Dear Ms H******,

I make the following legal submission on behalf of the Estate of Mr P***.

PROCEDURE.

I have consulted further with Mrs P*** to discuss with her the possibility that, as a compromise, she might make an 'ex gratia' part payment out of her own assets to settle the matter. However, following the overwhelming evidence recorded by the Select Committee that everything being done is totally unlawful, she is adamant that the Estate of Mr P*** will not pay anything until the law has been clarified by the Court of Appeal. We are confident that any such ruling in any test case would establish that the Estate of Mr P*** is not liable to pay.

The Court of Appeal has now strengthened R (Cowl) v Plymouth City Council 14th Dec 2001 by ruling in Burchall v Bullard & others(2005)EWCA Civ 358 8 April 2005 that you MUST seek mediation before going to Court.

The most logical method would seem to be to ask if one of the Chairmen on the panel of the Sutton Benefit Appeal Service office would act. In this Appeal Service System itself citizens have their costs (except professional legal costs) met but in any case Mrs P*** informs me that their are virtually no assets in the Estate so I fear the costs would fall on you.

Although I am not a barrister or solicitor, I would expect the mediator to hear my representations, as the Appeal Service does when I appear 'pro bono' for disability groups.

Your possible options would appear to be two. Firstly, you can assert a straight claim in quasi contract under Section 21 of the 1948 Act. Our reply is that Mr P*** was ultra vires your council under that section by the Coughlan ruling. Secondly, you can seek to place a charge under the 1983 Act on any property in Mr P***'s estate. Mrs P*** asserts, and she checked the documents and rang me back, that 50% of the property was always hers and it became 100% hers in 1998.

Although Councils can in certain circumstances overturn gifts of property, it would seem that if such a right existed in this case, you are now time-barred. However, if you insist it might be useful for the mediator to look at this.

As I have already said to the Land Registrar, we would argue that the 1983 Act has been amended by Section 6 of the Human Rights Act so that, in compliance with the promises King John made at Runneymede the attempt to Register cannot appear on the public 'Day List' until the Adjudicator has found at least a Prima Facie case - in this case being satisfied that you are not time-barred but more importantly being satisfied that the care of Mr P*** was 'intra vires' your council.

In any case, no actual action can be taken to realize the asset while Mrs P*** occupies the house.

EVIDENCE The whole drift of Lord Woolf's judgement in Cowl was that the Judges did not wish to be bogged down in masses of medical evidence. Is it possible for us to 'stipulate', as the Americans say, that the evidence given by Nicola Mackintosh to the Committee is correct, that Pam Coughlan was and is at all times on the bottom edge of the Middle Bank of RCNN care and that most residents in Nursing Homes have greater need than her? Do you agree?

If you saw her appearance after me on Channel Four News on 19th April, this certainly seemed to be the case. With her fellow residents (and they were ALL specifically covered by the Coughlan decision) she was sitting in her wheelchair round the table eating her dinner. See the broadcast on www.nhscare.info.

If you want to see more detailed evidence, with the help of Steve Squires (winner of the Dorset case) Pam has it available for us. In this event, will you accept her signed account or do you want it strictly proved?

We may wish to adopt the view of James Goudie Q.C., counsel to the H.A. during the case. He advised Essex C.C. in February 2000 that Pam is 'not a marginal case'.

As far as the medical condition of the late Mr P*** is concerned, we say the existing medical evidence shows that without doubt he was more seriously ill and had greater needs than Pam Coughlan, who by law is 'ultra vires' loval authorities. However, we may wish to argue that we can reinforce this by the evidence of Mrs P*** and other lay witnesses under the Court of Appeal's judgement in Armstrong & Another v First York Ltd 17th Jan, 2005 that lay evidence can be preferred to evidence from NHS sources.

We assume that you will make available to the 'mediator' all the medical details held by yourselves and the PCT so that it will not be necessary for us to ask for Discovery of Documents from (a) Your council (b) the primary Care Trust and (c) the Strategic Health Authority of all records, medical or otherwise, including internal memos, minutes of meetings and messages passed between them concerning the affairs of Mr P*** and concerning the consideration, drawing up and application of the criteria, assessments, review panels and all other matters concerning free continuing care applicable in Sutton since July, 1999, the date of the Coughlan ruling.

THE CRITERIA,

It is our contention that the 'criteria' are only a private agreement between your Council and the SHA and have no relevance to any legal dispute between your Council and the Estate of Mr P***, there being no 'jus tertium quid' in English Law. Lord Woolf made it clear that the only 'rulebook' to be followed in this current dispute is the Coughlan ruling itself. He said 'However the eligibility criteria cannot place a responsibility on the local authority which goes beyond the terms of section 21.' That is the ONLY test which applies.

Indeed, Dr Ladyman confirmed this on 17th March, 2005. He told the Select Committee. …..the Coughlan judgment ...... is quite often misinterpreted. The Coughlan judgment said that there is a maximum level at which a council which has a responsibility to provide funding for social care can be expected to provide that funding, and beyond that it is ultra vires. The Coughlan judgment did not make comments about NHS continuing care; it simply said: "Here is the most that a council's remit allows it to pay."

I am not entirely sure that Dr Ladyman, the Committee or even Lord Woolf realised the full implications. It surely follows, as night follows the day, that Social Services must write and implement the criteria, that the custom of the NHS doings so is a best futile and arguably unlawful. I find this situation bizarre.

THE LAW We submit that Mr P*** had needs more than 'ancillary or incidental to the accommodation' and his 'needs were primarily health needs'. (R (Coughlan) V N & E Devon H.A. July 1999) and that the Council has not discharged the onus of proof on the Council to prove that Mr P*** was not ultra vires the Council under Section 21 of the National Assistance Act, 1948.

The decision to pass Mr P*** to the Council was a major quasi-judicial decision at Common Law putting in jeopardy his entire assets and no hearing complying with the Rules of Natural Justice was held on this issue before Mr P*** was transferred from the NHS to the Council for financial assessment.

No Independent Tribunal complying with Article 6 of the Human Rights Act (Salesi v. Italy (1993) 26 EHRR 187, Schuler-Zgraggen v. Switzerland (1993) 16 EHRR 405 Feldbrugge v. Netherlands and Deumeland v. Germany) was set up prior to Mr P***'s transfer to your Council to determine if under the Coughlan rules Mr P*** could lawfully be so transferred.

Those acting for the Secretary of State have conceded that they haven't the faintest idea if they are acting lawfully so we submit it was unlawful for the Council to accept responsibility for Mr P*** until the Law is clarified. Bevan Ashford, NHS Solicitors, wrote to N E London SHA on 28th Oct, 2002 'The dividing line between fully funded NHS care and other forms of care where responsibility is shared has proved difficult to define and even the decision…..in…..Coughlan…..has not resulted in a great deal more clarity. Indeed the Court of Appeal accepted that this is not an area where the decision-making is easy. Accordingly in my view the guidance in the Coughlan decision - that the NHS should meet the full costs of care packages where the level of nursing care is more than incidental or ancillary to the provision of accommodation is likely to remain good law'.

The Thames Valley SHA internal briefing of August 2003 says '….there is no other case law derived benchmark against which to judge the lawfulness or otherwise of the effect of the implementation of the criteria.'

In a letter to Cllr Hugh Carey, Cabinet Member for Adult Services, Buckinghamshire County Council, Mrs. Jane Betts, Chairwoman of TVSHA, wrote in late June 2003. 'the board accepts that legal interpretation will frequently differ. If one pays the same question to a 100 lawyers there is a strong possibility one will receive 100 different answers this is even more likely in such a complex area where national guidance lacks specificity'. It is unlawful for the NHS to transfer cases to Social Services until the Secretary of State has established that the NHS is obeying the law.

Our campaign group has now consulted with The Law Society and they have kindly supplied us with a summary of their evidence to the Select Committee for our use. The key passage says

'According to the Coughlan judgement, the boundary between health
and social care is not one of policy, but of law. Legally, there has been no
material change in the scope of the NHS continuing health care
responsibilities since inception and no amendment to the primary
statutory obligation (albeit that the duty is now to be found in the
consolidated 1977 NHS Act). However over the past decades, changes in
the provision of long term chronic health care services following the
development of community care has created confusion in relation to
funding responsibilities and blurred the practical boundary between
health and social care. The Law Society is concerned that health care has been redefined as
social care without any primary legislation or debate, with the effect
being that the state may seek payment for chronic and long term health
services.

We also believe that successive Governments have actively contributed to
this confusion by issuing incorrect circular guidance and failing to
ensure that Health Authorities' eligibility criteria and assessment
methods comply with the judgment of the Court of Appeal in the Coughlan
case. This has resulted in many vulnerable people and their families
being forced to pay for health care which should be the responsibility
of the NHS and free at the point of delivery.'

In the light of the above, I intend to argue that the concept of 'Social Care' as distinct from 'Health Care' does not exist either in law or in medicine and is merely a figment of the Secretary of State's imagination. The Select Committee clearly established that no definition exists to distinguish between the two.

Mrs P*** as a Council Tax payer is obviously anxious that your council should not make 'ultra vires' payments. I have discussed this with the District Auditors for East Sussex and Essex. In Essex, Mr Julian Rickett said that Social Services and self-funders seemed to be on the same side. I replied that this was so and Councils suing the patient should also at the same time sue the PCT, as one or other must be liable. He hastily replied that he had not said that, but he didn't say I was wrong. Mrs P*** and other electors would expect you to sue the PCT as well,

CONCLUSION

We submit that the Mediator or ultimately if necessary the Court of Appeal should examine the comparative medical evidence of Pam Coughlan and the late Mr P*** and then ask if 'the ordinary citizen, the passenger in the Clapham omnibus', would agree with us that without a shadow of doubt the late Mr P***'s 'needs were primarily health needs' and his care more than 'ancillary to the accommodation' under the Coughlan ruling

Derek J.Cole.

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