Opinion: Alistair MacFarlane.

(From The Lawyer)

Alistair MacFarlane, partner, Thomas Eggar

With free healthcare, but means-tested social care, people in England and Wales are getting a raw deal

Up and down the country, dinner party conversation in many homes has changed from quiet satisfaction over the increase in house prices to outright concern over whether the property will have to be sold to pay for care.

A rapidly ageing population and the soaring cost of home care fees is a serious worry to many elderly people. A recent Panorama programme highlighted the problems faced by families when one of their loved ones is forced to go into a nursing home and the confusion that exists over the responsibility for funding continued care.

While healthcare provided under the NHS is free, social care is the responsibility of the local authority and is means tested. If the person requiring care has assets in excess of GBP21,000, they will be responsible for paying for all their social care. The end result is that anyone owning a property, but very little else, will almost certainly be forced to sell their home. When people have saved hard over many years to buy a house, this seems grossly unfair.

In the landmark Coughlan case in 1999, the Court of Appeal ruled that, if nursing care services were "incidental or ancillary" to the provision of accommodation, then this would be classed as social care and must be provided by the local authority. However, where the primary need is healthcare, the NHS is responsible for providing this service.