Nursing Home Fees - Fight For Your Rights

Last week’s news that a 94 year old widow with dementia won the right to have her nursing home fees paid for by the NHS for the rest of her life is to be welcomed.

What is to be deplored however is the 5 year legal battle for Mrs Atkinson’s family to win the argument. The worry of paying nursing home fees hangs over many elderly people and their families. Many delay seeking the help they need and are entitled to.

Care for the elderly used to be provided in hospitals and so was free under the NHS. But who wants to stay in hospital for any longer than necessary? Care homes, whether state or privately run, now provide the care previously provided in a hospital setting.

Care homes fall into two categories; residential where the care is considered to be ‘social’, ie for people wanting companionship or are too frail to continue to live on their own; and nursing for those with greater medical needs.

The distinction is an important one. If a person is assessed as needing nursing care then the NHS provides it through the local Primary Care Trust. If care needs are only ‘social’ then the individual must pay privately. Contributions to any nursing care in a residential home may be made by the local authority but is dependent on an assessment by Social Services. This is entirely separate from the assessment for Continuing Care which is carried out by the Primary Care Trust and is the subject of the recent legal cases.

In 1999 Pamela Coughlan, a tetraplegic following a car accident and living in an NHS home, was faced with North and East Devon’s decision to close that home and transfer her to another where she would have been responsible for the full cost of her care. Miss Coughlan successfully challenged her local Primary Care Trust on the basis that her primary care needs were nursing and not just social. As Miss Coughlan was deemed eligible for Continuing Care the costs of her care were met in full by the Primary Care Trust.

Miss Coughlan’s primary needs were health care and her case clearly established the principle that the NHS should pay for that care whether provided in hospital, a private nursing home or in the person’s own home.

Assessing people with dementia and other less obvious needs has proved rather more difficult. Local primary care trusts, seeking to minimise the demands on their budgets, argue that someone unable to care for themselves because of their dementia qualify for social care not specialist nursing care and so do not qualify for funding.

Earlier this year Mike Pearce after another 5 year legal battle won £50 000 from Torbay Care Trust. Mr Pearce sold his mother’s home to pay her care costs as her assessment said she did not need nursing care despite, as the Alzheimer’s Society put it, ’being incapable of doing anything but chewing and swallowing’. Unfortunately Mrs Pearce died before the case was settled – at which point of course many families give up not having the will to pursue the matter.

Returning to Mrs Atkinson’s case against Plymouth Teaching Primary Care Trust. It is a further illustration of the reluctance of Primary Care Trusts to pay the costs for those whose primary need is health care.

Currently just 25,000 people are deemed eligible by Primary Care Trusts to receive fully funded health care. The Alzheimer’s Society estimates that perhaps 10 times that number may be eligible if they did but know it.

Each Primary Care Trust had its own eligibility criteria for ‘free care’ leading to a ‘post code lottery’ provision of services. Many did not comply with the criteria set down in the Coughlan case. Such criteria can and should be challenged. National eligibility criteria have been introduced since October and it remains to be seen how these will be applied.

Unfortunately the person in care, by definition, is not able to challenge the funding decision themselves. Families, distressed enough at a loved one needing care and possibly in a deteriorating condition, do not have the energy to challenge the nursing care assessment and subsequent funding decision.

As care fees can be upwards of £500 per week and the average stay in a care home is about two years it is well worthwhile checking that the person in care is receiving all the support and financial help to which they are entitled. All Primary Care Trusts have a procedure to be followed to challenge their decision and these challenges can be successful.

We, at Foot Anstey, have won a number of appeals against Primary Care Trusts funding decisions and substantial care costs were recovered on the basis that the Trust had inadequately assessed the patient’s needs.

Before resorting to the law another avenue to pursue is making a complaint to the Health Service Ombudsman that the eligibility criteria are not being correctly interpreted. The Ombudsman is very robust in her views that nursing needs should be met by the NHS.

Various organisations offer considerable help to families faced with this worry; the Alzheimer’s Society runs a national help line ( 0845 300 0336); Age Concern has some very helpful fact sheets freely available on its website www.ageconcern.org.uk; Solicitors for the Elderly is a specialist body for solicitors with particular expertise in this area and lists on its website solicitors who are members by town www.solicitorsfortheelderly.com

Published 27/11/2007. The author of this article is Sue Savill