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Scandal of the Old and Sick Forced to Sell Up to Pay for Care ... Needlessly

Posted on: Monday, 3 April 2006, 09:01 CDT

By Claire Davies

Thousands of families across the country are being forced to sell their homes to pay for long-term care of a sick relative - care that should, legally, have been paid for by the NHS. Here, lawyer Claire Davis takes a closer look at the injustice in the current system

HEALTHCARE in the UK by the NHS is, by law, free and financed out of tax money, yet many of our country's most vulnerable people are forced into selling their homes to pay for long-term care in a nursing home. Why? Well quite simply because the current NHS criteria for assessing whether patients are entitled to free care is flawed.

For more than a decade the system for funding long-term care has been in disarray - in fact, in that time there have been four special reports all of which have been critical of the current system.

It is not soon enough that Panorama has again raised the issue, uncovering thousands of people in care homes with long-term illnesses who have unlawfully had their homes sold and most of their savings used to pay for their care.

As it stands the NHS has a set of guidelines to assess who is eligible for free care. These guidelines should respect a key legal test case, the Coughlan judgment of 1999 in the Court of Appeal.

This case involved a paralysed woman called Pamela Coughlan who challenged her local health authority as she faced the prospect of responsibility for her care being transferred from the NHS to the local authority.

She won her case and the judgment set out a test for all future cases.

The Coughlan judgment determined that if the patient's need for medical care was secondary to their need for accommodation in a care home then their care could be the responsibility of the local council and means-tested. But if the patient's needs are primarily of health then the NHS should pay for all care.

Locally, the NHS publishes 'eligibility criteria' setting out, in each area, who is and who is not eligible for free care, although there is concern that most, if not all, of those currently in operation are unlawful and not Coughlan-compliant.

Most people should qualify but are being told that they are not eligible as their care needs are social and, as such, something which they must pay for.

The programme interviewed a number of people who had been turned down for funding despite having care needs similar to or greater than that of Pamela Coughlan.

Since this original case, there has been another test of the same kind, the Grogan case, which des- cribed the NHS criteria as 'fatally flawed' and an ombudsman in 2004 deemed the guidance as 'unhelpful' and 'unclear'.

I know of several cases where the law is being wrongfully applied and I am in the process of reviews and appeals for those clients or their estates.

From the outset it is made apparent that this is not a straightforward route for those involved.

I ask those that think they've got a claim to come in for guidance before they start pursuing anything to make sure they have all the relevant information and records.

I can then assess the strength of the case and provide assistance in drafting any arguments.

The final procedure is to appeal to the NHS ombudsman or through the court - but this can take years, and in the meantime, the elderly person being cared for often has sold their house to fund their own care.

No one should move into a nursing home without checking that they qualify, as many people are not told that they might be eligible for funding or the process for reviewing the decision.

With care fees costing anything between pounds 450-pounds 1,500 each week, it is vital that residents, their families and their carers get advice.

Following the shake-up by the BBC it is hoped now that the Government will address the shortcomings in the present system, the most serious being the absence of a unified set of criteria that clarify what constitutes health care and social care.

Until we have one national set of criteria, the highly controversial issue of which patients qualify for fully-funded NHS care, and which have to contribute some or all of the costs of care, will remain. Even then, there is no guarantee that a single set of criteria would make the situation any clearer. But one thing is for sure, it can't get any worse.

The current system is confusing for all involved and it is very difficult for carers and patients to know where they stand. There is clearly a need for a widescale review of criteria used by the health authorities across Wales.

As all the criteria draw on the guidance issued by the Department of Health it is likely that there are failings across the country where thousands of old and ill people have been refused care.

The Government has indicated that it will undertake a review in spring and we will wait with bated breath its outcome.

Claire Davis is a private client partner at Cwmbran-based Rubin Lewis O'Brien, a member of national association, Solicitors for the Elderly (SFE), that specialises in legal services for older people and their carers. The firm employs 60 staff from its offices in Cwmbran and Cardiff and offers a complete range of legal services. To contact Ms Davis or a member of her team please call Rubin Lewis O'Brien on 01633 867000.

Source: Western Mail

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