Today’s article is a response to the recent announcement that, after September 2012, most elderly people in care in England will no longer have proper financial redress for wrongly charged care fees.
I remember it vividly. Sitting at the bottom of the stairs just after Christmas 2007, I opened the letter. As I read it, I began to sob. They were hard and heavy tears. I had been fighting for this letter for so long and now it finally confirmed that the NHS had acted illegally in charging my mother for care.
It also confirmed that the NHS would be issuing a refund of care fees and providing ongoing funding to cover all her care needs. It had been a ghastly battle – and at that point I was also in the middle of the same battle for my father.
20 years earlier they had both been diagnosed with Parkinson’s disease. They both subsequently developed dementia and other serious health conditions, they both went into a care home on the same day in 2005, and they both died within a few weeks of each other at the end of 2009.
My battle with the NHS for both of them took over three and a half years and left me utterly exhausted. I eventually succeeded in forcing the NHS to pay back over £105,000 in care fees and provide fully-funded Continuing Care for my parents right up until they died.
NHS funding for full-time care is called NHS Continuing Healthcare and it covers 100% of the costs of being in a care home or receiving full-time care at home for people whose needs are primarily health needs.
I’m not talking here about the current crisis in social care, which is bad enough in itself. This is about NHS care – the healthcare that is available to all of us because we live in the UK. Except, it seems, if you’re old.
In the UK healthcare/nursing care is free at the point of use. It is not based on ability to pay, and yet elderly people in full-time care are routinely told the opposite: that even though they may have health needs, they have to pay for their care.
It is one of the biggest scandals in health service provision, accounting for billions in lost personal assets, and it has been going on for years. But the most horrifying thing of all is that it is not just a small hole in the care system; instead, it is a massive unfairness that seems to be actively perpetuated and supported by the State. Successive governments have done little to stop it..
I believe this maladministration has and will directly affect every family in the UK, and it will continue unless the voices raised in protest continue to grow in strength and volume.
Breaking the law as routine
The whole Continuing Care application, appeal and review process is controlled by the very people who hold the purse strings, and that simply cannot be right. In my parents’ case, and in the case of tens of thousands of other families, the NHS seems to break the rules as routine – as a way of making people fight for the care they’re legally entitled to and most probably in the hope that those families will simply give up and go away.
Generally speaking, in the UK, no matter how old you are, if you need health care or nursing care, you do not have to pay for it.
The National Health Service Act 1946 outlined this clearly, as did the 2006 National Health Services Act. This has not changed. Indeed, the coalition government was at pains to point out that the new Health and Social Care Act 2012 also preserves it.
The law states that the Secretary of State has a statutory duty to promote a comprehensive health service, and the services provided must be free of charge. If the essence of the law is not being followed – to promote and provide health services, the government and the Secretary of State are answerable.
Despite this, a complex web of financially-motivated Continuing Care assessments and eligibility criteria has been fabricated for elderly people who need full time care – and this has wrongly been in place for many years. This assessment framework does not override case law, and yet NHS ‘assessors’ and decision making panels seem to take on the role of judge and jury, when in fact the principle of healthcare free at the point of use has never changed.
Most of us have no reason to understand the ins and outs of the care funding system – until that need is thrust upon us by an elderly relative needing care. Most of us also assume we can trust the health and social care authorities to tell us the truth about paying for care. Sadly, what we often seem to be told is far from the truth. It means when an elderly person goes into a care home, families don’t realise that the first priority is NHS funding – not questions about their money, property and savings.
This ‘oversight’ of the part of the authorities means that hundreds of thousands of elderly people have been illegally railroaded into selling their homes and everything they own to pay for care that should have been provided by the NHS – just as it is for other people in the UK. It is age discrimination on a massive scale. The press, too, in articles about care fees, rarely mention NHS Continuing Care funding, which further perpetuates the myth that when you grow old you have to pay for care.
The landmark Coughlan case at the Court of Appeal in 1999 brought care fees sharply into focus when Pamela Coughlan, paralysed after a road accident, successfully argued that it was illegal to force her to pay for care.
Other Continuing Care cases, including that of Ross Bentley and also the Grogan case, have reinforced the NHS’s duty to provide care. However, the judgments in these cases seem to be continually ignored by Continuing Care assessors, and as a result, illegal care charges for elderly people continue.
If you or I turned up at our local GP surgery or A&E Dept and were asked the value of our savings and house before we even saw a doctor, there would be outrage. If we were put through a series of punitive health needs assessments that took weeks, often months, before being told that we’ve actually come to the wrong place and we need Social Services instead (because, of course, our needs are ‘just’ social needs), there would be the same outrage.
And yet this is effectively what happens to elderly people every day who need care for health needs. The rules – and the law – do not change just because we grow old and yet the reasons given to elderly people in order to deny them Continuing Care are shocking.
It is, quite simply, the theft of personal assets by the State.
The Parliamentary and Health Service Ombudsman, when previously reporting on these financial injustices after the Coughlan case, stated that the NHS was to actively seek out cases of injustice and make redress. Of course, few families whose relatives have been wrongly charged can report any such proactive action. It’s not in the NHS’s It’s not in their financial interests.
It is families who have had to be proactive in trying to make sense of their entitlements to care funding. Until now they have at least been able to make retrospective claims (even though long and drawn out) on behalf of an elderly relative, to get back the tens of thousands of pounds wrongly paid. Retrospective claims can also be made by a person’s family after that person has died.
However, the government has now announced that, after 30th September 2012 anyone who has been wrongly charged care fees between April 2004 and March 2011 will no longer have any access to financial redress. This applies to the whole of England. Anyone who has been wrongly charged in the year to the end of March 2012 has until March 2013 to claim.
In effect, all those care fees wrongly charged, money that does not belong to the State, will now be pocketed by the State – for good.
There are gaping moral and legal holes in all this. It’s like being mis-sold something and grossly overcharged by a supplier of a service. The supplier knows he is culpable, but can’t be bothered to go through the motions of paying anything back, so it just makes up some new rules to get out of it. And yet the refund is still due.
Consumer law must surely play a part here in declaring the new Continuing Care refund deadlines invalid.
In my view, the experience of elderly people in the care system today can be like being at the hands of an authoritarian regime that takes whatever it likes. What’s even more shocking is that few people realise it happens – until it happens to them. And when it does, the families of those elderly people often become too traumatised or exhausted to keep fighting.
Since it was first set up the NHS has had an ongoing duty: We pay tax and, in return, the NHS provides services. A denial of healthcare by the NHS and any illegal charges imposed on elderly people could be considered a breach of those duties. This State-sponsored financial abuse when it comes to paying care fees seems widespread. When maladministration in Continuing Healthcare funding occurs and people are prevented from accessing proper redress, the State is, in effect, obtaining or keeping money by illegal means through illegal charging of care fees.
Lack of transparency
The decision to impose the new deadlines for retrospective reclaims for Continuing Care was announced in March 2012 by Sir David Nicholson, Chief Executive of the NHS in England. In his letter to NHS Primary Care Trusts and Strategic Health Authorities he stated:
“It is very important that this [the deadlines] be communicated effectively and as quickly as possible to your local population through whatever means necessary. This could include local press, noticeboards in hospitals and community centres and through local advocacy groups and nursing homes.”
There has been no effective NHS advertising of these new deadlines to the general public. Individual NHS websites may have a page about it somewhere, but that information will only ever be found by people who are already aware of the deadlines and who are specifically looking at those pages.
The whole thing adds insult to injury. Most families with an elderly relative in care don’t even know Continuing Healthcare funding exists, or that they can reclaim fees, let alone that there are new deadlines for reclaiming Continuing Care. Exactly how is the NHS fulfilling its duty to promote it on all counts? And yet the legal framework surrounding Continuing Care places a specific duty on the NHS to do so.
Hidden government agenda
Unsurprisingly, the new Continuing Healthcare deadlines coincide with the new and controversial Health and Social Care Act 2012, otherwise known as the NHS reforms in England.
In April 2013 new Clinical Commissioning Groups (CCGs) take over from Primary Care Trusts (PCTs), and a new National Commissioning Board replaces Strategic Health Authorities (SHAs). PCTs and SHAs currently handle the retrospective reclaim process.
It would not be unreasonable therefore to conclude that the new deadlines are motivated by the desire to clear the decks and make things easier for the new CCGs – and to stop more claims coming in. It means they can start their work without having to bother with providing ongoing proper redress for elderly people.
In other words, the Continuing Care deadlines would seem purely for the benefit of the State and nothing to do with setting things straight for the people the State has effectively falsely relieved of their assets. Can an overcharging retailer wipe the slate clean just because it chooses to no longer allocate the resources to handle the refund – for the sole purpose of saving money?
Obstructing proper Continuing Healthcare funding wastes public money
If the NHS really wants to conserve money, it would be wise to add up and address the millions of pounds of public money it wastes in the maladministration of Continuing Healthcare assessments, not least when NHS assessors seemingly ignore the law and the eligibility criteria and when PCT Decision Making Panels make illegal decisions.
Taxpayers’ money is spent on assessments and related paperwork that have to be repeated (by staff whose wages we pay through tax) because the initial assessments were seriously flawed – or carried out by staff who have not been properly trained. Plus, the NHS spends time and money defending appeals brought by understandably angry families, and legal fees are paid out of tax payers’ money for solicitors’ letters that many feel are designed to put families off.
The public purse is financing all this. The NHS seems to see no harm in spending millions obstructing funding and forcing people to seek legal redress – which then costs the NHS even more, never mind the catastrophic impact it has on families.
The backlog of Continuing Healthcare claims has not been caused by elderly people in care. It has been caused by all the above. The NHS door has been closed to many elderly people for years – the very people who have supported it through taxation for the longest. And now the State is, in many cases, making sure that door is well and truly bolted.
Lack of training leaves assessors vulnerable
I should add that most of the nurses and other health and social care workers who actually undertake Continuing Healthcare assessments and reviews seem to have little, if any, knowledge of the law in this matter and perhaps would not consciously defraud people. Many are simply told to go and do the assessment, but without adequate knowledge or training.
As a result, assessments are often carried out very badly. The assessors involved in this maladministration are also almost certainly unaware that they are personally in breach of the law. And if they are aware of the maladministration, they may mistakenly assume their employer will take the blame.
Individual directors, managers and staff can be sued, as individuals, and face the full force of sentencing. Of course, this rarely happens, not because there has been no breach leading to theft of assets, but because it is so hard for a member of the public to bring a case against the NHS and the State.
Those health and social care assessors and decision makers who wrongly force elderly people to pay for care could be in breach of the Theft Act 1968. It also follows that any health and social care employee who casually advises an elderly person (or their family) that they ‘won’t get Continuing Care’ – and in so doing prevents that person pursuing and receiving funding – could also be in breach of the law.
The Theft Act defines theft as follows:
“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it… Property includes money and all other property, real or personal, including things in action and other intangible property.”
When Continuing Care funding is wrongly denied and an elderly person is wrongly told to sell their home and use up their savings to pay for care – and when someone at the local authority slaps a legal charge on their house – the State is effectively obtaining property by deception. It is theft.
In its section on fraud and blackmail, the Theft Act also states that:
“A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years.”
Wrongly forcing someone to sell their home and give the proceeds to the State in exchange for healthcare is surely fraud.
Many families also report that the formal notes taken during a Continuing Care assessment are often wrong, and that what is discussed verbally in an assessment and what actually gets written down are two different things. Families have also reported that written notes have sometimes been altered after an assessment meeting and behind the family’s back. This would appear to be either gross incompetence on the part of assessors, or a deliberate attempt to render the elderly person ineligible for funding and force them to sell their home to pay for care. This is particularly interesting given the section on false accounting in the Theft Act:
“Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces, conceals or falsifies any account or any record or document made or require for any accounting purposes… he shall, on conviction or indictment, be liable to imprisonment for a term not exceeding seven years.”
Breach of the Equality Act 2010 and disability legislation
Setting deadlines to end financial redress for the oldest generation in our population seems a strange way to promote equality. The coalition government’s changes to the Equality Act 2010 enabling older people to sue the NHS if they face age discrimination by NHS staff may offer some hope for those who do experience it. Many report an ‘unwillingness’ by the State to provide care if the person is disabled or incapacitated and that care likely to be expensive.
It would be interesting to understand how exactly a lack of Continuing Healthcare funding is supported in the Equality Act and how it does not constitute blatant discrimination arising from disability.
In addition, the practical ability of a frail elderly person to hold the State to account is limited – and in introducing new deadlines for retrospective claims, the State is now taking away the very complaint mechanism through which an elderly person could previously seek redress.
Human Rights lawyers will, I’m sure, also take an interest here. Taking away a person entire assets without due process of law is surely also a breach of the Human Rights Act.
The Continuing Healthcare reclaim deadlines are flawed
In cases of maladministration and improper intent, those who control the duties and promises of our National Health Service are stealing further from our elderly because, in the final analysis, they deem cost to be of higher importance that the legal rights of citizens.
The evidence is clear: the Coughlan case, the Grogan case, my own parents, and many other cases where families have fought – and won. But these cases are small in number compared to the ones that have not yet been brought.
The government was been quick to announce a Parliamentary Enquiry into banking fraud. What makes fraudulent practice in the healthcare system any different? The answer seems clear: The age of the people being defrauded.
Few politicians in any party seem to have had the backbone to stand up for elderly people in any meaningful way. The new Continuing Healthcare deadlines and the lack of any substantial political objections further expose this complacency.
Law firms now have an opportunity to challenge the very deadlines that many are helping their clients meet. But time is running out. That is, I suspect, exactly what the government is counting on.
Please spread the word and make others aware of the Continuing Healthcare deadlines – before it’s too late.