Community care refers to the duties of local authorities and the NHS to adults and children who require their services, whether at home, in hospital, in a residential care placement, or otherwise in the community. These services could include providing care and support, adaptations to a property, arranging respite or longer term care in residential care and nursing homes.
We help individuals and professionals to navigate this complex area of law by providing legal advice on the duties of public bodies and supporting our clients throughout the process of securing the important services they are entitled to, enabling them to lead as full a life as possible.
Local authorities have duties to assess and provide services or funding to meet the eligible care needs of disabled children, adults and carers. Children’s assessments are conducted in accordance with the Children Act 1989 and adults’ needs assessments are conducted in accordance with the Care Act 2014. We help disabled children, adults and their carers to access the support that they need from the local authority.
We may be able to assist with the following issues:
Securing an assessment of needs, or challenging a refusal to complete an assessment
Challenging a care package that is insufficient
Challenging a proposal to cut the existing level of support provided
Advising on the transition process from children’s to adult social care services
Our special educational needs specialists can also provide advice and support to families of children with special educational needs.
NHS Continuing Healthcare funding
Where an individual’s need for care results primarily from a health condition, the NHS may have a duty to provide that care via NHS Continuing Healthcare funding. NHS Continuing Healthcare is free of charge regardless of an individual’s financial circumstances, which means that anyone who is eligible for NHS Continuing Healthcare funding should not be asked to pay or to contribute towards the cost of their care.
We offer advice and support in challenging NHS Continuing Healthcare funding decisions, where a decision has been made that an individual is ineligible for NHS Continuing Healthcare funding. We can act on behalf of an individual and also provide advice to family members or professional deputies on the NHS Continuing Healthcare funding process.
Direct payments and personal health budgets
Direct payments and personal health budgets are intended to give people more choice and control over how they receive care and support from local authorities and the NHS. Once an individual’s needs have been assessed, a calculation will be made to determine the likely cost of the services required to meet those needs. This can then be paid to the individual in the form of a direct payment or personal health budget, which the individual can use to buy services from local providers. There are certain conditions that apply to the making of direct payments and how they are managed.
We can assist individuals or professional deputies with:
Securing support through direct payments and personal health budgets
Challenging a refusal to provide direct payments once they have been requested
Challenging the level of direct payments provided or any reduction in the amount of payments
Financial assessments and charges for care
NHS care is free of charge regardless of your financial circumstances and you should not be asked to pay for care provided via NHS Continuing Healthcare funding. However, local authorities have a duty to charge for the services they provide to those with savings above a particular threshold. Depending on the level of your finances, you may be asked to pay for some or all of your care. The local authority will ordinarily undertake a financial assessment after completing the needs assessment process to determine the level of financial contribution required.
We can investigate the relevant legislation and advise individuals or professional deputies on whether the charging provisions have been lawfully applied.
We can also provide advice to individuals or professional deputies on how a personal injury compensation award will impact the funding of the care and support package.
NHS Continuing Healthcare funding
Find out how to access it and what support we can provide you with
We have a wide and diverse client base, supporting clients, their carers, case managers and professional deputies in securing services from public authorities.
Services for Professional Deputies
As specialists in Court of Protection (COP), we understand the challenges of managing the financial affairs of those with disabilities or who lack capacity. Our expertise in Community Care/Public Law, COP Health & Welfare and Special Educational Needs, means we are uniquely placed to provide holistic, pragmatic advice. We join the dots, into one neat package, bridging the gap between overlapping complex legal frameworks.
Deputies often need cost-effective, responsive, practical, but niche legal advice. Issues may range from disputes with health and social care regarding high cost care packages, to Special Educational Needs Tribunal appeals involving a costly package of support for those who are unable to attend school or college (EOTAS) or residential school placement. Coupled with this, Deputies frequently require specialist advice regarding building contracts and employment issues arising from a care team.
For more information on how we can help, please click the link below to access our services for professional deputies brochure.
The first stage is for the appropriate authority to carry out an assessment to determine your needs and any services required to meet them. Once the assessment is complete, a care plan will be produced, setting out what your needs are, what will be done by the authority to meet those needs and how it will be done. The plan should also include a section outlining any needs that they cannot meet and explaining why. You may also be asked to engage in a financial assessment to determine if you should pay for some or all of your care.
What is a Care Act assessment?
Following the implementation of the Care Act 2014, the duties of local authorities to adults with care needs and their carers became 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 request 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 carer’s assessment. This may identify whether they are entitled to receive assistance such as practical support, equipment and respite.
There is no statutory timescale for an assessment. However, it must be carried out within a reasonable period of time, which we would expect to be between 4-6 weeks. You should be advised of the likely timescale at the outset of the assessment process.
What is NHS Continuing Healthcare funding and what is a Decision Support Tool (DST)?
Adults with complex health needs may be eligible for NHS Continuing Healthcare. This is where the NHS pays for all of the costs of caring for the adult’s health-related needs.
The first stage in obtaining this funding is to request an assessment. A checklist will be completed, followed by a decision support tool ("DST") – a national tool, developed to support practitioners in the application of the national framework for NHS continuing healthcare and NHS-funded nursing care. The tool is a way of bringing together information from the assessment of needs and applying evidence in a single format to facilitate consistent evidence-based recommendations and decision making regarding eligibility.
A multi-disciplinary team of professionals from both the health and social care fields will complete the DST. They will use their combined clinical skill, expertise and evidence-based professional judgement to consider your needs and whether they indicate that you have a primary health need. The statutory timeframe to complete the assessment process if 28 working days.
Will I have to pay for the care I receive?
This will depend on the type of care that you are receiving.
NHS care is free at the point of delivery, which means that you should not be asked to pay for care provided via NHS Continuing Healthcare funding.
Local authorities have a duty to charge for the services they provide to those with savings of over £23,250. Those with a lower level of savings may still have to make a contribution towards the cost of their care.
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 care and support is delivered 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.
I received an award for a personal injury, will I have to pay for my care?
The evolving law on double recovery is strict and makes it harder to obtain state funded care where there has been a personal injury award that includes the costs of a care package. However, in cases where the claimant recovers less than 100% of the full value of their claim or the cost of care is greater than the award, they may be able to seek assistance from the local authority towards the cost of their care.
What is the process for getting assistance for my disabled child?
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 support 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 carer’s assessment. This will identify whether they are entitled to receive assistance such as practical support, equipment and respite.
How do I challenge an assessment?
This will depend on the assessment that you have received. 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, which will depend on the seriousness of the failings.
If a decision is reached to refuse funding through NHS Continuing Healthcare, we can investigate the merits of an appeal and assist you. The appeals process is twofold – first, there will be a local resolution meeting and if you still disagree with the outcome, 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 the options for the delivery of that support, challenge any delays in implementing it and challenge the care package itself if you feel it is inadequate.
What is a judicial review?
A judicial review is a legal 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 a mechanism by which a judge considers whether a public body has acted in accordance with its legal obligations. Decisions by a public body can be challenged on a number of grounds – if it has acted in a manner which is in breach of the law, if it has acted unreasonably or if it has breached the human rights of the person involved.
Do you offer legal aid?
There are very strict financial criteria for who might be eligible for government-funded legal aid advice. We do not offer community care advice funded by legal aid. Information about eligibility for legal aid is available on the government website: https://checklegalaid.service.gov.uk/scope/diagnosis
We will be happy to discuss the options for funding legal advice and representation with you to help you to decide how to proceed.
What are your fees? Can I afford you?
We understand that costs are one of the biggest concerns when approaching a solicitor. We make sure that the costs you incur are clear and transparent from the outset and stay under your control at all times. Your first contact with us will be a free telephone conversation. During this conversation we will discuss your options, including what you can do yourself, whether you really need further advice and the possible costs. Once you have had a chance to consider all the options we discuss with you, you can then decide whether you would like to instruct us and the extent of work that you would like us to do for you.
What are disbursements?
Disbursements are any costs associated with your case that are not our fees. This includes costs for independent experts, such as social workers, clinicians and therapists. We only advise that you seek expert advice when it is absolutely necessary to your case and will be clear and transparent with you about the costs involved.