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NHS Homes Swindle

26th March 2006

17032006_old_hands.jpgHealthcare in the UK by the NHS is, by law, free, financed out of general taxation. And yet thousands of people in care homes with long-term illnesses have had their homes and most of their savings used up to pay for their care.

The current arrangement has been criticised by both the Health Service Ombudsman and a House of Commons Select Committee as "impossible to administer" and "beset with complexities".

Background

In 1999 the Court of Appeal delivered judgement on the case of Pamela Coughlan, a former art teacher, who had been paralysed as the result of a car accident.

She was living in an NHS institution, Mardon House, in Devon which the health authority proposed to close; and she faced the prospect of responsibility for her care being transferred from the NHS to the local authority, for which she would have to pay.

The Coughlan judgement said that if the patient's need for medical or nursing care was "incidental to," or "ancillary to" their need for accommodation in a care home then their care could be the responsibility of the local council, and means-tested.

If it wasn't, and the patient's primary need was a health need, then all their care was the responsibility of the NHS, and had to be provided free. This became known as the "Coughlan test."

Despite this test case, many vulnerable people were still forced to pay for their care;

Following a series of complaints and subsequent investigations, in February 2003 the ombudsman published its review of long term care; The NHS Funding for Long Term Care Report reviewed the legal and policy framework from 1994 onwards and acknowledged that problems in the system were likely to be widespread.

The ombudsman's principle conclusions were that the Department of Health's guidance had not provided the secure foundation needed to enable a fair and transparent system of eligibility for funding for long term care to be operated across the country.

It stated that "The effect has been to cause injustice and hardship to some people."

The report recommended that Strategic Health Authorities (SHA) and Primary Care Trusts (PCT) should "review their criteria taking into account the Coughlan judgement and Department of Health guidance."

Moreover, the ombudsman declared any consequent financial injustice to patients should be remedied, "where the criteria, or the way they were applied, were not clearly appropriate or fair".

At the end of February 2003, in response to the ombudsman's report, the Department of Health issued a reply requiring all SHAs to investigate whether continuing care criteria in use since 1996 were consistent with the Coughlan judgment. If criteria were not consistent with the judgement, determine when this was identified and what action was taken.

The review process associated with this statement took longer than originally anticipated and by March 2004 the NHS had completed only 57% of outstanding investigations. Nevertheless, by this date, the NHS estimated the expected total pay out in partial and full restitution claims was likely to exceed £180m.

In December 2004, the ombudsman issued a follow-up review prompted by the receipt of a further 4,000 complaints since the publication of the first report.

Whilst recognising that progress had been made, the report stated that the procedural improvements were inadequate and "did not go far enough".

In April 2005, the Health Committee declared that "despite the considerable investment by government in recent years, we are no closer to a fair and transparent system that ensures security and dignity for people who need long term care, and which promotes their independence."

It concluded that health care has been redefined as social care without primary legislation or debate. 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.

The health committee identified numerous shortcomings in the present system whereby decisions in this area of healthcare "are often driven by budgetary concerns rather than patient need".

The responsibility for funding long term care has seemingly been shunted from the NHS to local authorities, individual patients and their families.

Panorama Programme

The panorama programme said that thousands of people have lost their homes unlawfully and have seen the capital in the family home used up for care.

The programme heard from viewers who believe that the NHS' own "criteria" for assessing whether patients are entitled to free care fail to respect the key legal test case, the Coughlan judgement of 1999 in the Court of Appeal. 

The programme presents a series of cases of people who are confident that they, or their relatives, pass the Coughlan test - yet they've been turned down for completely free care, "fully-funded NHS Continuing Care".

Most of their care is means-tested by the local council's social services department - and their home has had to be sold to pay for their care home fees, or a legal charge has been imposed on their house, having the same, albeit deferred, effect.

There has also now been another similar legal test; the Grogan case.

Matthew Grogan took his primary care trust (PCT) to court at the end of 2005 because his mother had been denied fully funded care; he had had to sell her house to pay for her nursing home fees.

In January he won his case, and the NHS' criteria being applied by his PCT were described as "fatally flawed".

The lawyer involved in the original Coughlan case, Nicola Mackintosh, says it is further proof many of the people who have been assessed by the NHS and denied free care on the basis of the NHS criteria, have lost their homes unlawfully. 

Luke Clements, Reader in Law at Cardiff University, in a paper 'Whatever Happened to Continuing Care' prepared for a House of Commons seminar, says there are "several thousand" who have been "compelled to pay for nursing care, that should have been provided free by the NHS."

Melanie Henwood, in research specially commissioned for Panorama "Self-funding of long-term care and potential for injustice", estimates the total figure of the number of people who have to sell their homes to pay for care is around 40,000. The Liberal Democrat MP Paul Burstow, estimates a total of 70,000 a year.

Health Minister Liam Byrne was interviewed for the programme. He denied that the government policy is unlawful.  He says the government is complying with the Coughlan test. In the Grogan case, "the process for applying the criteria was insufficiently clear" he told Panorama.

The government says that the framework for a new, national system for NHS continuing care will be introduced in April.

The Department of Health's Head of Delivery for Older People and Disability, Anne McDonald, says that the current guidance (from the Department to Strategic Health Authorities) is not unlawful and poor practice at local level is not a direct result of the guidance, but an indication that NHS staff need more support and training in making these important decisions.

The programme however presents evidence that little by little a new policy has been applied, under which the long-term sick largely pay for their own medical care, which seems at odds with the values of the NHS.

The policy has also failed to respect legal precedent, that of Coughlan, and as a result in many cases causes the unlawful sale of a family home at what is often a distressing time.

Comments

In a Panorama interview with Luke Clements, a reader in Law at Cardiff Law School, he said that for budgetary reasons the government were covertly ignoring the Coughlan judgement. They were able to do this because this was a vulnerable group of people who were unable to make their voice heard, or too exhausted to try. "It's not getting on the front of the Daily Mail enough to become a political priority" he said.

He concluded that the system whereby a group of vulnerable people were unlawfully having their homes put at risk was 'outrageous' and a 'profound injustice.'

David Hinchliffe, Chair, Commons Health Select Committee 1997-2005 said
'I think it's scandalous'.

 'I think the system is unfair.  I don’t think it in any way hits the principles, the basic principles of the NHS.' said Beverly Malone, General Secretary of the Royal College of Nursing.

The Association of Directors of Social Services (ADSS) president Julie Jones said in response to the programme that the ADSS would continue to work with the Department of Health in trying to improve the existing situation.

"Many older, sick and disabled people turn to us for help and support and we in local government have a responsibility to ensure their best interests are protected at a time when they are often at their most vulnerable."

The panorama programme reflected on the statement of Tony Blair at the Labour Party Conference, 1997; he said that he did not want children to be 'brought up in a country where the only way pensioners can get long-term care is by selling their home.'

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