This piece first appeared in Saga Magazine in June 2006
The text here may not be identical to the published text

 

Battle lines drawn on care costs

Court and Government changes

A High Court judge has found that guidance used to decide if someone in a care home should have their costs paid fully by the NHS is "fatally flawed". The case was brought by Maureen Grogan, 65, who was discharged into a nursing home where she remains critically ill. The NHS had refused to pay for her care. But in a lengthy judgement Mr Justice Charles criticised the way the guidance was written and ordered the Bexley NHS Care trust to reconsider its decision.

The Grogan case is just the latest example of the confusion (a word that appears nine times in the judgement) which surrounds the question of whether someone in a care home who needs nursing care should be fully funded by the NHS or not.

The rule is that if your primary need is for health care then the NHS should pay the whole cost of your fees in the care home. But it is very difficult to define if what you need is primarily health care or what is called ‘social care’. If you need to be helped with washing or feeding that is often seen as social care. But of course if it was not done you would soon need health care. Because so much money hangs on the distinction Primary Care Trusts, such as Bexley, frequently decide that people discharged from hospital do not have a ‘primary need’ for health care. That decision passes the buck to the local council which is then responsible for arranging and paying for their care. The council can require the patient to pay some or all of the costs under a complex means test that assesses both their income and their capital.

Even in these cases the NHS does pay for some of the nursing costs. In England people are put in one of three bands. The low band is for those who need "minimal registered nurse input". The medium band is for people who have multiple care needs and may need attention from a nurse at any time and in any case at least once a day. The high band is for those with complex needs and an unstable condition who require "frequent intervention…by a registered nurse throughout a 24-hour period".

The contribution from the NHS towards nursing care is £40 for the low band, £83 for the medium band and £133 for the high band. These amounts are paid to people in a home in England where nursing care is provided whether they pay for themselves or have their fees wholly or partly paid by the local council.

Many advisers feel that if you qualify for the high band your needs are clearly medical and the NHS should be paying the whole of your costs. That conclusion has been supported by the Health Service Ombudsman. And although Mr Justice Charles did not endorse that view directly, he made it clear that guidance about what constituted a primary health care need and the three bands of nursing care "promote confusion".

The Grogan decision dealt with the guidance issued by the South East London Strategic Health Authority, which is just one of the 28 such authorities in England which issues guidance to the Primary Care Trusts. Campaigners say many others are no better. The Department of Health is due to issue a consultation paper about introducing national guidelines. That may help anyone who gets the high band of nursing care payment or was discharged from a hospital straight into a care home and who believes their primary need is for health care rather than social care, should apply to their local Primary Care Trust and say that they have a need for ‘continuing NHS health care’ and that therefore the NHS should pay. If the application is refused ask for an independent review and if that fails make a formal complaint. Finally, refer your case to the Ombudsman on grounds of maladministration. Relatives should keep their eye on people in homes and if their condition worsens always consider if they have passed the point when the NHS should be paying.

Meanwhile take heart from one reader whose father has Alzheimer’s Disease and requires nursing care in a home. She wrote to me last month "We had been paying £1600 per month since April last year. But on reading your article in July 2005 we have finally after a long battle received full funding for my father for continuing healthcare. If it wasn’t for your article we would not have known about these circumstances as they are not highlighted".

Her experience shows that the rules can be made to work – but it does require a struggle.

Couples
After a long campaign by Age Concern the Government has finally announced that old-fashioned rules requiring husbands and wives to be responsible for each others care will be repealed by April 2007. The law dates back to 1948 and it used by some local councils to demand payment from the healthy spouse if their partner goes into a care home. This rule is no applied consistently – some councils do not ask a spouse to contribute at all. But if it is then a spouse with savings of more than £21,000 can be asked to pay all the fees. Before the law changes next year the Department of Health has issued guidance to local authorities which "strongly encourages" them "to exercise their discretion in favour of not applying the liable relatives rule". And it has given them £4 million per year to compensate for the extra costs. That should mean a husband or wife will no longer be asked to contribute to the costs of the spouse who is in care. Anyone already paying these contributions should be told they can stop doing so. If your local council asks you for a contribution for 2006/07 you should refuse to pay and refer them to the circular from the Department of Health LASSL (2005)6 Annex E. The council cannot enforce these payments without going to court and none should now do that.

Despite this change couples can still find problems over joint assets. If you have savings or investments in joint names you should split them in half into two separate accounts, one in each name. That way the local authority will only count the money owned separately by the person who is in the care home. For example, Joe and Sadie Smith have £48,000 in a joint savings account. Joe has to go into a care home and his local authority will ask Joe to pay his full fees until that money falls below £42,000 which is £21,000 each. But if Joe and Sadie had split the money into two separate accounts only Joe’s money will be assessed. He will be expected to pay all the fees until his money falls from £24,000 to £21,000, leaving Sadie with her own £24,000 and saving the couple £3000.

It is also sensible to make sure that your home is owned separately rather than jointly. You do that by changing the ownership from what is called joint tenants to tenants in common using form RX1 from the Land Registry. If you do that you can each leave your half of the home to your heirs and if the person who is not in care dies first it protects at least half the value of the home from the local council.

Other changes made in April this year mean that people in a care home should be allowed to keep £19.60 a week of their income for day to day expenses. That must not be taken off you to pay towards your fees. If it is, complain to the home manager and then the local social services department.

Remember too that if you pay all your own fees you will still be able to claim attendance allowance of up to £62.25 a week.

The information in this piece applies only England. The rules about nursing care and capital limits are different in Scotland, Wales, and Northern Ireland.

More Information:
You can download Guide to Fully Funded NHS Care from www.ageconcern.org.uk/care
Call
Age Concern on 0800 00 99 66 make sure you tell them which country you live in. Information about Scotland is at www.ageconcernscotland.org.uk
The Health Service Ombudsman tel:
0845 015 4033 or www.ombudsman.org.uk

June 2006 


All material on these pages is © Paul Lewis 2006