22 Armitage Court, Sunninghill, Ascot, Berks SL5 9TA.
Tel/Fax 01344 620775
Our Ref: ANJU4.RTF 19th November 2002
Your Ref: AB/AD and AB/jc dated 15 November 2002.
Anju Bhatti, Duty Social Worker, Partnership with Health Team
Wellington House, Wellington Road, Wokingham, Berks RG40 2QB
Copies: Holyport Lodge, "Eve Lovelocks Care" File, Others as required.
Subject: Care of Mrs Evelyn Lovelock of 23 Catalina Close Woodley
I am pleased to confirm that my mother Eve was safely moved from Battle Hospital Castle Ward to Holyport Lodge Nursing Home yesterday. Many Thanks for progressing this move at your end, contracting Holyport Lodge, and for the two letters referenced above with attached Care Plan, etc. I am sure we all agree that my mother is in the best place.
I have been fortunate in obtaining some expert advice, after following up one of those news headlines in my paper, "Eve Lovelock's Care" Issue 1.0. In summary the advice was that we should not pay any contribution towards the cost of Eve's care, since this should be paid for by the NHS. The rules and procedures currently being followed by the local authority are probably unlawful, since the 1999 Court of Appeal "Coughlan judgment".
Furthermore, I am now advised that the Ombudsman has ruled in a case in Berkshire that under 'R (Coughlan) v N & E Devon H.A. , July 1999, the Health Acts say the NHS must pay the full fees (100%) for patients like my mother. In a similar case in Dorset the Ombudsman has ruled that the current criteria, unlawful under the judgment, must no longer be used.
The Court of Appeal ruled that it is 'ultra vires' (beyond the lawful powers) under section 21 of the National Assistance Act, 1948 for Social Services to pay or require my mother to pay any part of her nursing home costs or enquire into my mother's finances at all. However, without prejudice and reserving all financial and legal rights, I hope you personally will continue to handle my mother's case at the expense of the PCT.
The enquiry into my mother's means was unlawful as under the Health Acts the NHS cannot make any such enquiry.
You should recover all your costs from the PCT under 'Coughlan'.
The Minister's circular of 11th August 1999, after Coughlan, directs that (in cases like my mother's) Nursing home fees are to be fully paid out of public funds until the legal position is settled, and I ask you to confirm that Holyport Lodge will be paid in full out of public funds.
As power of attorney, I would be prohibited by law from making any unlawful payment or signing any unlawful agreement, so I can sign nothing. In any case, according to the Court of Appeal the agreement would be void by operation of law. As a council tax payer, I note that the PCT should reimburse the Council for any costs incurred.
Please let me know what arrangements you are making to see Holyport Lodge are paid on time in full. I cannot lawfully pay them anything myself.
However, I recognize your need to work within an existing framework of rules - even if these rules are subject to change because they are known to be unlawful. In the event that you are unable to comply with the minister's directive of 11th August 1999 quickly, with extreme reluctance and without prejudice, I suggest the most practical short term solution is for any payments from my mother, or myself acting on behalf of my mother, to be regarded as a "loan" under protest. Both myself and the authority can Reserve All Rights at this stage. I see no reason why Holyport Lodge need be affected by this issue: their bills must be paid.
I cannot countersign your letter ref AB/jc, but instead provide this letter and the following additional comment: in your letter you say that you understand I am willing to contribute to the cost of accommodation: I made no such undertaking: I have simply provided you the application on behalf of my mother attached to ANJU3.RTF and with All Rights Reserved regarding who pays. You will note that I needed to amend the statements on the form: if I had not, the house being discussed would have been mine in Armitage Court rather than my mother's in Catalina Close.
From your letter I understand that the proposal, which is in fact unlawful, is that £750/week to Holyport Lodge would be split, for the next 3 months, as follows: The Authority: £489/week ; Health Authority: £106/week ; Eve Lovelock: £155/week (Loan - All Rights Reserved). Is this is correct ? What was the proposed funding after 3 months ? What if the house sale was delayed (loan details) ?
My mother will need to sell her house anyway, but the money by law must go into her account. I shall challenge any attempt to 'charge' her property on the Land Registry as unlawful.
I understand that much of this letter may come as a shock to you, and you will need to refer it "up the reporting chain". I certainly wish to gain a better understanding of terms and organizations such as "The Authority", "The Health Authority", PCT, NHS/Social Services/Benefits Agency, Wokingham Unitary - both in terms of reporting structure, geographic coverage - and, perhaps most importantly - what is happening following "Coughlan". I understand that private settlements are being made following Coughlan with the intention of "keeping things quiet". Eve Lovelock's case appears to be clear-cut, uncomplicated and well documented. I look forward with interest to see who contacts me.
I attach the amended and signed care plan as you requested. I hope we can work together in the coming days to solve any short term problems and clarify longer term issues such as the oxygen concentrator and loans related to the sale of 23 Catalina Close. My mother obviously needs to sell the house anyway, but at law the proceeds belong to her, not your Council.
On a personal note, thank you for all your help.
(son of Evelyn Lovelock)