Councillors.
Hurdles for Pam Coughlan to clear.
On reading the proposed TVSHA criteria I wrote on 27th Jan, 2003.
QUOTE
'The Assessment Tool.
This is totally and bizarrely misconceived. The whole approach is wrong (see below).Also it uses throughout the definition 'specialist' which Lord Woolf specifically ruled in terms has no meaning in law or medicine.
In the Court of Appeal, Lord Woolf said 'Coughlan was grievously injured in a road traffic accident in 1971. She is tetraplegic; doubly incontinent, requiring regular catheterisation; partially paralysed in the respiratory tract, with consequent difficulty in breathing; and subject not only to the attendant problems of immobility but to recurrent headaches caused by an associated neurological condition'.
He further commented that to deny somebody like her free care went 'far beyond' what the law permitted. James Goudie Q.C. subsequently commented that she 'was not a marginal case'. Yet under the TVHA scheme she would score something like
Breathing 20%; Mobility 50%, Drugs 40%, Food & Drink 40%, Continence 60%. The TVHA scheme requires 60% in each of five categories. The scheme as applied to Miss Coughlan is totally at variance with the Court's view.'
QUOTE ENDS
James Goudie Q.C. later gave Bucks the same advice.
This error seems to be widespread as the following email shows.
----- Original Message -----
From Pam Coughlan To Derek & Mary Cole
Friday, February 18, 2005 2,29 PM
Derek, no one has been in touch from TVHA- I told Colin Houghton that a SWPHA nurse remained silent when I asked if I would fit criterion 1 . He suggested I give this to Select Committee. It puzzles me how this is not contempt of court . best wishes Pam
(Colin Houghton is the Ombudsman's officer who researched the Dec 2004 report)
On 3rd Feb, 2003, TVSHA wrote to me to say they could not compare cases in other areas.
This was untrue as James Goudie forced them to consider this point.
'……this argument is that if the needs of Pam Coughlan were considered against the Tool kit, she would not qualify for CHC.' (TVSHA Attendance Note 3rd Oct, 2003).
See Email TVSHA to Bucks July 03. (above)
'Subject to Coughlan being eligible for NHS continuing care….' (TVSHA Objectives for meeting Aug 03.)
Recommendation. '2. apply the Coughlan Test once the material is available (eg Apply Pam Coughlan's condition to the Toolkit as I did on 27th Jan, 2003) Decision. 6. To put on hold ……. the application of the Coughlan Test' (TVHA Continuing Care Meeting 15th March, 2004.
I wonder why? However, as Lord Woolf said that refusal of care in cases like hers went 'far beyond' what the law permitted and James Goudie Q.C. gave an opinion to Essex in Feb 2000 that Pam was not a marginal case, the comparison would in now way prove that the criteria are lawful although it could, and in fact does, prove they are unlawful.
Intelligent assessment shows that Pam fits neatly into the Middle Category for nursing care. This the Court of Appeal says qualifies her for free care.
Conclusion so far.
At best the TVSHA are 'ex turpe causa' and 'estopped' from denying my claimant, Mr C senior, free care. There may also be matters for the Police.
PART TWO.
Panel Beating.
My evidence already circulated to the Commons Health Select Committee demonstrates what a monumental farce Review Panels are. I quote the first paragraphs.
QUOTE
'Review Panel Fiasco.
Review Panels are conduced in a way so offensive to Natural Justice that I now refuse to appear. I print below the Report in 'Reaching Out' Magazine, which the Ombudsman's officer has now read. The case referred to, Goldsmith v Wandsworth LBC (Court of Appeal, 27 August 2004) was in fact a Social Services panel considering moving a patient rather than funding, but it exactly describes what we have found to be typical Review Panel faults.
From Reaching Out - Dec 2004
'Pre-determined'……. 'a manifestly flawed process', … 'without a full and proper consideration'. These were the damning criticisms from the Court of Appeal on 27th Aug of a typical Review Panel hearing. This gives further authority to innumerable complaints. The judge also found that the daughter was entitled to attend the panel meeting, for she had a manifest contribution to make regarding the client's care needs. This right has been denied to our members.'
QUOTE ENDS
I am not clear from the report if families can attend TVSHA panels. If not, under the Wandsworth ruling they are unlawful.
The Report of March 2004 shows a system in total chaos. I quote
'…..some of the more established and newer panel members had not received any formal training and were attempting to organize their own with other panels, It appears to be normal practice for new members to learn from attending the panels with no expectation of formal training…'(3.2 para2)
'…………There were gaps in particular around the application of the toolkit' (3.2 para 3)
'The members of one panel were not all using the same toolkit' (3.2 para 6)'
'Some of the panels' members hadn't grasped that the criteria should be used to assess the individual's health care needs rather than the disability or illness on is own'. (3.2. para 7)
'At the East and West of Berkshire panels the written information is not shared ……………difficult .. to be informed…..' (3.3 para 3)
'Buckinghamshire …… assessments provided by ward staff and untrained assessors …… generally of a poor quality'. (3.3 para 7)
'A high percentage ….. did not contain information on the outcome of the panel's decision' (3.11 para 2) See the Ombudsman's sharp criticism about this.
Improper Finance Considerations.
There is clear evidence of unlawful financial considerations intruding on what is a matter of law.
On occasions , panels are attended by '…..a financial lead ……. A finance manager …….a business strategist ….' (3.3 para 4)
Although they say 'Although financial constraints are kept in mind these do not affect the outcome of the decision', it is flagrantly unlawful to consider the budget in a quasi-judicial decision. If free care is required by law, the NHS can, and does say, 'we can only afford this place - that one is too costly', but accountants can play no part in the basic decision.
Elected Councillors excluded?
Although this is a major obligation for Councils, elected councilors are universally treated as children not yet entitled to their sweeties.
'9 social service departments ….. none of these have been taken this item to cabinet for approval ….. agreed by senior officers and not taken to members …. That will happen after the review period' (TVSHA background briefing 31/01/03).
8th Aug 2003 An emergency report was made to committee in Bucks after I had briefed councilors.
22nd July, 2004 'BCC councillors remain concerned' TVSHA Summary of discussion 22/7/04 AFTER I briefed Bucks councillors again.
My defence to the Court of Chancery (see appendix) in another case reads.
'If Elected Councillors were excluded from the process, or were not fully briefed, we will argue that this was Wednesbury Unreasonable and that the agreement was not lawfully given.'
Be you never so high the law is above you
Lord Denning
It is a major quasi-judicial decision at Common Law and under Article 6 to require a citizen to put in jeopardy virtually all a citizen's assets. The Continuing Care Panels cannot carry out this function; indeed they are prohibited from consulting the Coughlan decision itself.
However the agreement made by the TVSHA and Social Services is not binding on the potential self-funder. There is no 'jus tertium quid' in English Law. Before any citizens can be required to pay, they are entitled to a ruling from the Courts.
Once a potential self-funder is transferred to the Council, the law requires Social Services to enter into a contract with a care home and pay the fees. They must then make a claim in quasi-contract based on statutory authority against the patient/patient's representative. They cannot just say to the Care Home - send the bill to the patient. (R vs.Lancashire County Council ex partie RADAR and Gulping 1 CYCLE 19 Court of Appeal).
At this point, the patient/family can exercise the legal right to seek a Court ruling by refusing to pay. The Council must then go to court. When with Doreen Curran (Daily Mail passim) I visited Mr Julian Rickett, the Essex District Auditor, he commented that Social Services and the self-funder were on the same side. When I replied that in such cases the Council's duty would be to sue BOTH the patient and the PCT, he replied hastily - 'I didn't say that'. But he didn't say I was wrong.
I am now with Pam Coughlan assisting the informal 'Coughlan Consortium', a rapidly growing group of families across the country who are refusing to pay. As the lead member, Mr Ian Perkin, has just won an initial point on another issue in Tooting as a litigant in Person before the Court of Appeal, we are saying that if sued we (including my Bucks claimant) will fight cases on a litigant-in-person basis to the Court of Appeal or in Strasburg. 30% of all cases before the Court of appeal now involve litigants in person. We may consult the McLibel two.
Mr Perkin is standing as an Independent Candidate in Tooting on this issue.
As a result, council's who accept cases after the criteria have produced an unlawful result may face hideous legal problems. If Cabinet has not yet approved the TVSHA criteria, I advise them not to do so.
So far no Council has actually brought a case against one of my claimants, but I have taken over one case in Cumbria which had already started before I was consulted. I print the initial defence document below. It differs from my Bucks claimant in that here Mr Cxxxx owns no property and was transferred to Social Services (we shall argue in court this was unlawful) after Lord Hunt's promises to Parliament.
A section 2, Clause 5 notice requiring Social Services to take the case cannot be issued while the patient/family dispute the transfer to Social Services.
CONCLUSION.
The Continuing Care Review Panels ONLY decide under the private agreement (where it exists) between the TVSHA and the Councils if the PCT or Social Services take responsibility. They impose no legal obligation whatever on potential self-funders, there being no 'jus tertium quid' in English Law.
Social Services, but not the PCT, can seek to make a financial assessment on the patient. If the patient/family assert that the patient has 'needs …. which are primarily health needs' they can (and now do) refuse and ask for it to be taken to Court. The Court will apply 'Coughlan' , not the criteria.
Derek J.Cole, 25th Feb, 2005