My parent has been told that they need to go into a care home. They own their own home but I helped to buy it. What will happen to my share if it has to be sold?

You should be able to argue that you have a beneficial interest in the property providing you have evidence to show that you contributed to the original purchase price, otherwise your claim may be more difficult to argue. When entering into arrangements of this sort with a family member it is always best to make sure that either your name is included on the title deeds or alternatively that there is a formal trust deed. You may need to take legal advice.

My parent has been told that they cannot receive free NHS care because they only have social needs. What does this mean?

In order to qualify for free NHS care you must show that you have medical needs which are considered to be intense, complex and unpredictable. Such medical needs must be more than merely incidental to your overall care package. Social care is the practical and emotional support that is provided to help people do the everyday things that most of us take for granted. e.g. getting in and out of bed, getting washed and dressed, eating at mealtimes etc., as well as keeping an eye on someone to make sure they are safe.

What are the criteria for receiving fully funded NHS care?

You must be able to show that you have a primary need for health care. This is determined by carrying out what is known as a Continuing Care assessment. A trained assessor will complete a document called a ‘decision support tool’ which helps a panel of healthcare professionals to reach a decision. The decision support tool looks at the care needs in a total of 11 care domains and grades them as Low, Moderate High, Severe or Priority. If you have one priority need or two severe needs you should automatically qualify for free care. If however, you have a number of care needs which are graded high and/or moderate you may still qualify and it may be worth appealing against any decision not to provide free care.

What is a deferred payment agreement for care homes?

A deferred payment agreement is an arrangement whereby the Local Authority helps to pay the cost of the care home fees pending the sale of a property. In return they secure their interest by way of a legal charge on the property. This then enables them to recover any fees paid from the proceeds of the sale when the property is eventually sold. Such arrangements are interest free until 56 days after the date of the resident’s death. You should always seek independent legal advice before signing a deferred payment agreement.

If I go into a care home how much capital am I allowed before I have to pay towards my care home fees?

From April 2009 the first £14,000 of any Capital is totally disregarded. If you have Capital of between £14,000 and £23,000, then you will be treated as having additional weekly income of £1 for every £250 over £14,000 for the purpose of assessing how much you have to pay towards your fees.

If your Capital is over £23,000 then you will be expected to pay the full cost of your care. Capital can include the value of your former home after the first 12 weeks of you becoming a permanent resident in a care home.

The value of your home is however disregarded if any of the following people still live in the property:

  • Your partner
  • A lone parent who is your estranged or divorced partner
  • A child under the age of 16 A relative over the age of 60
  • A relative who is incapacitated by reason of long term illness or disability.

Are there any alternative ways of highlighting shortcomings in healthcare other than by pursuing a claim for compensation?

Yes. For NHS treatment a complaint process exists (see the relevant section of this web site). Organisations providing treatment outside the NHS may have their own complaints process. Many healthcare professionals have professional regulatory bodies such as the General Medical Council and General Dental Council to whom concerns about individual practitioners can be directed. In other circumstances, contacting your local Member of Parliament or press may be an alternative to seeking legal advice.

How long will it take to conclude a medical negligence claim?

Each case is different. It depends on many factors including the complexity of the case, the disease processes under consideration, the availability of records, the extent of necessary expert evidence, the attitude of the defendant, and court timetables.

What funding options are available to pay for medical negligence claims?

The options are limited. Some trade unions will provide financial support to their members, legal expenses cover under existing insurance policies may be available, legal aid is an option for those who satisfy certain criteria, if a case is strong a ‘no win, no fee’ agreement with or without supportive insurance would be a possibility and finally a claimant may use their own money as they would to purchase other goods or services.

Who decides whether medical treatment was negligent?

Ultimately, it would be a judge relying on expert evidence from medical professionals if the case was one of the small percentage of medical negligence claims that go to trial. The test for clinical negligence was laid down by the court over 50 years ago. Fundamentally, it is the opinion of other healthcare professionals within the relevant speciality, not the opinion of the patient, their family or friends, that determines whether a claimant’s treatment can be described as negligent or not.

Is there a no fault compensation scheme for medical negligence in this country?

No. For compensation to be paid the claimant has to prove each aspect of their case. The claimant has the burden of proving their treatment was negligent, the negligent treatment caused harm, the extent of that harm and ultimately, the financial value of that harm.

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