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Carers Week | Legal Ask Me Anything | COMPLETE

Carers Week | Legal Ask Me Anything | COMPLETE

Hi everyone,

Alex Rook, Partner at Irwin Mitchell Solicitors is now here to answer your questions. Please reply to the post below if you have anything you would like to ask.

If you have already asked a question we will repost here.

Thanks,

Simplyhealth Team

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Hi all, looking forward to receiving any questions you may have!

Alex

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EM1234 : Thanks for your time today, I wasn't sure what to ask as I guess it would be good to know the basics - what are my rights as a carer, and how have they changed under the care act?

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Always a good place to start!

The law as I am sure you can imagine is not easily posted in a format like this, but i will give it a go at putting down the headlines. Before I do that, the first thing I would say is that there are lots of good sources of information on the web which are designed to be 'user friendly' and local authorities are under an obligation under s4 of the care act to provide an information and advice service - so do ask them directly!

Coming up next is a very brief summary of carers rights under the Care Act (CA).....

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So here goes for a summary of the law:

The Care Act is the legislation that sets out the rights of most adults (unless their needs are met by the NHS) for care and support. this is about the cared for person, not the carer

In summary this means that the local authority:

-Decide whether someone appears that they may need support

-Conduct an assessment to establish the needs

-Decide if it is necessary to provide services in order to meet those needs by assessing each need against national eligibility criteria.

-If the needs are assessed as being eligible for support, a support plan must be produced to set out the services that will be provided.

-The person then has the choice as to whether or not they wish to receive a direct payment (a cash sum) rather than the service directly so that they can commission the service themselves.

This is not a huge change from the previous legislation, although the introduction of national eligibility criteria is a big change

Carers

In relation to carers however, things have changed quite a bit – and for the better in theory. In practice in a time of cuts I am not sure things have improved however...

In essence the process is now the same for the carer as it is for the person they are caring for. So there is a duty to assess the carers.

Where agreed, this can be a combined assessment for the carer and cared for person.

Just the same as with the cared for person, after determining eligibility (I will say more about that in a bit), they must prepare a carer’s support plan and then undertake a financial assessment to see if the carer should contribute to the cost.

the carer also has a right to request a direct payment so that their own needs can be met by the local authority.

does that make sense? I will post a further reply about the eligibility criteria....

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ok, last piece of the jigsaw is about eligibility, and this bit is really important. so lets assume that you are a carer, and the local authority come out to assess your own needs. How do you know if you will or will not get any support from them for yourself?

the CA introduced what is called the eligibility criteria.

For a Carer they are that:

-

Their needs arise as a consequence of providing necessary care for an adult and that the effect of the carer’s needs is that any of the following circumstances apply:

•The carer’s physical or mental health is, or is at risk of, deteriorating;

•The carer is unable to achieve any of the specified outcomes (see below); and

As a consequence of the above there is, or is likely to be, a significant impact on the carer’s wellbeing.

The Specified outcomes (in italic above)are then set out too, and they include things like Carrying out caring responsibilities the carer has for a child;

Maintaining a habitable home environment; Developing and maintaining family or other personal relationships;

Engaging in work, training, education or volunteering;

and Making use of necessary facilities or services in the local community, including recreational facilities or services;

I did say it was not that straight forward.......

Let me give an example as a final answer:

Lets say that Peter is caring for his wife Mary.

Peter has an assessment from the local authority, and they conclude that he has needs arising as a consequence of providing the necessary care for Mary. His physical or mental health is at risk of deteriorating and he is unable to engage in work, training, education or volunteering as a result, and this is having a significant impact on his wellbeing.

This would mean that he has an eligible need and Peter himself will therefore get a carer support plan and can ask for direct payments in order to help meet these needs.

That is how it should work in theory....

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I don’t know about others ALEX but that is nothing like social worker described to us.

I would agree cuts and what is disclosed are two very different things

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Yes I am sure you are right. I know that Simply Health have some factsheets which set out your rights, and we have some on our website too if needed. You are very welcome to provide them to the social worker and gently explain to him/her what the law says!

Unfortunately if that does not work, you may need to complain and/or see a solicitor

But in essence the problem is not with the Act, but with its implementation.....

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I had it out with my dad’s social worker we told her we need someone that will challage old way of thinking given care act.

But and is big BUT I think if social workers rock boat the in fear of the jobs.

So over coming that too WELL like you say about fact sheets solicitors.

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I’m doing a bit of research for my mum and hope you can help. My grandma’s health isn’t great. She’s been diagnosed with dementia but hasn’t got a recent will. We’re worried that she won’t be able to update it now because a solicitor won’t let her. We haven’t looked for legal help in case there are costs or we’re asking a silly question, but just want a bit of peace of mind. Is there any options you can give us?

Thanks

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Hi there

I am not a wills expert I am sorry to say, but the issue will be whether or not your grandma has the capacity to enter into a will. If she does then she can still prepare one. You may need to speak to a solicitor but I am sure most will take some details and give you a quote before you incur any actual fees - certainly we would at Irwin Mitchell!

hope that is of some help

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JeffAjaxSmith : Currently my local authoritiey I think is not interpering changes law properly with relation to care act THINK social workers are set in the old ways of thinking.

I could be wrong but my interpretation with regard care act IS aids and services.

And if you question what broker’s do you get threatened with managing care budget yourself.

I must of mist that bit in care act 2014

Also what legal bases dose palative care hold and who wheels the power.

Not many people know who to complain to and WHIO are these people.

I for one don’t think they should hide in shadows of hospitals and should be available 24/7 as to my understanding dieing is not a 9 To 5 business.

Am all for inclusive sociarty where we are equal accountable YET dementia Alzheimer’s suffers get the ruff end of the stick when it comes to hospital care treatment.

Take for example the national lung cancer mesothelioma audit.

According to royal college of surgeons Dementia Alzheimer’s suffers regularly are not treated or accepted as suffering from asbestos mesothelioma given they are too ill to under go further test even tho it’s accepted images and current knowledge is acceptable in making diagnoses.

Is that not discrimination breach of there human rights

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Hi there

Sorry to hear of the difficulties you are facing. You have raised a number of issues so I hope the following addresses some of them:

1. a broker should not take issue with you questioning how they are managing a personal budget

2. concerns generally can be raised by way of a complaint, and if that does not resolve it you are entitled to go to the ombudsman who is completely independent. Not the perfect solution, but it can help in some circumstances

3. if there is a legal issue you may want to speak to a social care/community care solicitor, and legal aid may be available

4. regarding Palliative care – there are many issues around the quality of care and I too hear regularly of concerns in this area. This is probably not really an issue under the Care Act though, which is looking at what rights someone has to assessment and care, but more a matter under the Mental Capacity Act about someone's best interests. That said the quality of care should certainly be the same for all without any judgment

and I agree if they are treating people with dementia differently that would be discrimination. again there may be a complaint and/or a need to speak to a solicitor.

Hope that helps

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Hi Cheers I do try push for changes but stuffing illness myself well it’s not easy BUT at least I know more than I did thanks to reply ALEX

As to Dementia mesothelioma well Jeremy hunt tottaly avoided question of human rights when I wrote to health minaster.

Also Caroline Dinenage totally avoided answering that question.

And started talking about some friendly dementia action alliance I have never heard off.

But NOW I have been on few groups even asbestos and mesothelioma surport groups and not one accepts dementia Alzheimer’s suffers can suffer from mesothelioma.

Well apart from Alzheimer’s socarty now AND that’s only becouse of my FOI request research.

Do agree Dementia Alzheimer’s patients are treated in some cases sub human

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Hi Alex. My dad lives on his own and his health has deteriorated quite rapidly, we had the OT in to have a look at his home. We’ve had a few suggestions about how to give him a better quality of life and we were looking to use his money to purchase the items. He can’t write now so can’t sign cheques and I can’t get access to his bank. How do I receive access to the bank account if he’s not in healthy mind? Or is it too late?

Thank you!

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Hi there

Yes this is a familiar and difficult situation. Again like the wills question my expertise is in welfare rather than property and affairs, but in summary:

1. if your father has capacity to decide who he wants to deal with his property and affairs, he can sign an LPA to appoint you.

2. if not, then you will need to apply to the Court of Protection to be appointed his property and affairs deputy

have you tried going into the bank with him and explained the situation? they will be used to this sort of situation and should (I hope!) be able to offer sensible advice.

Hope that helps

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Jacki66 : I am a full time Carer to my physically disabled and severely cognitively impaired husband. Aged 44 he had a very bad car accident which resulted in a stroke and brain injury. He never worked again.

My question to you is, what are my ALLOWABLE DEDUCTIONS off Carers Allowance if I work as a nurse in one shift per week in Scotland? I understand there is a ridiculously low earnings cap and I know I have to double contribute to a pension to allow half of that contribution. What I am not getting info on is what part of anything else is deductible viz. my nursing professional registration fees which are compulsory otherwise I can’t practice. Can these come off before my earnings are worked out? It is ridiculous- we are too young for pensions and I have to work to pay for extra heating and bills that my husband can needs and cannot work for. It’s so unfair. All I’m trying to do is keep myself sane and I want to work, but I’m not being helped by the giver to do just that! They’d rather I sit on my backside and claim Income Suppr5 which I’m sure part of the populous may enjoy but I do not.

I need help with this urgently please as we are moving back to Scotland and I want to apply for work now.

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Hi there

I am really sorry but benefits is not an area that I can advise on. I am not sure if Simply Health can assist - again I think they have factsheets on the area? If not then I would try a charity like DRUK ...

Sorry about that

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Hi Jacki66 we have passed your query on to one of our other experts who should be better placed to answer your question. As soon as we have an answer we will get in contact.

Thanks Alex!

Simplyhealth Team

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Is there an answer to this please?

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Hi Alex,

We are in a bit of a pickle with my mother in law. She has various long term illnesses and currently lives on her own in a house which isn’t suitable for her (increasingly she can’t use the stairs and has toilet accidents). We also think she is showing the early signs of dementia.

My husband has been trying to suggest moving in to assisted living or getting some permanent care but his brother is really against it.

Is there anything he can do to force the situation or does she have to want to make the move herself?

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Hi there

Sorry to hear about this. In essence it comes down to whether your mother-in-law has the capacity to make decision herself, but either way her own views and wishes will be very important

- if she has the capacity to decide, then it is up to her (and she is free, as we all are, to make what may appear to be an 'unwise' decision)

- if she lacks capacity to decide, then a best interests decision can be taken on her behalf. ideally everyone would agree what is in her best interests, but that sounds unlikely, in which case it may need an application to the Court of Protection for a Judge to decide what is best for her.

I would suggest in the first instance that you speak to the adult social care team in her local area and raise it as a safeguarding issue.

If you wanted to you could also speak to a solicitor to get more specific advice, particularly around the law on capacity.....

Again I think SH have factsheets on this area too!

Hope that helps

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Thank you! Very helpful!

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19581979 Carers are supposed to be protected under the care act 2014 in terms of safeguarding. It is supposed to trigger being looked at for instance to see if there is enough support to prevent them being harmed or doing harm.. Is there any actual statutory guidance or case law to really protect carers? I know there is guidance for the person being cared for. But no one really looks after the carer.

Carers more and more seem to be carrying the brunt of these austerity cuts, but little is being really done to care for carers. This means that more carers are likely to be at risk so being actually fairly treated under safeguarding rules is important.

Gill

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Hi there,

I should say at the outset that a care package should certainly be robust and safe. If you do not feel safe caring for someone, you should think about reporting that to adult social services, probably as a safeguarding matter.

You also have no obligation to be a carer – this is an important point generally - so if you do not feel willing or able to continue to care for someone, you are definitely entitled to say that and for social services to step in. I realise however that this may not be what you want to achieve.

Also if you feel that the care plan is not safe, you may need to raise that and challenge it - perhaps with more support it would be more robust? Again a solicitor may be able to help you, possibly on legal aid if can find a lawyer to assist.

Hope that helps

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Hi Alex

I work with family carers as well as being a carer. I am just very aware that the Care Act seems to have done nothing to improve things for carers.

I had hoped there were clearer statutory guidelines in terms of carers and safeguarding but I haven't seen any. Guidance is still much more about the person in need.

Best wishes

Gill

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CarerHMJ : As a Carer of over 30 years experience now, I know my Human Rights are being trampled on. I have been told by my son's former social worker I am 'a nuisance and irrelevant'. Despite the severity of my son's condition, He is not being supported any longer in any way by Health or Social Care services in this area and is currently classified as "homeless at home" and I am working 24/7 - 19 waking hours a day minimum - with no respite, as I have for years. The Care Act is a joke in Norfolk and don't even ask about the Autism Act...

Can I ask the legal Advisor therefore - "what real REMEDIES can carers take to enforce their rights in an area that is a legal aid desert? - an area with no legal help - not even a CAB any more?" We have no Carers support in this area either. I would also add that I've written to numerous MPs - all of whom have declined to help or even engage with me, especially my own MP who is a Senior Conservative Cabinet Minister - that is NOT a route for support for us.

If I can also ask: "Are Carers a "protected class" under the Equalities Act any more? If so, what are our rights under that act in terms of expectation of "reasonable adjustments"? If not - do we have any rights any more?

FYI I am also a disabled person in my own right but I am told that as I lost my PIP last year this means that I am no longer recognised as such, despite still being in receipt of the Severe Disability Premium on my Income support.

Thank you. I am asking this in advance as I cannot guarantee I can be online at the specified time, but Im sure I will get an alert I can read later

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JeffAjaxSmith Currently my local authoritiey I think is not interpering changes law properly with relation to care act THINK social workers are set in the old ways of thinking.

I could be wrong but my interpretation with regard care act IS aids and services.

And if you question what broker’s do, do you get threatened with managing care budget yourself?

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JeffAjaxSmith Also what legal basis does palliative care hold and who wields the power?

Not many people know who to complain to and who are these people? I for one don’t think they should hide in shadows of hospitals and should be available 24/7 as to my understanding dieing is not a 9 To 5 business. I am all for inclusive sociarty where we are equal accountable YET dementia Alzheimer’s suffers get the ruff end of the stick when it comes to hospital care treatment. Take for example the national lung cancer mesothelioma audit. According to royal college of surgeons Dementia Alzheimer’s suffers regularly are not treated or accepted as suffering from asbestos mesothelioma given they are too ill to under go further test even tho it’s accepted images and current knowledge is acceptable in making diagnoses. Is that not discrimination breach of there human rights?

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I'm very sorry to hear about this. You raise a number of issues which I will try and address:

the remedies are essentially a complaint to them/ombudsman, or to go to a solicitor. I completely understand the difficulties with regards to an advice desert, the sad truth is that we are also inundated and often have to say no to people as we have no capacity for new work. You could try the law society who should assist you to find a solicitor.

carers are not themselves a group under the EA, but it sounds like you would be if you have a disability anyway. Your son would be too.

as I said above, I don't think that the issues you face are with the law and your rights when they are on paper, but with how they are being put into practice 'on the ground'.

Hopefully a complaint and/or the law society can assist you to enforce them.....

All the best

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Hi Cheers Alex I have been trough 3 social workers and dad’s fair weather care plans have been launched on road more times than I can remember.

Like you say law is great ITs how the advocates interpreting law that’s issue.

But like I said good analogy of social worker is fair weather friends WELL that’s been my experience BUT with sites like this and live chats

Think fair weather friends days are numbed WELL unless the change law

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thank you Alex. I have just read your reply. It is as I suspected and yes I am trying to get support with a complaint to the LGO and the Parliamentary Ombudsman.

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I think my time is up! Thanks everyone for contributing, I hope it has been helpful....

Alex

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Thanks for advice

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Thanks very much Alex! You have been really helpful and we hope the community have found this useful.

The Simplyhealth Team

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Really useful and thanks all for help reminder.

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That is all really useful information , and has clarified some things for me , thank you

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i receive standard rate pip care component my mum looks after me 40+ hours a week she is self empolyed can she get carers

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