the "Overview" page of

last updated 1200 Friday 24th August 2007

Robin This page gives readers the "big picture" of what our campaign is about, and helps them see "the wood for the trees".

It was mostly written in February 2003 and is my own personal view of what "Coughlan" and Free Continuing Care is about, and what may happen in the months and years ahead. The words below are my own, but I would like to thank all those who have helped me understand the law and this law-breaking by Government and NHS in recent years. I particularly want to thank Derek Cole, my good friend and legal advisor, and Pam Coughlan, whose case made the the law clear. Other pages of provide much more detail, including my mother's case and how I got drawn into this campaign.

does it apply to me ?

This subject applies to you directly if you are closely related to someone who has moved into a Care Home, Nursing Home or Hospice, because they are not well enough to remain in their own home. They may have been the victim of a stroke, cancer, Alzheimer's, serious accident, or anything which has resulted in them needing long term nursing care. They will probably have spent time in an NHS hospital prior to the Care Home, although this need not be the case. It certainly applies to you directly if you would be paying for the Care Home, or would inherit part of the estate of the patient. It applies indirectly to all of us: most of us know someone in this situation, and most of us pay rates: Social Services also have been paying towards the cost of Care Homes - when it is the NHS who should pay all of these costs.

You can compare your patient's case with the medical condition of Pam Coughlan by visiting our advice to solicitors page. If the patient's health care need is equal to, or greater than Pam's, then under the law, they should qualify for 100% NHS funded Continuing Care.

Most, if not all, Eligibility Criteria for Continuing Care still being used within Health Authorities, to decide if someone qualifies for 100% NHS funding are deeply flawed - some would say "unlawful". Why ? Because if they were applied to Pam Coughlan, she probably would not qualify. This is because they are vague and do not include a "Coughlan test". i.e. comparison of the patient's care needs with those of Pam Coughlan.

Tried ? e.g. to document it is a HEALTH condition. e.g. "what is alzheimers", "MS", "MND", etc.

The Law

Since the 1946 Health Act, the NHS must pay for all our nursing needs from cradle to grave. Since 1999 those who were duped into paying for their nursing home care may claim back the money under Coughlan - the case of Pamela Coughlan, costing some £1.2 million to fight, which was won in the Appeal Court. The Ombudsman suggested a "trawl back" to 1996 for those who were charged for their own care unlawfully. This may amount to some £30 billion owed by the NHS to families who paid the nursing home costs.

The Law Society words on our front page are very clear: "The judgment in Coughlan clearly establishes that where a person's primary need is for health care, and that is why they are placed in nursing home accommodation, the NHS is responsible for the full cost of the package. " Furthermore, the same right of 100% NHS funding under the law, applies to those in a residential home, their own home, a hospice, or hospital.

the NHS Confidence Trick

Legislation, conceived during the Thatcher era, passed administration from the family GP to the NHS, for the process of moving a person into a Care Home from hospital or their own house. This 'Care in the Community' act, passed in 1993 and modified in 1995, became the means for the NHS and Social Services (once one organization) to perform a massive confidence trick on us all. Beds, seen to be occupied by patients unlikely to be cured, could often be freed by moving the patients into a nursing home. The cost of such a home would probably be less than half that of a hospital bed, and the circumstances for the patient and their family probably much better. So far, no problem. However, what soon became the norm was for the local Social Services to become involved. They would misinform the family that the nursing home must be paid for by the family, after a "means test" - which is completely unlawful. If and when the patient has no money, after selling their house, then the Social Services (i.e. the local rate-payers) will pay. However, in most typical cases, the majority of the nursing home costs were paid for by the patient's estate. Several hundred thousand families have done this, and each will be owed many tens of thousands of pounds - hence the estimated tens of £billions owed by the NHS to these many families.

is it fair ?

Some may say "if people can afford it, why should they not pay for their nursing home ?" My personal view is that it is particularly unfair to pick on this vulnerable group of patients to pay for their own care. Why not choose some other group, such as those going into a hospital to have a baby, or those in hospital with deseases caused by smoking or obesity ? Confronted by the truth I am sure all of us, whatever our politics, will agree that the NHS should pay for 100% of all nursing care - as required by Law.

can we afford it ?

"Yes" is the simple answer. Our best guess is that the cost of the NHS obeying the law, and granting Continuing Care to all those who are entitled to it, might cost in the region of £3 billion per year. The backlog created by those defrauded in the past ten years may now be £30 billion. However, medical records are destroyed, and any repayment procedure would take years, and so we are still dealing with a figure in the ballpark of £3 billion per year. Compare £3 billion with the typical annual spending on the NHS of £96 billion, or total Government spending of some £552 billion per year. If the Government are frightened to increase taxes on all of us, they can always add the £3 billion to their massive "borrowing requirement" - with little effect on the economy.

stopping the Confidence Trick

How will we stop the confidence trick ? In my view it can only happen one way: by very large numbers of families, acting with determination and great patience, refusing to pay for this care and claiming back money owed them. They will need to have the correct letters written for them to the right people, do the right things, and let the law take it's course over many months and years. Unfortunately, despite the fact that we love to hate them, they will probably need the help of lawyers - or reputable businesses able to take on the work on a "no win, no fee" basis.

what should I do ?

You should consult the simple advice on the front page of including that to solicitors and "spreading the word".

the Lawyers

Large successful law firms like Bevan Brittan (formerly Bevan Ashford), who defended the NHS in the Coughlan case and lost, and have defended the NHS on Coughlan-related cases and lost, will happily continue to defend the NHS on these cases and lose: they are paid for their time by their client - not on results. Strange as it may seem, it is in the business interest of law firms defending the NHS for large numbers of families to have their cases fought and won. The cases are lost - but they still get paid. It also makes "business sense" for the NHS to continue fighting each case: delays in the case being won means delays in their paying back that huge backlog of claims - and more medical records are destroyed. Now let us look at the business opportunities for other reputable businesses who offer "no win no fee" services. Their costs, fees and profits will depend on many things, including who else enters this business to compete with them, and how many years it takes for the Government to recognize it will cost the taxpayer less for the NHS to stop fighting cases, and set up a faster means of families claiming the money - but don't hold your breath. "No Win No Fee Coughlan business" might be worth £billions over several years - if they charged 10% of money claimed back on a "no win no fee" basis.

the Politicians

Politicians, both local and MPs, have their uses: they often have the ear of the press, and right now publicity of is probably our best means of informing everyone of this injustice and how it might be resolved. It was via the publicity efforts of an MP that I found out about all this, and obtained the expert support of Derek Cole. However, all politicians in office are probably afraid of Coughlan - because almost all will be of the same party as the local council, where this unlawful and immoral practice has been perpetrated. If they make a fuss, they risk having cases on their own patch raised. Ultimately it is the local councilors and MPs who can exert pressure on Social Services and NHS to get back into line and do the right things. The opposition parties at local level have less to lose and can be more vocal - but do not expect too much of them - they are only politicians :-)

the Police

Most of this "Coughlan" subject is too much of a "hot potato" for the police. Also, do not confuse "unlawful" and the civil courts, with "illegal" and where the police get involved. Criminal Fraud has certainly occured, and still does - to the tune of £billions per year - but pinning down those who should be prosecuted, and finding the evidence, is not unlike the subject of "war crimes". Few DPP or senior police inspectors will want to tangle with those who appoint them. Many police will regard some of the grey areas as a bit academic, where we are talking about criminal offenses such as "misfeasance in public office" or "conspiracy" - but do not underestimate how these subjects may "concentrate the mind" of some senior managers in NHS and Social Services. Ignorance of the law has never been a defense for anyone. We are dealing with vast sums of money sloshing around within a huge, poorly managed NHS organization. I would be amazed if organized crime did not already have a major foothold within the NHS. The police have already been alerted to these "grey areas" and other, more serious crimes such as manslaughter and murder. These are police matters and may also be passed to investigative journalists who want to "dig deeper".

those within NHS and Social Services

Despite "concentrating minds", and catching news headlines, the effect of police investigation will probably be counter-productive: NHS doctors and staff will simply "close ranks" and hide or falsify medical records even more than they do now. Hence the concept of an Amnesty for those people who admit to unlawful, or even criminal behavior. We do not need to punish the wrong-doing - just bring it to an end. It is not easy to distinguish between a manager who is telling a deliberate lie, or one who is simply repeating something they had been told, and had never questioned it. An early example was where an NHS manager told me that they were confident that the "criteria" document they were using was lawful and compliant with Coughlan, because they had taken the advice of Bevan Ashford, the law firm who had won Coughlan. See "the Lawyers" above - Bevan Ashford did not win this case - they lost. I have some sympathy for those within NHS and Social Services, desperately trying to do their day to day work, perhaps maintain a pretense to families that what they are telling them is true, but perhaps starting to have their own doubts on whether they are "doing the right thing", or even that they may be breaking the law.

the Future

Your crystal ball may be better than mine: my own guess in February 2003 was that this subject would be public knowledge sometime later in 2003, and within a year or two, large numbers of families, aided by no win no fee businesses, will be claiming back the money owed to them. I had not realized how poorly this subject would be handled by the media. I had hoped that many others, now knowing the law, will not be paying for the care home, and insisting on it being paid for by the NHS. After a few months or years of this, the Government - of whatever party - will insist that the NHS and local authorities fall into line with the law, and this will no longer be a major issue. If we are optimistic, we may hope that this will help to solve some of the other NHS problems like bed-blocking, which is probably partly due to a fight between NHS and Social Services budgets. If we are really hopeful, perhaps some of the secrecy surrounding medical records will be reduced, increasing the efficiency of nursing staff and those who need to monitor standards of care. Of course, even when the NHS fall into line, and they pay for Care Homes, other problems are sure to arise. e.g. there will be a financial pressure for increased care of old people at home - but not to the same quality of life they might have had in a good care home. But we may hope that things will get better rather than worse - slowly.

This may all happen a little quicker, of course - but, as I said earlier, don't hold your breath :-)

Robin Lovelock
August 2006

footnote on facts and figures ...

The figures above are almost all "guesstimates" but at least serve to quantify the approximate size of the ongoing fraud, and answer questions such as "can we afford it". Robin is grateful to those who have provided recent figures.

e.g. the figures of annual expenditure on NHS and total Government spending were based on

Various other "non attributable" estimates given to Robin include: 25,000 patients currently receive 100% NHS funded Continuing Care, but under the law, another 75,000 are entitled to it. If an average care home costs £500 per week, that's £26,000 per year. 75,000 extra patients would cost nearly £2 billion/year. However, many nursing homes cost far more than this, and this, together with the backlog of claims to be made, probably puts the cost of the NHS obeying the law to nearer £3 billion per year. Of course, the figure of 75,000 may also be an under-estimate. Estimates of how many people sold their house to pay for care vary from the 360,000 in Paul Burstows report of 2002, to figures as large as 700,000 in the Sunday Express.

Large insurance companies interested in moving into health insurance, including cover for long term health care, perhaps coupled with Coughlan-based claims of care costs against the NHS, may wish to read statistics on this page, which includes:
The total value of the care home market for elderly and physically disabled people at April 2003 was estimated at £10.2 billion, of which private sector operators accounted for £6.9 billion. At April 2003, there were an estimated 501,900 places in residential settings for long stay care of elderly and physically disabled people across all sectors (private, public and voluntary) in the UK. Overall UK capacity has decreased by some 13,400 places in the 15 months to April 2003, a similar annual rate of closure to the previous year. Total capacity is now some 73,700 (13%) lower than the 1996 peak of 575,600. The latest Laing & Buisson fee survey in March 2003 found average weekly fees of £455 for private nursing care for elderly people and £329 for private residential care in the UK. Average fee inflation is estimated at 8% for both private nursing and residential care for older people between 2001/2002 and 2002/03.
and, under "Occupancy Rates": Laing & Buisson's most recent full survey of care homes for elderly and physically disabled people, in March 2003, found occupancy rates of 91.8% for all for-profit homes, compared with the average of 90.4% recorded in 2002 and 92.3% for private residential homes and 87.7% for dual registered homes.