The high price of care that should be free

There are differing degrees of gaffe. Take Iain Duncan Smith, for example – his attempt to extol the virtues of Newcastle United on a visit to a Sunderland-supporting area of the North-east last week made him look a bit foolish. But that rates nowhere near the Dan Quayle school visit, when the (then) vice-president of the USA insisted to a bemused pupil that potato should be spelled "potatoe".

So in this context where do we place prime minister Tony Blair's claim, a few years back, that he didn't want his children to grow up in a country where old people had to sell their homes to pay for their long-term care? It's not in the "potatoe" league, but it certainly qualifies as a promise better not made – because during Blair's premiership, tens of thousands of elderly people have had to sell their homes to pay for long-term care and it doesn't seem like this will stop any time soon.

It looked as if this difficult issue could be resolved through a Royal Commission. No such luck. The commission's main recommendation was that all personal care in people's own homes, as well as residential settings, should be free. The government ignored this (although the Scottish Executive embraced the idea).

Now, in her first report, health ombudsman Ann Abraham has opened the wounds again. She has concluded that many elderly people have been wrongly charged for their care under existing law.

This is partly because health department guidance was unclear and weak, partly because health authorities (surprise, surprise) decided to interpret that guidance in too restrictive a way. In the four cases she examined, Abraham found that the NHS should have paid because these residents' primary needs were for health rather than social care – the policy and the way it was implemented had led to "injustice and hardship".

Her conclusion – that government guidance was flawed – was bad enough, but she has asked the NHS to review past cases where nursing home patients may have been charged for their care when it should have been free. No one seems to know how big the bill could be, but more cases are inevitable.

During Blair’s premiership, tens of thousands of elderly people have had to sell their homes to pay for long-term care and it doesn’t seem likely to stop soon

Abraham is unequivocal and the courts are clear about the law, most recently in the case of Monica Coughlan in 1999 – if it is health that drove you into care, the NHS should be picking up the bill.

Sadly, in some ways this debate has barely moved on over the past few years. We are still arguing about what constitutes healthcare and what should be classified as social care, while the awkward fact remains that while someone suffering from cancer is entitled to free care, thousands with dementia are not and instead have to sell their homes and watch their savings shrink.

It looks as if the health department has buried its head in the sand. Ministers blamed local NHS bodies but the ombudsman clearly had another target in mind when she said: "The Department of Health's guidance and support has not provided the secure foundation needed to enable a fair and transparent system of eligibility for funding to be operated across the country." In other words, it is a mess and a muddle.

It now seems possible the government will face numerous claims for compensation from elderly people, their relatives and even their estates. If the ombudsman is right, we are long past the time when this should have been sorted out once and for all.

That is not necessarily an argument for free care – which would at least have the advantage of simplicity. Nor is it an argument for the Royal Commission's free personal care. It is not even an argument against the government's current solution for England, which involves making a contribution towards the cost of qualified nursing. It is an argument for a clear line to be drawn, a line that is understood, and backed by law.