Solicitors for the Elderly conference 2002

The Solicitors for the Elderly annual conference has become an earmarked event for many solicitors working with the elderly. Caroline Poynton reports on this year’s programme, the issues discussed, the speakers and their subjects and what lessons delegates took away for the coming year.

This year’s conference, held at the Savoy on 4 October, provided another opportunity for lawyers to discuss the essential issues effecting elderly clients including long-term care, asset protection, carers’ rights, welfare benefits, potential abuse and determination of capacity in elderly clients. Elderly client law remains a area of huge complexity and, with regular updates to legislation and case law, it is evident that solicitors in the field need this kind of conference for the latest information as well as for the opportunity to meet and discuss important issues with others in the field.

The event was well structured to address the many issues while retaining the interest and interaction of the audience. The morning followed a traditional conference format with three presentations, including a charity panel, split by refreshments and lunch. The afternoon was split into a selection of workshops providing an opportunity for delegates to interact in smaller groups as well as focus on the issues most directly relevant to them.

Anne Edis introduced the day’s proceedings as chair of Solicitors for the Elderly (SFE). The organisation has a growing reputation and the past year, has seen an increase in membership and in enquiries from the public and charitable contacts. In particular, she was pleased to welcome two new patrons: Gordon Ashton, Deputy Master of the Court of Protection and Denzil Lush, the Master of the Court of Protection.

Introductions over, the presentations began with Jennifer Margrave who set up her own firm seven years ago to specialise in advising the elderly in fields such as care in the community and NHS funding. Her presentation focused on carers: what are carers’ rights to services and what help can they expect to receive?

With close to six million carers in the UK and 855,000 providing care for more than 50 hours a week, solicitors should know exactly what support services are available to this often beleaguered group.

The presentation gave helpful and clear clarification of a carer’s legal and financial rights. Invalid care allowance of £42.45 a week is available for those caring for someone for more than 35 hours a week or a carer who is looking after someone who is getting or waiting to hear about benefits such as attendance allowance, DLA or industrial injuries disablement benefit or war pensions. National Insurance Contributions, called Home Responsibilities Protection, may be awarded to those receiving invalid care allowance, so that pension entitlements are protected.

On an additional note, Mrs Margrave advised solicitors to check with clients as to their professions and ascertain whether it would be possible to apply to any benevolent fund for assistance or support. For example, the BBC has a good support team that makes visits and alerts others if they feel a crisis point has been reached.

From personal experience, Mrs Margrave noted that carers, when interviewed, often express a need for confidence in the services provided; freedom to have a life of their own, but, most importantly, respite care. S.4 of the Disabled Persons (services, consultation and representation) Act 1986, explicitly requires a local authority to assess a disabled person when requested by a carer and section 8 creates an obligation on the local authority to have regard to the carer’s ability to continue to care when determining the needs of the disabled person. The S47 National Health Service and Community Care Act 1990 (“the 1990 Act”) makes no direct reference to carers but permits carers to request an assessment of need for those for whom they care.

It is the introduction of the Carers (Recognition and Services) Act 1995 (“1995 Act”), which has, for the first time, created a carers assessment but linked to the assessment of the disabled person under section 47 of the 1990 Act. The 1995 Act provides that the carer’s needs and ability to provide and to continue to provide care should be assessed before determining what care to provide for the elderly person. The local authority should then take into account the result of the carer’s assessment when making its decision as to the services for the elderly person.

As Mrs Margrave mentioned, there is a catch 22 in this scenario. The carer asks for an assessment of the person cared for; once that assessment has been arranged, they can then ask for their needs to be taken into account. However, there may be a conflict between the person cared for and the carer, because the older person cannot perceive of a need to be ‘assessed’ either for reasons of finance or seeming independence. Consequently, it will often be down to the solicitor to ensure that carers push for their rights, even if it is just to obtain some respite care, however little that might be.

The 1995 Act does not go on to create a right for services although Hansard has guidance making it clear that respite care is one of the main provisions that should be available. However, Mrs Margrave is clearly concerned that there is far from sufficient support for carers and, apart from charities, there is little by way of services available for carers.

This conflict between the cared for and the carer, has led to the passing of the Carers and Disabled Children Act 2000 (“The 2000 Act”), which has enabled carers to have a carer’s assessment independent to a section 47 assessment.

The presentation continued with a look at the rights carers have over the medical treatment of their relatives. The Government Charter: Better Care, Higher Standards is the government’s charter for long-term care and is subtitled; A summary for users and carers. The government expects local authorities and health services to agree and publish local standards in six main areas including helping users and carers to find out about services and understanding and responding to the needs of users and carers. The local charters had to be available from June 2000 although Mrs Margrave had difficulties obtaining one and it states on the front that it is for limited circulation to professionals and organisations representing users and carers.

Overall, the presentation provided a useful and informative overview of the area. The problems that carers experience are obvious and it worrying that carers will probably experience problems even accessing information about their rights and available services.

The next presentation was led by Alan Robinson, a solicitor at Robinsons and Legal and Welfare Rights Training. I won’t fully detail the content of the lecture as you will find a detailed summary in his article on page 23. However, it was apparent that welfare benefits continue to prove a daunting and complex area ensuring plenty of questions from delegates at the end of the session. In particular, there was some confusion over charging for respite care and it appeared that charges would be determined by which Act you follow. If services were provided under the 1995 Act then the service user is to means tested, i.e the disabled person but if the service was provided under the 2000 Act, then the carer could be means tested. If, however, the care amounted to health respite, then the NHS will fund the cost of care.

The charity panel was an interesting and enlightening part of the day. The panel consisted of representatives from Action on Elder Abuse, the Alzheimer’s Society, Carers UK, Contact the Elderly and RUKBA. SFE has recently formed a link with RUKBA, a new charity for the organisation and one that might not be so well known in general. It is, however, one of the oldest charities and works to enable older people to live independent lives whether through financial support, equipment provision or in providing a friendly support system through volunteers who go out to visit the elderly.

The panel answered a whole variety of questions from an interested audience that was keen to hear stories from the frontline, so to speak. All the charities rely on donations and self-funding methods as government aid has virtually disappeared.

Gary Fitzgerald, chief executive at Action on Elder Abuse mentioned some very disturbing cases and highlighted a prevalent problem that the charity attempts to deal with. Elderly abuse is not uncommon and is often committed by family members. A particular case involved an elderly lady who was found to have cuts that could only have been inflicted by razor blades. A family member was suspected but no case could be brought as the evidence could not be directed at any particular person and the family stuck together. The difficulties in prosecution as well as the shame and reluctance that many older people might feel in telling someone they’re suffering abuse, either because they have always led such independent lives and are reluctant to have to ask for help or because it is being perpetrated by a loved family member, reveals just how serious an issue this is. Again, it may often be the solicitor who notices a problem and all should be aware of possible abuse from family, carers or care home.

Taren Pamneja, a policy officer with The Altzherimer’s Society, mentioned how the charity has helped solicitors dealing with dementia issues. Dementia is a complex illness and its variability can mean that capacity and decision-making abilities fluctuate from day to day. Solicitors have an important role in both enabling clients to make independent decisions as well as protecting those who may be vulnerable to financial abuse. Charities such as the Altzheimer’s Society provide an essential bridge to understanding how such illnesses might effect the abilities of the client.

Andrea Martin, head of advice and information at Carers UK, described some of the most common calls they receive on their helpline. Supporting some of the comments made by Jennifer Margrave in the earlier presentation, it is clear that many carers have real problems just knowing what services are available both for themselves and those they care for. Welfare benefits also frequently raises its head on the helpline, which is perhaps of little surprise considering the complexity of the area.

Trevor Lyttleton, solicitor and founder and chairman of Contact the Elderly, has found that powers of attorney are a real problem as they are frequently abused. Interestingly, he pointed out that solicitors are sometimes the perpetrators of this abuse. This aspect led to some debate as to whether charities should refer clients to solicitors. Mr. Lyttleton is wary and the charity has a restricted number of solicitors on its books for fear of referring someone to a practice that will prove abusive.

The charity panel was an interesting and lively prelude to lunch with a lot of questions from the floor that could easily have continued for another half hour or so.

The afternoon split into three workshops: Problems in assessing mental capacity by Dr Amrit Singh and Elizabeth Holdsworth; Preserving assets from care fees, the future after Beeson by Jonathan Wilkey and Improving working practice with the Public Guardianship Office by Tony Donnelly.

Again, I will not go into great detail on Dr Singh’s lecture as the contents of the workshop are more fully detailed in the article on page 14. However, this workshop provided a real insight into a field in which there is frequently little co-operation between doctors and lawyers. Delegates were clearly impressed by the clarification given to the subject by Dr Singh and several were keen to contribute examples of difficulties they have encountered in determining capacity. One particular delegate expressed concern at the problems she had even getting a response from a doctor when she had hoped to secure advice and help. Lawyers are concerned that a determination of capacity might come down to the conviction of a lawyer who by no means is qualified to make a judgement based on so many complex issues. On the other hand, doctors appear concerned to give opinions on legal capacity, which may be an area beyond their remit to judge.

The message was clear: the BMA and Law Society must collaberate further to bring together these two sides and improve the process for both doctors and lawyers. Elizabeth Holdsworth raised the point that it is about joint education and only when the medical and legal professions better understand each other’s roles can the client be best assured of adequate protection and/or freedom to make their own decisions.

Of course, my attendance at the capacity workshop means that I cannot fully report on the other two workshops although, in speaking to delegates at the end of the conference. Tony Donnolly was well received and very brave to speak about the well known problems at the PGO. Readers will be pleased to know that the call centres, which have proved to be a disaster, are to be disbanded and restructuring of both files and teams is to occur over the next few months. Staff have been working overtime to resolve the backlog of work. There are also plans underway to introduce electronic file management next year.

Jonathan Wilkey, a solicitor, lecturer and training consultant at Gwyn James Solicitors provided a particularly useful and indepth set of papers. Starting with the details of the Beeson case, his notes detail the means-test for residential care, the notional capital rule and the guidance that Local Authorities must follow to ascertain whether a resident’s main motive in disposing of a capital asset has been to avoid a charge for accommodation. They also covers asset protection and long-term care, an area frowned upon by the courts, but growing in popularity in all sectors of society during the past few years.

The conference ended at the very reasonable time of 4pm and had managed to include a selection of presentations and workshops that were insightful and far-reaching. The comprehensive notes will also provide a useful reference tool for the future.

For further information, please contact the editor, Caroline Poynton at: cpoynton@ark-group.com