A recent Panorama programme ‘The NHS National Home Swindle’ highlighted the injustices of the current funding system for older people who may need nursing home care.

The programme showed that there are too many cases of the law being wrongfully applied and families not being told that they may be eligible for funding.

It is important to remember that if a person’s needs are primarily health related then the NHS should fund the cost of the care, irrespective of whether it is provided in a nursing home setting or not.

This follows a Court of Appeal judgement in 1999 involving Pamela Coughlan, a tetraplegic, who challenged her local authority in Exeter and won the case.

The range, type and level of services to be arranged and funded by the NHS to meet continuing health needs are decided locally.

However, the guidance following Coughlan sets out to define the responsibility of the health authority. The NHS is responsible for arranging and funding a range of services to meet the needs of people who require continuing physical or mental health care. This includes primary health care, assessment involving doctors and registered nurses, healthcare equipment, palliative health care and specialist transport services.

The NHS and Community Care Act 1990 does not define where the dividing line between health and social care lies. Many people qualify for funding but are told they will not qualify because their needs are ‘social care’ and as such, something they must pay for. In general terms social care includes personal care needed to assist with activities of daily living for example, bathing, dressing, toileting, feeding and mobility.

If a relative or friend has primarily health care needs and you feel they are wrongfully paying for care that should be paid for by the NHS then it would be advisable to contact the local Primary Care Trust and ask for a review of the care criteria in light of the recent Ombudsman’s report.

You can contact Marie Verney on 01635 521212 or by e-mail marie.verney@clmlaw.co.uk