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TGWU INTERPRETS RESIDENTIAL CARE COURT JUDGMENTS

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Two recent decisions in the house of lords and high court are likely to leave many older and disabled people withou...
Two recent decisions in the house of lords and high court are likely to leave many older and disabled people without services they need and worrying even more about whether they will have to use almost every last penny to pay for their residential care.

1. R v Gloucestershire CC and the Secretary of State for Health, House of Lords: 20 March:

Decision: By a 3-2 majority the House of Lords declared: 'That a local authority may take its resources into account when accessing or reassessing needs under section 2(1) of the Chronically Sick and Disabled Persons Act 1970.

Who will this affect?:

Every older disabled person who needs home care, house adaptations, meals on wheels etc.

What does the ruling in the House of Lords mean?:

Most local authorities have criteria for deciding who can receive social services. Until now, if a person could prove that they had a need for help to enable them to live independently in their own home then under the law, the council had a duty to meet that need.

That is, it would have to find the necessary money to provide it. When a council did not provide the service they could be challenged in the courts for failing to follow the law.

Now the House of Lords has said that if a council says it cannot afford to provide the service then they will still be acting within the law. Or if a council wants to, it can tighten its criteria to make it more difficult for people to get services so that it does not go over-budget - irrespective of how many people might actually need community care services.

The services older people need will now depend even more on where they live and the amount of money each particular council decides to put into vital community care services.

As one of the dissenting Law Lords said: '...Parliament cannot have intended that the standards and expectations for measuring the needs of the disabled in Bermondsey should differ from those in Belgrave Square.'

However, the Law Lords said that a council must continue to act responsibly and reasonably. For example if a council did refuse to provide a service to someone who was at serious risk they could be challenged for behaving 'irrationally'. This right, however is a very limited one compared to a right to have your needs assessed and services provided without reference to how much money the council has put in its budget.

Campaigning issues - questions to raise with MPs and local councillors:

-- a change in the law so that councils cannot take resources into account when assessing and meeting needs of disabled people.

-- more money from central government so that councils can implement the community care law as Parliament intended.

-- a need for national minimum standards and criteria for services so that where you live does not make a difference to the services disabled people receive.

-- a commitment from councils to base their service provision on an assessment of the total of the real needs in the community not just on how much money they are prepared to allocate arbitrarily to community care.

-- a commitment from councils not to use the Gloucestershire decision as an excuse to cut their community care budget nor tighten the criteria for services. These are already tight enough and many people already do not get what they need. If necessary more pensioners will have to take councils to court to fight for services they desperately need.

2. R v Sefton Council: Ruling in the High Court 26 March:

Decisions:

1. The local authority can take into account its own resourcs in deciding whether it has a duty to provide residential care to older people.

2. The local authority does not necessarily have a duty to provide residential care to anyone who has the means to pay for it themselves.

Who is affected?

All older people who need residential care and financial help from the council in the future. It should not affect people who have been assessed by the council as needing residential care if the council is already paying or contributing to the cost.

What does the ruling mean? When a local authority has assessed an older person as needing residential care, Parliament intend that people could expect a contribution to the cost of their care to come from the local authority.

To put that into effect Parliament issued regulations which stated that people with over£16,000 capital paid the full cost of residential care; between£16,000 and£10,000 they paid a contribution and capital of less than

£10,000 would be disregarded and the council would meet the full cost of the care.

Sefton Council had decided that people had to fund their own care until their capital reached a mere£1,500. The High Court has endorsed Sefton Council's approach. This means that any council can decide that they are not under any obligation to provide care until someone's money has run out completely.

Each council will be able to set their own cut-off point - which of course could vary from time to time depending on their own financial position.

Older people were assured categorically that they could keep£10,000. Does this judgement mean that another promise is being broken? Help the Aged is trying to get this judgement reversed: campaigning will help.

Campaigning issues - questions to raise with MPs and local councillors:

-- seek commitment from your local authority that they will abide by the

regulations.

-- urgent and immediate changes in the law to ensure that older people can feel secure about they help that are entitled to expect when they need care.

-- adequate funding for long term care so that access to good quality residential care is not dependent on whether someone can 'top-up' the cost of their own care.

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