Dear Ms. Yelland,

Thank you for your letter of Sept. 4th. So, you now claim that the former Health Authorities - NEDHA and SWHA - carried out funding reviews in 1999 - long before the Ombudsmans report concluding that the eligibility criteria employed were unlawful was even published !

I find that very hard to believe, unless of course these authorities were always well aware that their criteria were unlawful. Presumably these 'reviews' were carried out behind closed doors, by a panel hand picked by the Authority itself - which is likewise unlawful.

If these reviews were indeed carried out, I would like to know how many and what proportion had their funding decisions reversed.

However, none of this alters the fact that your latest criteria dated June 2003, is completely unlawful and clearly designed to maintain the 'status quo' by depriving those with a health need of the right to fully funded NHS care. By your own admission, your latest criteria is based on HSC2001/015: LAC (2001) 18 which has been described as 'Catastrophically Unlawful' by legal expert Derek Cole., as it is based on the treatment the patient must receive wheras 'Coughlan' is based on the condition of the patient, even if no treatment is possible.There is no mention of Miss Coughlan's 'treatment' in the judgement. It is based on her 'condition' which, in Lord Woolf's words, went "far beyond what the NHS could lawfully pass on to Social Services" (Please see attachment) You may wish to consult the Authority's solicitors. Bevan Ashfords, on this.

Your June 2003 document contains numerous legally flawed statements, such as para. 3.8 'There is an important distinction between people who require 'continuing NHS health care' and others with 'continuing health needs'. There is no such distinction in Lord Woolf's (Coughlan) judgement. Both categories are entitled to free care and any 'distinction' is catastrophically unlawful. In fact this whole document is a flagrant and disgraceful defiance of the Court of Appeal which ruled that those 'whose primary needs are health needs are, under the Health Acts, 100% the responsibility of the NHS'

Para. 3.9 The concept of 'Registered Nursing Care' and the consequent 'Care Banding' is legally flawed as ALL those within the High and Medium bands have clear 'health needs' entitling them to free care under the Health Acts as defined by 'Coughlan'

CRITERION 1; para. 4.1.1 This whole paragraph is totally unlawful; 'complexity or intensity or the need for frequent, not easily predictable, interventions . . . etc.' has no validity in law as 'Coughlan' confirms that all those with 'health needs or disabilities' are entitled to 100% NHS funded care.

para 4.1.2 is equally unlawful. It is irrelevant whether the patient is 'stable' or 'unstable'. If there are 'Health Needs' the patient automatically qualifies for free care.

CRITERION 2; The 'complexity' of a patients 'health care needs' is irrelevant: The rule in 'Coughlan' is 'Health Needs' , not 'Health Care Needs' It is the condition of the patient, which is the test, not the care (treatment) which can or cannot be provided which forms the basis of the judgement. .

The statement that 'the NHS funds the health component of continuing care and social services departments will be responsible for . . . the social care needs of the patient' is unlawful. If a patient has a health need or a disability then "the whole package of care must be paid for by the NHS" (see HSC2001/17 page 31(attached)) Mr. Justice Hidden ruled that under section 21 Social Services could not be responsible for ANY nursing. The Court of Appeal decided in 'orbita dicta' that social services could provide nursing only 'ancillary and incidental' to the accommodation. Thus some people who choose to live in a residential home may have minor nursing needs which can be provided by social services or, more udually in practice, by the NHS 'district nurse'. There are probably a few such people who could be placed in the lower band of registered nursing care. Everybody placed in the two upper bands are legally entitled to 100% NHS funding.

para. 4.2.1 This criterion is again totally unlawful: All patients with 'health needs' or 'disabilities' are entitled to 100% NHS funding of ALL their care - which includes all so-called 'social care' This care must be provided free 'at the point of delivery'

In Lord Woolf's words "the fact that a patient is being treated in one location rather than another will not affect their health care needs" It is thus unlawful for the NHS to avoid paying by placing patients in residential, rather than nursing homes.

It is clear from the forgoing that the whole criteria document of June 2003 is unlawful and should be withdrawn immediately.

I also note that in your document 'Arrangements for Reviewing Decisions on Eligibility . . . etc.' is also fatally flawed legally. In particular, it is stated under 'Stage 5 - The Review Process' That a review panel should not be convened where a Service User (their family or carers) wish to challenge: the content rather than the application of the Eligibility criteria. This is completely unacceptable and unless the current criteria is rewritten to render it lawful then patients etc. will have no choice but to reject it and immediately file a complaint with the Health Service Ombudsman.

Yours Sincerely. R. S. squires.