BRENT OLDER RESIDENTS URGED TO CLAIM MILLIONS IN COMPENSATION OVER FREE CARE FARCE - TEATHER

1.00.00pm UTC (GMT +0000) Wed 3rd Sep 2003

Liberal Democrat Brent East candidate Sarah Teather today called upon older people and their families to find out whether they are eligible for compensation following Brent Health Authority and PCT who forced individuals to illegally sell their homes to pay for care. The bill for compensation has run into hundreds of thousands of pounds, but officials have failed to reveal the extent of the claims. Nationally, the compensation bill is set to run to £300million.

The information was highlighted following Health Service Ombudsman reports to discover the extent of the illegalities of the continuing care policies of the local Health Authority and the criteria that forced the families of people on deaths door to have an unlawful charge placed on the family home.

Ms Teather and Liberal Democrat Spokesman on Older People Paul Burstow MP today encouraged people to come forward and seek advice if they fell they have been wrongly treated.

Sarah Teather said:

"Scores of elderly people and their families have been illegally forced to pay for long term health care that should have been free. Ministerial negligence has cost thousands of families' peace of mind, but now it will cost Brent taxpayers millions of pounds to put right. Despite numerous warnings and questions Ministers have failed to take this seriously.

"Up and down the borough the NHS has been using law-breaking rules to deny people their legal right to free health care. The rules were drawn up using badly drafted guidance approved by Health Ministers.

"I urge people to either contact me for more information and advice as to how to check whether they are entitles to compensation."

Liberal Democrat Spokesman on Older People who was visiting the New Testament Community Project at 2pm at 179 Willesden High Road today said:

"The only fair way Government can close the funding gap and control costs is to fully implement the Royal Commission on Long Term Care. It's time Ministers accepted that all personal and nursing care should be free on the basis of need, not means."

ENDS

Notes to editors

Questions and Answers on Continuing Care

Why is Coughlan a landmark case?

Long term care has long been a game of 'pass the parcel' between the NHS and social services. Coughlan is the only legal judgement that provides a clear statutory interpretation of the respective responsibilities of the NHS and social services in relation to long term care. It ruled that the guidance issued to Health Authorities for drawing up eligibility criteria was unlawful, that the setting of NHS funded care was irrelevant, and that specialist nursing could not be separated from wider care tasks. The key distinction is that Social Services are in the business of finding and providing accommodation; it is only where care services are ancillary to this statutory function that they can legally commission care services from the NHS or other providers and recover the cost by charging the client.

What are the implications for self-funders and those paying local authority charges?

The key implication is very simple; a large sector of those assessed as social services clients are legally entitled to free continuing care on the NHS. It is impossible to estimate just how many social services clients have been wrongly assessed; however it is clear that many individual Health Authorities' continuing care criteria are still not in line with Coughlan principles and that patients have therefore routinely been transferred to social services when they are entitled to have their care needs met by the NHS.

What does this mean for Health Authorities Eligibility Criteria?

Eligibility criteria are not illegal per se, but they must be in line with Coughlan principles, i.e. that the NHS takes continues to take responsibility where patients needs are 'beyond the scope of local authority services.' Tightly drawn criteria which attempt to limit entitlement to free continuing care to a narrow category of incapacitated patients (e.g. palliative care, persistent vegetative state, double incontinence etc). Health Authorities are potentially liable to refund social services charges unless they meet Coughlan principles, regardless of what their eligibility criteria say

Where has Government guidance gone wrong?

Government guidance has attempted to fudge the issue that the NHS has lion's share of responsibility in meeting the costs of long-term care for those with health needs and disabilities. By definition people with Alzheimer's and other degenerative conditions have 'heath needs'; likewise those whose disabilities are such that they are unable to dress, feed, commode or move themselves, are also likely to come within Coughlan principles. Where nursing and other care tasks cannot be separated Coughlan suggests that that the NHS should pay the lost. On these issues Government guidance is flawed.

Why the Government's 'Free Nursing Scheme' fails to meet NHS legal obligations?

As an alternative to the recommendations of the Royal Commission that all personal care should be free; the Government devised a contribution scheme for nursing services provided by a 'Registered Nurse.' The higher band of 'free' nursing care provides £110 a week per patient to nursing homes to help cover nursing care costs, however the threshold suggests a level and intensity of nursing care much narrower than the Coughlan definition. Coughlan implies that where patients' health needs and disabilities are beyond social services scope, all personal care costs must continue to be the responsibility of the NHS. Moreover Coughlan is not limited to registered nursing. In practical terms the scheme makes little impact in any event as the contribution is usually absorbed in higher nursing home fees.

Does it mean that selling homes to pay for care is illegal?

This of course depends on the individual case, however it is likely that where someone has to sell their home to meet their care costs they require a significant quantity of care. Part of applying Coughlan principles to individual cases is the 'quantity test' which looks at whether a client's care needs are 'merely incidental or ancillary to the provision of accommodation.' Where social services have placed legal charges on clients' homes they may be acting illegally; they must satisfy themselves that the NHS has no responsibility to provide fir their care.

Who should receive compensation?

The ombudsman has told health authorities to review their files and to see if they may have wrongly ordered others to pay for long term care.

Any individuals who require long-term care because they have an underlying medical condition which prevents them from looking after themselves will, in theory, be entitled to their money back.

• The Health Service Ombudsman Report, Feb 2003

• It is based on findings of four cases - there are many others the

Ombudsman is investigating:

• It criticises DoH as much as individual authorities for unclear guidance and failure to proactively implement the law (implies they have done so deliberately).

• It picks up the issue of long-tail liabilities ''the impact of the judgement reaches back: the judgement elucidated the law as it was'' (before 1999) it was contrary to the law for health authorities to operate criteria which were out of line with the NHS Acts ''health authorities still have a responsibility...to remedy injustice to patients flowing from any criteria now known to have been unlawful.'' (see quote on numbers)

• The key word used throughout is injustice to frail elderly people

Key Quotes from the Ombudsman Report

• A pattern is emerging from the complaints ...of NHS bodies struggling, and failing, to conform to the law and central guidance resulting in actual or potential injustice arising to frail elderly people.

• There are..fundamental problems with the system for deciding who does or does not get their care fully funded by the NHS... national policy has been far from simple to understand or apply for some time.

• The Department's guidance listed issues which health authorities had to consider when establishing eligibility criteria for what it called continuing NHS health care, i.e. 'a package of care arranged and funded solely by the NHS'. However, it included very little guidance on how exactly the listed issues should affect eligibility......The guidance does not suggest how, if at all, the single assessment process would contribute to assessment of eligibility for full NHS funding for care in a home.

• In a number of the complaints I have seen, any review of the criteria following the judgement seems to have been very limited, and criteria remained unchanged even when it is very hard to see that they were in line with the judgement. I would have expected the Department of Health, when reviewing the performance of health authorities, to have picked this up and taken action itself.

• There is a significant group of patients whose nursing care cannot be regarded as merely incidental or ancillary to the provision of accommodation which a local authority is under a duty to provide, or of a nature which a social services authority could be expected to provide. It appears to me that some health authorities were reluctant to accept their responsibilities with regard to such patients and were not being pressed by the Department of Health to do so.

• It is impossible for me to estimate how many people might be affected and the potential total cost of making such payments: but I recognise that significant numbers of people and sums of money are likely to be involved.