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.