'The dividing line between healthcare and social care has been the subject of numerous legal cases, endless guidance, appeals to and reports by the parliamentary ombudsman and more than a few scratched managers' heads over the years'

There is a serious danger that the new single national criteria for NHS continuing care will result in a substantial number of high-cost care packages being transferred from local authorities to the NHS..

No additional resources are being earmarked by central government to meet the bill facing the NHS and, if the changes are made, no one knows or (as far as I know) has.calculated the size of the bill. Worst of all, this is likely to hit primary care trusts.mid-year without being budgeted for.

The background to this situation lies at the end of the Second World War, when a deal was made as part of the creation of the welfare state.

The post-war Labour government decided local authorities should have new social care obligations under the 1948 National Assistance Act. However, social care has always been means-tested. In contrast, healthcare was (largely) to be provided free at the point of use by the new NHS.

Who pays?

NHS patients in hospital are provided with all their medical care, accommodation and meals at no cost. Therefore, the NHS meets all the social care costs of this group of patients, as well as delivering their health needs.

But the location of care is not determinative. Those with complex or unpredictable medical conditions outside hospital fall into the category of.continuing healthcare and have all their social care costs met by the NHS as well. In practical terms, this means the accommodation (usually nursing home) fees and all other social costs are met by the NHS without a means test..

The dividing line between healthcare and social care has been the subject of numerous legal cases, endless guidance, appeals to and reports by the parliamentary ombudsman and more than a few scratched managers' heads over the years.

Elderly and infirm people, those with chronic conditions and long-stay patients in mental health hospitals who are discharged into the community under continuing care have all at times claimed they fall on the NHS side of the line. There has been an element of 'postcode lottery', as strategic health authorities'.policies have varied across the country. The test is whether a patient has a primary need for healthcare, but that all depends on what you define as a health need.

Drawing the line

In 2005, the government committed itself to developing a single set of eligibility criteria. However, this work has been influenced by a strong lobby on the local government side, which is.arguing that there is a.large number of continuing care cases that the NHS should fund but which.are currently classed as social care.

This is generally not about means-testing (since most clients have no resources) but about shifting responsibilities for groups of vulnerable people with expensive individual packages of care from local authorities to the NHS (or vice versa).

The arguments are demonstrated by adults with intellectual impairment (learning difficulties) and challenging behaviour. At present, if there are no other physical or mental problems, these clients are often funded by social services, but there is a strong move to use the eligibility criteria to shift the responsibility from the local authority to the NHS.

The argument goes like this. These individuals, it is said, have complex care needs and it does not matter whether those needs are fulfilled by recognised healthcare professionals or in a healthcare setting. As long as the needs are caused by their intellectual impairment, the NHS should pick up the costs. But, complains the PCT, our staff don't see these patients from one year to the next, so how can they have health needs?

A line.must be drawn somewhere between health and social care and it is the job of the new criteria to draw that line. At the moment, however, the social services lobby appears to have been highly effective at persuading the team designing the new eligibility criteria that 'care needs' can usually mean 'healthcare needs', and therefore the NHS should pick up the bill.

David Lock is a barrister and the head of healthcare at law firm Mills & Reeve. For further information contactdavid.lock@mills-reeve.com