By Vivian White
Panorama reporter, The NHS National Homes Swindle
Healthcare in the UK by the NHS is, by law, free, financed out of general taxation.
The NHS National Homes Swindle
Sunday 5 March 2006
22:15 GMT, BBC One
Online at bbc.co.uk/panorama
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.
But as they were only in the care home in the first place because of their medical needs, how can that be?
And how can that be lawful? This programme says, quite simply, that in many cases it isn't - so thousands of people have lost their homes unlawfully - and besides suffering the misfortune of a long-term illness, have seen the capital in the family home used up for care, unjustly.
The programme hears 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.
This case was about a former art teacher, Pamela Coughlan, 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.
The case drew the line between the extent of the "social care" that local councils are permitted to provide, which is, by law, means-tested, and the "health care" which the NHS should provide, free, whatever the setting.
Denied free care
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.
But 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. That's the "Coughlan test."
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, so-called "fully-funded NHS Continuing Care".
So 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, with the same effect, but deferred.
And now there's been another legal test of the same territory: the Grogan case.
Matthew Grogan took his primary care trust (PCT) to court at the end of last year because his mother had been denied fully funded care; he'd already 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".
Nicola Mackintosh, the lawyer involved in the original Coughlan case, 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.
How many are wrongly sold? Independent health consultant Melanie Henwood, in research specially commissioned for Panorama, estimates a range of between 120 - 640 people each year - assuming that there is no general legal failing in the criteria - or if the criteria do not comply with Coughlan, a figure of thousands each year.
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 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, in his own survey, estimates a total of 70,000 a year.
The government - Health Minister Liam Byrne was interviewed for the programme - denies its policy is unlawful, and says it is complying with the Coughlan test.
The minister tells Panorama that, in the Grogan case, "the process for applying the criteria was insufficiently clear".
The government says that the framework for a new, national system for NHS continuing care will be introduced in April.
But Anne McDonald, the Department of Health's Head of Delivery for Older People and Disability, has written in a letter to Pamela Coughlan that "it is important to emphasize that the creation of a national framework for NHS Continuing Care does not constitute a change of policy or the legal position.
"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."
But the programme presents disturbing evidence that little by little a new policy has already arrived, under which the long-term sick largely pay for their own medical care, a policy which seems at odds with the values of the NHS.
The policy has also failed to respect legal precedent - and one which in many cases as a result causes the unlawful sale of a family home, at a most distressing time.