NHS Continuing Care: Why the new deadlines for reclaiming care fees are illegal (Part 5)

NHS Continuing Care: Why the new deadlines for reclaiming care fees are illegal (Part 5)


Continued from Part 4

Those health and social care assessors and decision makers who wrongly force elderly people to pay for care could be in breach of the Theft Act 1968. It also follows that any health and social care employee who casually advises an elderly person (or their family) that they ‘won’t get Continuing Care’ – and in so doing prevents that person pursuing and receiving funding – could also be in breach of the law.

The Theft Act defines theft as follows:

“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it… Property includes money and all other property, real or personal, including things in action and other intangible property.”

When Continuing Care funding is wrongly denied and an elderly person is wrongly told to sell their home and use up their savings to pay for care – and when someone at the local authority slaps a legal charge on their house – the State is effectively obtaining property by deception. It is theft.

In its section on fraud and blackmail, the Theft Act also states that:

“A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years.”

Wrongly forcing someone to sell their home and give the proceeds to the State in exchange for healthcare is surely fraud.

Many families also report that the formal notes taken during a Continuing Care assessment are often wrong, and that what is discussed verbally in an assessment and what actually gets written down are two different things. Families have also reported that written notes have sometimes been altered after an assessment meeting and behind the family’s back. This would appear to be either gross incompetence on the part of assessors, or a deliberate attempt to render the elderly person ineligible for funding and force them to sell their home to pay for care. This is particularly interesting given the section on false accounting in the Theft Act:

“Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces, conceals or falsifies any account or any record or document made or require for any accounting purposes… he shall, on conviction or indictment, be liable to imprisonment for a term not exceeding seven years.”

Breach of the Equality Act 2010 and disability legislation
Setting deadlines to end financial redress for the oldest generation in our population seems a strange way to promote equality. The coalition government’s changes to the Equality Act 2010 enabling older people to sue the NHS if they face age discrimination by NHS staff may offer some hope for those who do experience it. Many report an ‘unwillingness’ by the State to provide care if the person is disabled or incapacitated and that care likely to be expensive.

It would be interesting to understand how exactly a lack of Continuing Healthcare funding is supported in the Equality Act and how it does not constitute blatant discrimination arising from disability.

In addition, the practical ability of a frail elderly person to hold the State to account is limited – and in introducing new deadlines for retrospective claims, the State is now taking away the very complaint mechanism through which an elderly person could previously seek redress.

Human Rights lawyers will, I’m sure, also take an interest here. Taking away a person entire assets without due process of law is surely also a breach of the Human Rights Act.

The Continuing Healthcare reclaim deadlines are flawed
In cases of maladministration and improper intent, those who control the duties and promises of our National Health Service are stealing further from our elderly because, in the final analysis, they deem cost to be of higher importance that the legal rights of citizens.

The evidence is clear: the Coughlan case, the Grogan case, my own parents, and many other cases where families have fought – and won. But these cases are small in number compared to the ones that have not yet been brought.

The government was been quick to announce a Parliamentary Enquiry into banking fraud. What makes fraudulent practice in the healthcare system any different? The answer seems clear: The age of the people being defrauded.

Few politicians in any party seem to have had the backbone to stand up for elderly people in any meaningful way. The new Continuing Healthcare deadlines and the lack of any substantial political objections further expose this complacency.

Law firms now have an opportunity to challenge the very deadlines that many are helping their clients meet. But time is running out. That is, I suspect, exactly what the government is counting on.

Please spread the word and make others aware of the Continuing Healthcare deadlines – before it’s too late.

Read the whole article

Read more about the deadlines for retrospective care fees reclaims – and how to get help.

Read more about NHS Continuing Care funding.


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