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New Act seeks to ease restrictions on free personal care at home

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The new Personal Care at Home Act 2010 seeks to remove current restrictions on the provision of free personal care provided for people living at home.

"It is estimated 111,000 people are paying for home care, with an unknown number relying on unpaid family and friends for help" Paul Ashurst, Solicitor

It is being described as a first step towards establishing a new National Care Service.

Estimates suggest the Act will help around 400,000 people with their social care needs. Those with the greatest need – around 280,000 – will receive free personal care in their homes; while around 130,000 individuals who enter the care system each year will have access to six weeks of support to help reduce their need for care.

The cost is estimated £670m a year, with £420m coming from the Department of Health, while local authorities are expected to find the rest through efficiency savings.

Impact on those injured in accidents?

It is estimated 111,000 people are paying for home care, with an unknown number relying on unpaid family and friends for help.

So at the very time they most need social care, people who have been injured are least able to afford it.

Even though the cost of care can be recovered as part of any accident related compensation claim, individuals still have to find ways to fund the cost while the liability of those who caused the accident is determined and / or the insurance company continues to refuse to make interim payments.

The situation is even worse when there is no one to sue or there is contributory negligence on the part of the claimant, because the cost will not be recovered or the sum recovered will be less than 100%. So the prospect of free social care provided by the local authority, even for an initial period, would help accident victims and is to be welcomed.

The sting in the tail

However, celebration at the passing of the Act may be short-lived, because it might not be implemented until April 2011.

This means the implementation process will be dealt with by the next parliament, and given expected expenditure cuts, the Act and any proposed National Care Service could be lost in a financial black hole that politicians refuse to discuss.

In the meantime, claimants have to rely on the present system of seeking assistance from either the NHS or their local authority.

Services provided by the NHS must be free unless there is an express statutory power to charge for a particular service, but local authorities are entitled to charge – and most do – for community services, including social care.

The demarcation line between the responsibilities of the NHS (medical care) and local authority (social care) is frequently difficult to determine and can be subject to a postcode lottery.

How do you get the local authority Involved?

Section 47 of the National Health Service and Community Care Services Act 1990 imposes a duty on local authorities to carry out an assessment of a person's need for community care services.

The duty arises where it appears to the local authority that a person may be in need. In such cases, an assessment of the person's community needs is mandatory. The assessment may lead a local authority to decide that the claimant requires welfare services. These not confined to care, and include the provision of equipment.

The assessment is an opportunity to tell social services what will make your everyday life easier. For example, you might need help with cleaning or would find it useful if you had a bath rail fitted. You may be entitled to financial help to maintain your own home.

The right to an assessment is not linked to your income or capital, but after the assessment your local council will look at your income and capital to decide which care services – if any – you may be charged for.

Direct payments

If following the assessment the Local Authority deemed that you are eligible for social services help in meeting all or some of your social care needs then instead of accepting their support services you can opt for direct payments. This allows Individuals to arrange and pay for their own care and support services using the payments from the Local Authority to pay (if the need is fully funded or top what they have to pay if only eligible for partial assistance. The amount you receive will depend on the assessment your council makes of your needs and the payments are made directly into your bank, building society, Post Office or National Savings account.

This is very useful for tool for accident victims whose claims for compensation are reduced because of contributory negligence. Solicitors experienced in dealing with claims can ensure that the complex interrelationship between compensation and the welfare benefits system ensure any settlement is structured to achieve the best results.

Help from us

We have extensive experience of dealing with accident victims and can guide you through the legal and benefits minefields.

Please contact us as soon as possible so that an early assessment can be made and you don't miss out.

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All documents should be read and used in accordance with the terms and conditions. This document is for your general information only and is not a detailed statement of the law. It is provided to you free of charge and should not be used as a substitute for specific legal advice. If you require specific legal advice please contact our helpline on 03700 868 686.

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