News analysis Ombudsmans ruling on care costs shakes NHS

6 Mar 03
It was not the news that Health Secretary Alan Milburn already facing an embarrassing backbench revolt over foundation trusts and accusations of widespread waiting list fiddling by hospitals really wanted to hear. A landmark ruling by the new heal

07 March 2003

It was not the news that Health Secretary Alan Milburn – already facing an embarrassing backbench revolt over foundation trusts and accusations of widespread waiting list fiddling by hospitals – really wanted to hear.

A landmark ruling by the new health service ombudsman, Ann Abraham, has condemned health authorities for refusing to pay the care costs of dementia sufferers and other frail, elderly and disabled people.

Not only could this potentially cost health authorities many millions of pounds in compensation claims from aggrieved patients and relatives, it has also revived the fraught issue of who should be picking up the tab for continuing care.

Abraham's robustly worded report named four health authorities – Dorset, Wigan & Bolton, Berkshire and Birmingham – where patients have wrongly been made to pay for their care home costs. The ombudsman has also received a large number of other complaints, and is recommending that health authorities now review their practice.

'There is evidence that the Department of Health's guidance has been misinterpreted and misapplied by some health authorities and trusts, leading to hardship and injustice for some individuals,' she states in the report.

With around half a million people currently receiving – and frequently paying for – long-term care, older people's charities say that the ombudsman's February 20 ruling has raised the tip of a very large and expensive iceberg.

Age Concern director general Gordon Lishman believes thousands of vulnerable people may have been wrongly means-tested and charged up to £600 a week.

Health authorities are meant to apply 1996 DoH criteria and the 1999 Coughlan judgment when deciding who qualifies for free NHS care. This made clear that, where a patient's needs are primarily health ones, the health authority is responsible. In other cases, means-tested social services care applies. In practice though, this has led to much confusion.

The NHS Confederation says that its members 'will be taking the ombudsman's findings very seriously, and will be reviewing the decisions made'. However, retrospectively deciding who has been wrongly charged is likely to be a bureaucratic nightmare; particularly since the authorities named by the ombudsman have since been subsumed under new strategic health authorities. Birmingham SHA, for example, has indicated that it will not be 'practically possible' to track everyone down.

But, as Abraham herself says: 'There are also more fundamental problems with the system. The Department of Health's guidance and support has not provided the secure foundation needed to enable a fair and transparent system of eligibility for funding to be operated across the country.'

She calls for the DoH to review and clarify its guidance and be 'more proactive' about checking local practice: a recommendation that has had health minister Lord Hunt squirming in Radio 4 news studios.

Ministers' discomfort has been greeted with more than a degree of schadenfreude by Lord Sutherland, former chair of the Royal Commission on Long-Term Care. The government chose to reject the commission's proposal that personal long-term care services (for example, help with bathing and dressing for dementia and stroke victims) should be made free at the point of delivery, rather than being means-tested by local authorities as at present.

Sutherland tells Public Finance that: 'By insisting on maintaining the almost impossible distinction between nursing and personal care, it was always on the cards that the government would end up with this problem. They're just lucky it's the ombudsman, not the courts, ruling on the issue.'

Free personal care would have cost little more than £1bn to implement, he says, far less than the £2bn he estimates the DoH has already spent on its own 'inherently unworkable' solutions. 'And in Scotland, of course, they're already providing free personal care, and the system's working reasonably well.' Sutherland is convinced that the debate will have to be reopened, and soon.

There's another reason why all this is bad news for the health secretary. At a time when the government is hustling through legislation that will allow health authorities to fine social services for delaying hospital discharges, what's the betting that local authorities may, retrospectively, turn the tables and claim that the NHS has wrongfully referred long-stay patients to them? Hardly a formula for peace and harmony across the health and social care divide.


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