A factsheet of practical advice to help you understand the rules on NHS funded care
Most individuals with care needs either pay for this care themselves or receive partial funding from Social Services. However, if you, or a relative, have what is known as a primary health need, NHS Continuing Healthcare funding may be available. This is also sometimes referred to as continuing care, fully funded care and, erroneously, continuous care. Such funding should meet the cost of care in a nursing or care home, or in your own home, but the criteria for continuing healthcare eligibility (sometimes referred to as continuing care criteria) are complex and the assessment process, including the continuing care checklist, is often frustrating.
This factsheet on NHS funding for continuing healthcare is designed to answer the question: what is continuing healthcare? It will also help you access NHS Continuing Healthcare funding in England. (See below for Scotland, Northern Ireland and Wales).
Eligibility for continuing healthcare funding in England is determined against continuing care criteria by the local NHS (Clinical Commissioning Group or Commissioning Support Unit). To qualify, your care needs must be not merely incidental to the provision of accommodation and not of a nature that Social Services could be expected to provide.
These are difficult concepts, but basically distinguish your social care needs (typically associated with older age and declining physical or cognitive functioning) from more complex, intense or unpredictable primary health needs.
Establishing eligibility for continuing healthcare is not as simple as showing that nurses look after an individual. Nor is it as straightforward as having a certain medical diagnosis – there is no simple continuing healthcare criteria.
Historically many older, vulnerable or disabled people wrongly paid for healthcare, because of inadequate guidance and flawed or non-existent assessments of their needs. The National Framework and Decision Support Tool, introduced in England on October 1 2007, aimed to establish a fairer and more consistent system for determining when an individual’s care should be covered by NHS Continuing Healthcare.
However, the legal principles set out in the well-known case of Pamela Coughlan still apply: your needs must be of a nature, complexity, intensity or unpredictability such that they are not merely incidental to the provision of accommodation and not of a nature that Social Services could be expected to provide.
It is important to note that NHS Continuing Healthcare is a limited resource and not everyone with care needs will qualify. Continuing Healthcare commissioning can become complex. If the level of CHC funding on offer is insufficient to meet a person’s weekly cost of care then legal advice should be sought.
Central to the National Framework is the primary health need test. Unfortunately, the phrase is not defined. The concepts of nature, intensity, unpredictability and complexity of the individual’s need are highly relevant, but the NHS will use the Decision Support Tool to assess the level of need in 12 care domains. High scores on the DST will not necessarily result in a positive eligibility decision if the person’s needs are not complex or intense.
This continuing healthcare criteria assessment process is used alongside other evidence to determine whether an individual has a primary health need, as opposed to a social care need (where costs are not covered by the NHS).
Make sure the NHS assesses healthcare needs at an early stage – preferably at the time of, or before, Social Services assesses finances. The NHS has to take reasonable steps to ensure an assessment is carried out in cases where there may be a healthcare need – for example, when someone is discharged from hospital to a nursing or care home. However, this may not happen automatically and you should ask. The first stage should be the application of the Continuing Healthcare Checklist (also referred to as the Continuing Care Checklist) to determine if a full assessment is necessary.
The Continuing Healthcare Checklist is a basic screening tool and may result in your relative being told they do not qualify for funding or for a full assessment. The person being assessed is entitled to have a relative, friend or other representative at the meeting to ensure that their healthcare needs are understood and correctly noted down by the Nurse Assessor. Ask to be present at the assessment.
Look carefully at the paperwork and seek advice if the NHS refuses to undertake a full assessment.
Once the full assessment has taken place, ask for a copy of the Decision Support Tool document (DST). This is usually completed by the NHS nurse assessor, in consultation with the multi-disciplinary team involved in your relative’s care. You may be told you need an Enduring or Lasting Power of Attorney to get copy documents if the assessment isn’t about you: seek advice if you do not have this formal authority. You or your relative should be asked to comment on the DST. Check the document and any supporting evidence to ensure it is an accurate picture of the person’s healthcare needs. For instance:
Put your comments in writing and ask for them to be presented to the NHS, alongside the Decision Support Tool and the multi-disciplinary team’s recommendations. The decision on NHS Continuing Healthcare funding will normally be made by a NHS panel at a closed meeting.
If the correct assessment procedure has not been followed, or the assessment or funding decision is wrong, ask the NHS to register a review – it costs nothing and you can withdraw if a solicitor or specialist advisor suggests you have no prospect of success. Act quickly as most NHS CCG’s set deadlines for registering appeals.
If your relative does not qualify for NHS Continuing Healthcare funding ask the NHS to reassess eligibility if their health declines and their healthcare needs change or increase.
If the NHS decides your relative does not qualify for NHS funding and Social Services suggest you sell your relative’s home to pay fees, ask a specialist if there is any way the value of the family home should be ignored by the financial assessment. Social services have some discretion to ignore the value of a home in assessing an individual’s ability to pay, but they will not exercise this unless asked.
Check your relative is getting all the benefits they are entitled to as a self-funding resident, in particular Attendance Allowance and Funded Nursing Care payments. Another alternative to selling the home is a Deferred Payment Agreement (social services loan funding), but legal and independent financial advice should be sought before making major financial decisions.
The national framework applies to NHS continuing healthcare funding in England. Different guidance operates in Wales and Northern Ireland. Anyone seeking funding should consider getting specialist advice. A different approach applies in Scotland where nursing and personal care costs (but not accommodation costs) are funded at set levels.
Martin Searle Solicitors is the trading name of ms solicitors ltd, which is authorised and regulated by the Solicitors Regulation Authority, and is registered in England under company number 05067303.© 2021