With free healthcare, but means-tested social care, people in England and Wales are getting a raw deal

Up and down the country, dinner party conversation in many homes has changed from quiet satisfaction over the increase in house prices to outright concern over whether the property will have to be sold to pay for care.

A rapidly ageing population and the soaring cost of home care fees is a serious worry to many elderly people. A recent Panorama programme highlighted the problems faced by families when one of their loved ones is forced to go into a nursing home and the confusion that exists over the responsibility for funding continued care.

While healthcare provided under the NHS is free, social care is the responsibility of the local authority and is means tested. If the person requiring care has assets in excess of £21,000, they will be responsible for paying for all their social care. The end result is that anyone owning a property, but very little else, will almost certainly be forced to sell their home. When people have saved hard over many years to buy a house, this seems grossly unfair.

In the landmark Coughlan case in 1999, the Court of Appeal ruled that, if nursing care services were “incidental or ancillary” to the provision of accommodation, then this would be classed as social care and must be provided by the local authority. However, where the primary need is healthcare, the NHS is responsible for providing this service.

Following the decision, the Department of Health issued guidelines requiring health authorities to review their criteria to ensure compliance. The result is a mess with no national criteria, only Department of Health guidelines that must be interpreted by 28 UK strategic health authorities (SHAs).

The Government’s initial response was to introduce a system of registered nurse care contribution (RNCC). This comprised three levels of funding based on the stability, predictability, risk and complexity of the person’s condition, with the highest band relating to people with significant nursing needs. The aim was to cover the nursing element of a person’s care. However, this has still not addressed the highly artificial distinction between social care and nursing care, the latter of which is still free on the NHS.

Currently, the family of a person denied free NHS care, but who is in receipt of the high band of the RNCC, must go through a complicated and time-consuming process. This involves review panels and, ultimately, the Healthcare Ombudsman, to challenge the SHA’s decision.

Sometimes it can take years for the review process to be completed. It is nothing short of scandalous that families should have to go through this at such a time.

The Government has indicated that it will be introducing new draft national criteria shortly. Under the present system, a health service panel assesses a person’s need, via a points system, for NHS funding to support continuing care.

According to some reports, under the new system people will have to qualify for at least five areas of need, including communication, mobility, nutrition, breathing and medication. Individuals must score at least 60 points out of 100 in each area and the full 100 points in at least two. If such a system is introduced, it is likely that thousands of people whose care is currently paid for by the NHS will be forced to undergo means tests.

The reality is that the NHS cannot afford to pay for long-term care and a new system has to be found to fund both the NHS and social care. The system in England and Wales is in sharp contrast to that adopted in Scotland, where there is no means test required for long-term care funding. Perhaps we should all emigrate to Scotland?