Click here to return to the front page of www.NHSCare.info - your right to 100% NHS funded care under the law and "Coughlan"
Note by Robin: Some of you may have seen Steve's photograph in newspapers
such as the Sunday Telegraph of December 8th 2002 - from which this picture is taken,
after he won his long battle with his local health authority.
As Derek Cole said shortly after the Ombudsman ruling : "Steve Squires victory
today is a tremendous tour de force." After that Steve appeared in several TV broadcasts,
triggered by the Ombudsman's Report. The information below is that distributed by post to the
many people, without internet access, who contacted Steve. We are all grateful to
Steve for his continued support to "the cause" and hope to provide more information
on this page in the future.
Steve suggests you enclose a copy of Derek's
document with complaints sent to PCTs.
Having difficulty getting medical records from NHS/SS ? See "get a Court Order for £60 ?" below.
from Steve: "In 1997 my late father was diagnosed with Alzheimer's Disease (which is an incurable degenerative disease, NOT a mental health problem!). He was placed in a nursing home by Social Services and told to pay for all his care. As his eldest son, with enduring power of attorney, I questioned this as I believed that under the Health Acts the NHS were responsible for ALL his care costs. After nearly six years of deliberate delay and endless prevarication, procrastination and sheer bloody-minded intransigance by Health Authorities and Social Services departments, the Ombudsman ruled in my favour and I have now received a full refund of all my father's care costs, together with legal costs - and compounded interest.
The Ombudsman upheld my complaint that 'the eligibility criteria were more restrictive than national guidance allowed.
It thus follows that any patient suffering from Alzheimer's or a similar disease, or requiring similar care, who has been refused 100% NHS funding, must also have been subjected to 'unlawfully restrictive eligibility criteria' in order to make that decision. All such patients must thus automatically qualify for fully funded NHS care. In fact, HSC2001/17 (page 31) confirms the law under 'Coughlan' that anybody with a health need or a disability must have ALL their care paid for by the NHS. (See www.nhscare.info )"
The RNCC (Registered Nursing Care Contribution) scheme is sheer humbug! In fact the statement on page 31 of HSC2001/017 that "Where an individual's primary need is health care then the whole package of care must be paid for by the NHS" totally contradicts and negates the nursing care banding scheme described at the top of that same page! The argument is in fact elementary: A patient requiring any nursing care - whether provided by a 'registered nurse' or anyone else - must clearly have a 'health need' and is therefore entitled to receive 100% NHS funding of ALL their care - including all so-called 'social care', which has no specific meaning in law.
The Appeal court ruled in 'Coughlan', that social services can only provide nursing services which are 'incidental and ancillary to the need for accommodation' and that everything else is the responsibility of the NHS. It is the condition of the patient which entitles them to NHS funding, not any treatment which may be provided. In fact, there are many cases where no 'treatment' is possible!
Consequently, elegibility criteria published by Health Authorities are totally unlawful which say that it is the "nature or complexity or intensity or unpredictability of their needs which requires the supervision of an NHS member of the multi-disciplinary team" which renders the patient for eligible for NHS Health care. They go on to say that an individual will be eligible "when he/she has a rapidly deteriorating or unstable condition, requiring the regular supervision . . . . " or is "in the final stages of a terminal illness" or "requires the routine use of specialist health care equipment under the supervision . . ."
All this is absolute nonsense and has no basis in law. Nothing like this was mentioned by the appeal court because nothing like it applies to Pam Coughlan! In fact the judgement handed down specifically confirms that ALL Miss Coughlan's care must be paid for by the NHS. (Which includes all so-called 'social care')
This has come about because in repeatedly re-drafting their criteria HA's are endeavouring to maintain the 'status quo' by applying guidelines provided by HSC2001/015, (and earlier) which have been shown by Derek Cole MA.(Law), LLB. (Jesus College, Cambridge) to be completely unlawful. See his analysis 'Criunla' on: www.nhscare.info Current criteria are clearly unlawful both because they are based on guidelines which are themselves unlawful; and most HA's confirm that their criteria are indeed based on such guidelines, but also because they were 'superceeded /replaced' by HSC2001/17, on 25/09/2001. So Health Authorities can hardly claim that they were unaware of the existance of these revised guidelines. It thus follows that it is unlawful to assess people for NHS care eligibility against current criteria, and Health Authorities surely have a legal obligation to immediately withdraw all criteria which are not 'Coughlan Compliant'. It seems to me that they would be hard pushed to convince any court that they are acting lawfully in making funding decisions which are based on obsolete and hence unlawful DoH guidelines! In fact, I won my own case on my argument that "the criteria were more restrictive than national guidelines permitted" - and they were the now long - obsolete guidelines and criteria!
The Law says that if you have a 'Health Need or a 'Disability' then ALL care must be free
After a 6-year battle, the Ombudsman decided that all my late father's nursing fees should be refunded by the NHS. Now people throughout the UK are 'up in arms' over this scandalous situation which allows Health Authorities to offload care costs on to patients themselves and Social Services. This has resulted in my receiving a large number of requests for information, which I am pleased to provide. First it is essential to understand the basis of my argument, as follows:
The Court of Appeal ruled in the 'Coughlan' case that: "The provisions of the Health Act and the Care Act do not, (therefore), make it necessarily unlawful for the Health Authority to decide to transfer responsibility for the general nursing care of Miss Coughlan to the local authority's social services. Whether it was unlawful depends, generally, on whether the nursing services are merely (i) incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide. Miss Coughlan needed services of a wholly different category." Judgement: Case No. QBCOF 99/0110/CMS4. 16th. July 1999
It was thus ruled that social services are not permitted to provide the sort of care services which Miss Coughlan or anybody else needs, where these services are of a 'wholly different category' to those care services which social services are permitted to supply. The nursing services required by Miss Coughlan, and others with comparable needs, can therefore be provided and hence funded, only by the NHS.
This fact is recognised in the Dept. of Health directive HSC 2001/17: LAC (2001)26. issued on 25th. September 2001. (page 31) "Where an individual's primary need is health care then the whole package of care must be paid for by the NHS."
Anybody with a 'health need' or 'disability' is thus entitled by law to have all their care costs met by the NHS. (Which includes all so-called 'social care' ) It therefore follows that the HA (or social services) do not have the legal power to apply 'eligibility criteria' or carry out 'means testing'. Both are totally unlawful because Nobody can deny anyone those rights already accorded them by the law of the land. .
Furthermore, it is not even necessary for the primary reason for being in a nursing home to be a health need. ( as stated in HSC2001/17, page 31) Patients need only have a 'health need' or a 'disability' to qualify for NHS-funding of all their care needs. Consequently it is totally unlawful to 'Means Test' and charge patients for so-called 'social care'. All such patients - and their families - have a legal right to refuse to pay care fees* and to reject the validity of 'eligibility criteria or to co-operate with any form of 'means testing' by Social Services Departments. It should be noted that the NHS acts provide for free care at the point of delivery: This can be in a hospital, hospice, nursing or residential home, the patients own home or that of a relative or carer - or a tent in a field for that matter!
Patients or their relatives and those holding enduring power of attorney, or the executors where a patient has died, can reclaim from the NHS all the care fees paid, plus the current market value of any property sold in order to meet care costs. They can do this themselves but legal costs may be recoverable from the NHS if they decide to employ solicitors. But make sure they are competent to handle such cases ! Note that the Ombudsman will not intervene if you have commenced legal action. Asking a solicitor to advise you or write letters is not 'legal action' (litigation)
In the first instance your claim should be addressed to the 'Complaints Officer' of the Health Authority or Primary Care Trust, with copies to their Chief Executives and the relevant Social Services Department. Do not be side-tracked into a 'Review Panel' but demand an 'External Enquiry'.
It is suggested that you include a copy of Derek Cole's document with complaints sent to PCTs. The text of Derek's document, including his letters of 23rd and 11th March 2003, can be found on CRIUNLA
If this is refused complain to the Ombudsman. Alternatively or simultaneously, you can complain direct to the Ombudsman. The forms to complain to the Ombudsman can be downloaded from www.ombudsman.org.uk/hse/england/form.html Continue with any existing complaint to the NHS etc., and ask the Ombudsman to order a "Local Independent Review under stage 2 of the complaints procedure 'adapted' as required by the Court of Appeal in 'R(cowl) v Plymouth City Council. 14th. Dec. 2001" (in these words)
Further information and forms for complaining to the Health Authority etc., can be found on www.thisismoney.com/20030319/ht60646_s.html
To obtain full reimbursement claimants need to assemble documentary evidence of fees paid - i.e.., nursing home invoices, estate agents valuations, etc. and to submit a verifiable invoice. An additional sum for 'disbursements' - legal fees, 'office costs', travelling expenses, etc., - plus interest on fees paid and compensation for any other losses e.g. loan interest, stress and trauma, - may also be recoverable. .
* It may not be prudent to withhold payments to a nursing home (at least in the initial stage of a complaint to the PCT) as this may leave the home with no alternative but to transfer the patient to hospital which, although they would then receive free NHS care, may not be in their best interests. (POA's have a legal obligation to act in the best interests of the patient) It would perhaps be better to write to the local NHS and Social Services Executives on the lines
" Following recent confirmation by the Ombudsman and the Department of Health that those with Health Needs or disabilities are entitled to 100% NHS funded care, would you please explain why you continue to charge me for care costs which I am not legally obliged to pay?"
This will place 'them' in a dilemma as you can insist on a written answer under threat of a complaint to the Ombudsman, who has ruled that they must explain why patients do or do not meet their 'criteria'. (Obviously they will not have a legally valid answer - so just watch them squirm!)
1. Although the Ombudsman's 'special report' has certainly focussed media attention on this outrageous situation, the report itself has a very serious shortcoming in that it relies on HSC 2001/015 (26th. June 2001) which, according to legal expert Derek Cole, is "unlawful, misleading and likely to deprive patients with 'Health Needs' of their right to free care" A copy of Mr. Cole's 'Detailed comment' on this document, which has been superseded by HSC 2001/17, dated 25th. September 2001., is available on request. In particular, all eligibility criteria based on HSC 2001/015 are fatally flawed because it hinges on the treatment the patient requires to qualify for NHS-funded care, whereas 'Coughlan' is based on the condition of the patient even if no 'treatment is possible. (Note: HSC's (Health Service Circulars) are available on the DoH web site)
2. On page 31 of HSC2001/017 it is clearly admitted: " Where an individual's primary need is health care then the whole package of care must be paid for by the NHS" Consequently the entire paraphernalia of 'Eligibility criteria and means testing' is rendered totally irrelevant, as no additional conditions to qualify a patient for free care can be lawful. I, If the much-revised 'Eligibility Criteria' do not reflect and support the 'Coughlan' ruling, then they and the consequent 'means testing is unlawful.'
3. As many cases potentially involve sums in the region of £100,000 or more, every finding that a patient must become a 'self-funder' is a 'major quasi-judicial decision' under Article 6 as defined in 'Saleisi v. Italy (1993) 26 EHRR 187' "Every (such) decision requires due process of law." In other words SSD's cannot make an arbitrary 'self funding' ruling; patients/POA's are entitled to have their case heard before a court of law.
SHA = Strategic Health Authority. Listed at:
PCT = Primary Care Trust.. Listed at: www.nhs.uk/root/localnhsservices/orgs/trust/search.asp?org=pct
Comprehensive, up to date advice and information is available at www.nhscare.info which also provides a valuable link to other people in a similar situation
Revised 25th March 2003
Footnote from Derek Cole:
In down loading the Ombudsman's form, please make sure you get the right form.
Go to Health service Ombudsman (NOT Parliamentary) and then click 'form'.
You should get the following. You need the 'Form' plus the 'Continuing Care
Form-PDF version (approx. 208kb)
.doc Form - Large Print version (web version)
Continuing care - supplementary form
Continuing care - supplementary form (approx 6 kb)
Download Adobe Acrobat Reader - required to read PDF documents
If you are next of kin or have power of attorney, you have a legal right of access to medical and nursing care records. If you are refused access, you can apply to the local County Court for a 'disclosure order'. To do this obtain from the court Form N244 - or download one from the internet at www.courtservice.gov.uk. The court office will help you to complete the form if you have problems. The filing fee is £60, unless you are claiming 'benefit' - Income Support, Jobseekers or Attendance allowance, etc. Just ask the court office staff - you will find them very helpful - but bear in mind that they cannot give you legal advice.
There is a very helpful section on how to complain about failure by health professionals to disclose a patients medical records. The site to visit is www.informationcommissioner.gov.uk then follow links to 'health records' Also, there is a link to complaints procedures under the 'Public Interest Disclosure Act 1998'