Sick & elderly lose out in homes for care scandal - burstow

Over 360,000 people may have been forced to sell their homes unnecessarily to pay for long-term health care since Labour came to power, Liberal Democrat Spokesman for Older People Paul Burstow MP said today.

Releasing a new report, "Who Cares, Who Pays?", Paul Burstow MP revealed that the Government has done little to ensure that Health Authorities meet their legal obligations towards people needing care,and that inadequate Government guidance has led to improper charging for care.

Paul Burstow MP said:

"The Government is letting down older people who need long term healthcare. The courts have set out a clear judgement on when care is free and when it is means-tested. Government rules on who should pay for care fail to comply with law and have led to local NHS rules, which discriminate against the elderly.

"It is a scandal that under Labour, over 360,000 people may have been forced to sell their homes to fund care which should have been provided free by the NHS.

"Many Health Authorities have done nothing to update their rules which decide who gets free care and who has to pay for care provided by social services. Too many people are being shunted into means-tested care as a result.

"Two years ago 9 out of 10 Health Authorities had rules on paying for care that broke the law. Since then, my research has found that little has changed.

"We need clearer rules on who should get free care from their Health Authority and who should have their case referred to social services. Local authorities must get tough and seek judicial reviews where they think that Health Authorities have given their taxpayers a raw deal."

ENDS

Notes to Editors.

Guide to 'Who Cares, Who Pays' Report

ISSUES

· The fundamental issue is the wording of R v ex parte Coughlan and the scope of NHS liability (as opposed to social services liability) for continuing care, regardless of the form of words used in local eligibility criteria.

· Ministers and Health Authorities continue to fudge the wording to obscure total liability for NHS care in nursing homes where a person has 'health needs' (contrast with Registered Nurse Contribution Scheme which only contributes a proportion of nursing costs according to gradations of need) because it is in their interest do so. It means that there have been thousands of home and other asset sales forced through unlawfully by Social Services Departments for which public authorities are legally and financially liable.

· As solicitor Nicola MacIntosh points out, the legal question of whether someone is entitled to free NHS case is really very simple but rarely applied - Do they have identifiable health needs? If so, the presumption in law is that the NHS must pay for their care. By definition, most Nursing Home Residents have 'health needs'; this is unquestionably the case for those with Alzhiemers, Dementia, Parkinsons, GBS, and other degenerative conditions that are prevalent amongst the oldest elderly. It is also likely to be the case for many who receive home help via social services.

· The plain wording used by Lord Woolf makes it very clear what duties are intended by the NHS Acts in contrast to the role of social services.

THE NUMBERS

· Professor Hamnett's London University 1995 study found that 40,000 homes were sold to pay for care in 1995.

· A survey of local authorities by Paul Burstow MP showed that 70,000 homes had been sold to pay for care in 2001.

· Using a stable increment of 5,000 homes sold per year to pay for care, the following estimate can be made:

Year No. of homes sold

1995 40,000

1996 45,000

1997 50,000

1998 55.000

1999 60,000

2000 65,000

2001 70,000

2002 75,000 (10 months - 62,500)

CRITERIA

· Recently issued criteria are not necessarily any more Coughlan compliant and have one overwhelming element in common with the old criteria, which is that they attempt to limit liability for 'health needs' to the most serious conditions. The message of the 'Who Cares' Report is that for effective compliance, criteria must follow the wording of the judgment itself, rather than using substituting other words in an attempt to limit what may be understood as 'health needs' and thereby evade legal responsibility.

CASE STUDIES

The following may be of interest:

Case Study 1

Colin Mercer in Liverpool has a total permanent disability, cannot even lift a spoon to his mouth to eat) but 'with a helper' can just about do a little light housework, prepare his own meals and collect his own pension. He was referred to Social Services for means testing under Section 21 of the 1948 Act. Despite a direct approach at the highest level to the Chairman, Cheshire and Merseyside SHA and North Mersey P.C.T, is flatly refusing to obey the law. A formal complaint has been lodged.

The report was made in June, 2001 without either Colin or his brother John, (Power of Attorney), being informed. A non-medical junior social worker ruled secretly that Colin was 'self-funding', a decision that at £25,000 a year for ten years could involve £250,000. Under the Human Rights Act, this is a major quasi-judicial decision to be decided by 'due process' as the citizen has ''suffered an interference with her means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in statute" Salesi v. Italy (1993) 26 EHRR 187 para 19'

Case Study 2

Mrs Wooley (the details are in the Report under Mrs C) - Croydon PCT has paid £25,000 compensation for the home unlawfully sold due to the representations of activists and the intervention of the local MP

Both the clients and their PoAs would be willing to be interviewed

These are only the tip of the iceberg; there are many more similar cases around the country as means-testing is standard practice. Those who actually undertake the assessments are often totally unaware of what the law is - the criteria need to make the funding-line between health and social care more explicit; the sort of 'multi-disciplinary' assessments envisaged by the Guidance rarely take place - in practice much more 'rough and ready' procedures are undertaken usually by junior nurses or social workers.

GUIDANCE

The report comments extensively on DoH Guidance, and how the various DoH Circulars, whilst referring to and quoting the Coughlan judgment, have attempted to fudge the main distinction between those with health needs and the smaller number of cases which can be lawfully passed to social services for means testing for care services which are ancillary to the provision of accommodation (eg helping somebody down the stairs.)

The parts of the case often quoted in the circulars concerning 'intensity' of the persons nursing care needs are obiter dicta and do not form the main part of the judgment.

So, for example, DoH have published a book for the general public called 'NHS Funded Care in Nursing Homes. What it means for you'. The definition of Continuing NHS Care is framed in terms of the advice give to health authorities "your health authority will take account of the nature, complexity, unpredictability or intensity of your medical, nursing or clinical needs" - this is quite likely to be unlawful; it departs even from circular HSC 2001/015: LAC (2001)18 which describes continuing care as 'a general term that describes the care which people need over an extended period of time, as the result of disability, accident or illness to address both physical and mental health needs.'

COMMENTARY

The best additional commentary is that is from an edited Transcript of an interview with Nicola Macinstosh (MacIntosh Duncan), Mrs Coughlan's solicitor taken from BBC Radio 4's 'Money Box'.

BBC Presenter Lawyer Nicola Macintosh told us that this kind of action against the individuals health authority has led to substantial out of court settlements of between ten and twenty thousand pounds.

Nicola Macintosh 'It is the law that if your primary care needs are health needs, and that is why you are in a nursing home, then the NHS should be paying for your care.

Question. 'So what should organisations that are involved or individuals do? How can they take advantage of this case? It is confusing'

Nicola Macintosh 'Well, for example if they are in a nursing home at the moment they might want to ask the Health Authority and the local authority, that's Social Services, to undertake a reassessment of what they need, to look at that assessment very carefully and if it looks to them as if their primary need is the health care and that is why they are in the nursing home, then they should take it up with the Health Authority and ask the Health Authority to pay. If you have got somebody for example in hospital and the professionals, perhaps the consultant, is saying we think you need to go into a Nursing Home you should start asking questions at a very early stage. Will the NHS be paying for this? If not, why not? Because most of the criteria which Health authorities apply when they decide who pays for their care and who doesn't pay for their care are unlawful. They are not legal in the light of the Coughlan judgement.

Question 'Are you fighting other legal cases on this issue?'

Nicola Macintosh. 'Yes yes. I have got a number of cases coming out of the Coughlan case. Some cases involve challenging health authorities criteria for who is entitled to free health care and who isn't, and that sounds quite odd in view of the fact that everybody thinks we have a free NHS. But of course we do according to the law, its just that nobody is using the law in the right way. Most of the individual cases are settling, so I write to the health Authority and I list the persons needs and I say they meet the criteria in Coughlan. This person should be provided with free NHS care within their nursing home. and they say yes you're right because what they don't want is a challenge to their criteria which will affect thousands of people within their local area'