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Guidance for Professional Deputies on Hospital Discharge to Assess Funding from September 2020

Care funding solicitors explain deliberate deprivation of assets is

Establishing appropriate care and support arrangements for our clients before they are discharged from hospital is often a battleground characterised by funding disputes and delays in properly assessing their needs.

On 21 August, the NHS published its “Hospital Discharge Service: Policy and Operating Model”, which is effective across England from 1 September 2020. The comprehensive Policy replaces the Department of Health & Social Care (DHSC) Discharge Service Requirements which were introduced as one of the emergency responses to the Coronavirus pandemic in late March 2020. This Policy holds some welcome answers for the first few weeks following discharge, which is typically the crisis period.

This new Policy is important for Professional Deputies and private client lawyers, as it sets out a clear framework to navigate the process of needs assessments and statutory funding entitlement on discharge from hospital.

The Discharge to Assess model (“D2A”) is not new: it has been in place since 2016, although it was optional and rarely used in practice used before the pandemic. It is now mandatory for health and social services to adopt the model, which means that many of our clients with complex needs should receive a short-term package of care and support at no cost to them.

The objective is to ensure that NHS hospitals continue to have capacity to support patients with acute healthcare needs, by minimising bed-blocking. The model requires health and social services to work together to arrange safe and rapid discharge of patients who no longer require a hospital bed.

The starting point is to discharge home where possible – which is what many of our clients want, provided that it comes with sufficient care and support. If discharge home is not possible, and a care placement is required, the aim is to get people back home as soon as it is safe to do so.

This Policy requires hospital clinicians to determine which of the four discharge pathways apply to the patient. The pathways and DHSC anticipated percentages of how these will breakdown are:

  • Pathway 0 (50%) – simple discharge, no formal input from health or social care needed once home.
  • Pathway 1 (45%) – support to recover at home; able to return home with support from health and/or social care.
  • Pathway 2 (4%) rehabilitation or short-term care in a 24-hour bed-based setting.
  • Pathway 3 (1%) require ongoing 24-hour nursing care, often in a bedded setting. Long-term care is likely to be required for these individuals.

If our clients fall within pathways 1 to 3, the cost of their care and support should be fully-funded for up to six weeks, regardless of where they receive that care. If our clients had a pre-existing support package, it is only the additional support required post discharge that is fully funded.

During the six weeks of D2A funding, health and social services should both undertake relevant eligibility assessments to inform the provision and funding of our clients’ long term care and support package. If the assessment and decision-making process has not concluded within the six week period, then fully-funded support should be extended to allow more time for the assessments.

The carrot for health and social services is that for the first six weeks, the funding comes from a central pot, known as the discharge support fund, not from their own budgets. However, the stick is that from week seven, health and social services will have to fully fund from their own existing budgets if the assessment process is incomplete.

Health and social services may decide to reach a local level agreement about funding from week seven; the Policy sets a default position in the absence of local agreement. The Clinical Commissioning Group (CCG) will have funding responsibility if they have not completed NHS Continuing Healthcare and NHS Funded Nursing Care assessments. If the CCG has complied with its duties, the duty to fully fund passes to Social Services until such time as a Care Act 2014 assessment has been completed. Our clients cannot be charged retrospectively for any period during which D2A funding or default funding should have been in place.

The DHSC has introduced parallel Guidance, also effective from 1 September 2020, for the Reintroduction of NHS Continuing Healthcare. This was necessary because the duty of CCGs to assess our clients for NHS CHC eligibility was suspended in March by the Coronavirus Act 2020.

We believe that this Policy represents an important and long-overdue recognition that our clients should not be charged for their care and support needs in the absence of proper assessments of those needs. It is reasonable that the statutory bodies should continue to fully fund if they have not complied with their legal duty to assess.

There is scope for things to go wrong within the D2A model, as with any new policy. We are particularly concerned that our clients may have little meaningful right to their choice of discharge destination. Professional Deputies and private client lawyers will need to become extremely familiar with the smaller detail set out in this 48 page Policy.

While it is inevitable that some of our clients will still face delays, they will at least have the comfort that they will not be paying for their own care while they wait. However, the reality remains that many of our clients will still face difficult and complex funding disputes after the outcome of the assessment and decision-making process.

Our Community Care lawyers provide expert legal advice on your client’s eligibility for health and social care funding as well as challenging negative decisions. If you require assistance, please contact us on 01273 609911, or email deputyservices@ms-solicitors.co.uk.

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About the author

Cate Searle

cate-searle

Cate has many years’ experience of representing clients who have disabilities, mental health problems or caring responsibilities across a range of legal issues. Cate’s specialisms include: Court of Protection litigation on Health & Welfare and Property & Finance; Mental Capacity law, including best interest decisions; Safeguarding adults at risk; Funding disputes with Health and Social Services (including NHS Continuing Healthcare, financial assessments and deprivation of capital).

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