Our response to the Grogan case (25.01.06)

Age Concern England Director-General‚ Gordon Lishman‚ said:

“It is a travesty that it has taken chronically ill Maureen Grogan to highlight once again that the system of receiving fully fund NHS care is in disarray and also the major problems about who gets help with nursing care. Without action vulnerable older people will continue to feel that at one of the most distressing times of their life‚ the Government is washing their hands of them and denying them the funding for the care they are entitled too.

“The judge in this case has added his voice to Age Concerns and many others that it is for the Department of Health to sort this out because these decisions ‘have a profound effect on the individuals concerned’.

“Above all older people need to be clear of their entitlements for when the state will fully fund their care. All too many are left wondering whether they should be paying or not.”

Ends

Note to Editors

Spokespeople are available contact Age Concern press office on 020 8765 7511

Background on Grogan case

The Queen on the application of Grogan and Bexley NHS Care Trust‚ SE London Strategic Health Authority(interested party)‚ and Secretary of State for Health(interested party).

What? Challenged the refusal to provide fully funded NHS care and only paying for nursing costs.

Why case is so important

The chronically sick who have complex nursing needs or need a lot of nursing care should be entitled to have their nursing and nursing homes fees paid by the NHS. However confusing guidance means that those who share similar needs receive a mere £129 a week as a contribution towards the nursing care they need and others receive fully funding. The criteria for being eligible for fully-funded care or just NHS funded nursing care is very confusing. The guidance about who qualifies for continuing NHS health care and funding is hugely complex and baffles health care professionals‚ advisers and older people‚ and judges alike.

This case challenges the Bexley NHS Care Trust‚ using criteria drawn up by South East London Strategic Health Authority which assessed Mrs Grogan as not qualifying for her fees to be paid despite the 65 year-old suffering from ‘deteriorating’ multi sclerosis‚ dependant odema with the risk of ulcers breaking out‚ double incontinence‚ has ‘nil’ mobility and is a wheelchair user requiring two people to transfer her‚ together with some cognitive impairment.

Older people and their families are suffering anxiety and heartache because of the confusion about who should pay for care. As a result people are paying for care that should be provided by the NHS.

Supportive statistics

In 2004-5 20‚842 people received full funding towards their care‚ (HoC written answer 10th Jan) and between 15‚000 – 20‚000 people are on the high band of nursing (evidence from the Department of Health to the Health Select Committee)

What the significance of this case could be:

The first major legal challenge looking at the line between the Department of Health guidance on nursing care bands and the Department of Health guidance on fully funded care;
No one else‚ patients‚ advisers and even the Ombudsman has been able to make sense of the guidance yet thousands of older people and their families rely on this guidance to determine what support they are entitled to when they are chronically ill.

What we think

Although the Department of Health is currently working on one national set of eligibility criteria for fully funded care we don’t see how they can do this without sorting out the criteria for the nursing bands.
We hope that this case will sort it out once and for all and ensure the Department of Health has to issue guidance that the person on the street can make sense of.

History

The policy about who gets fully funded care is littered with court cases and Ombudsman’s reports. As far back as 1994 the Health Ombudsman considered that the NHS had withdrawn too far from providing health care and was expecting people to fund their own care in nursing homes. As a result guidance was issued by the Dept of Health in 1995.

This guidance came under scrutiny in 1999 in the famous Coughlan case. Here North and East Devon Health Authority had drawn up criteria based on the 1995 guidance‚ which the judges considered was far too restrictive about when the NHS would remain responsible. They did not find the guidance issued in 1995 unlawful but they did find it unhelpful and elusive.

In 2001 the Department of Health issued new guidance but the Health Ombudsman in her report issued in 2003 found this guidance gave no clearer definition and in some ways was weaker ‘I would fear I would find it even harder to judge whether criteria were out of line with current guidance. Such an opaque system cannot be fair’.

In the same year the Government introduced a system to pay for nursing care in care homes (previously residents in care homes were the only people who had to pay for their nursing care). It was based on a banding system (currently £40‚ £80 and £129). But the criteria (especially for the high band) is virtually identical to the criteria for fully funded care. In some ways it seems more difficult to qualify for the high band of nursing that it should to get fully funded care. Such is the level of confusion that the Health Ombudsman sought legal advice as she could not see how someone assessed for the high band of nursing care if they had been properly assessed would not have met the criteria for fully funded care (Evidence to the Health Select Committee).

In November 2005‚ just before this court case the Department of Health issued a letter to all health authorities asking them to check that people had had a proper assessment of whether they should be fully funded.