NHS Continuing Care - When the NHS Should be Responsible for Long Term Health Care

What is NHS Continuing care?

NHS Continuing Care is a package of care arranged and funded by the NHS which people need over an extended period of time. Care may be provided in a range of settings including an NHS hospital, nursing home, hospice or at home.

NHS Continuing Care is available for everyone, but many people who need it are older.

If a person is eligible for NHS Continuing Care the NHS will pay for all care costs including personal care costs, so for example, the total costs of a care home are met.

Why is NHS Continuing Care important?

For many years hospitals provided beds for victims of strokes, dementia sufferers or elderly people who were frail and had no one else to care for them.

In the 1980s the NHS began to move away from long term care provision. There was a 38% reduction in beds for older people between 1983 and 1996.

There was a shift away from the provision of general nursing care for older people from the NHS to the Local Authorities. But the general principle remains that the NHS has to pay for care when the primary need is for health care, but where health care is ancillary or incidental Local Authorities are responsible.

What does this mean for people needing care?

Care arranged through Local Authorities is means tested.

NHS Continuing Care is free.

Who is eligible for NHS Continuing Care?

In June 2007, the Department of Health issued a National Framework setting out the process for establishing eligibility for NHS funded care. The National Framework came into force on 1st October 2007. This framework was revised in July 2009 and again in November 2012.

The Framework emphasises that the focus is on the individual’s needs when assessing eligibility. It states that:

  • Where a person demonstrates a primary health need their care should be funded by the NHS.
  • The nature, complexity, intensity and unpredictability of a person’s needs should be examined
  • The reasons given for a decision on eligibility should not be based on -
    • where the care is provided
    • the ability of the care provider to manage care
    • the use or not of NHS employed staff to provide care
    • the need for/presence of specialist staff in care delivery.
Decision-Support Tool for NHS Continuing Care

As part of the National Framework, the Department of Health published a tool designed to support decision makers in the application of the national policy on eligibility for NHS Continuing Care. This is to try and deliver consistent decision-making across the country.

The tool provides a way of examining a person’s needs by looking at twelve “care domains”:

  1. Behaviour.
  2. Cognition.
  3. Psychological and emotional needs.
  4. Communication.
  5. Mobility.
  6. Nutrition – food and drink.
  7. Continence.
  8. Skin and tissue viability.
  9. Breathing.
  10. Drug therapies and symptom control.
  11. Altered states of consciousness – e.g. comas or seizures.
  12. Other significant care needs.

Assessors are asked to consider how different but inter-related needs across more than one care domain can complicate the individual’s overall care needs and together can demonstrate complexity or intensity.

Establishing a Primary Health Need

A clear recommendation of eligibility for NHS Continuing Healthcare would be expected in each of the following cases:

A level of priority needs in any one of the four domains that carry this level.

A total of two or more incidences of identified severe needs across all care domains.

If there are a number of domains with high and/or moderate needs, this can also indicate a primary health need. In this case, the overall need, the interactions between needs in different care domains, and the evidence from risk assessments, should be taken into account in deciding whether a recommendation of eligibility to NHS Continuing Healthcare should be made.

If needs in all domains are recorded as “low” or “no need”, this would indicate ineligibility.

What does this all mean for someone who is receiving care?

If someone requires health care which is incidental or ancillary to their need for accommodation, then the Local Authority have a duty to provide it and the cost is means tested.

If the need for health care is the primary need, the NHS should pay.

So if someone is going to a home from hospital they must be assessed for NHS Continuing Care, and if they meet the eligibility criteria the cost of the home should be paid for by the NHS.

If you disagree with an assessment you should challenge it.

If someone is already in a nursing home then you can still challenge the funding decisions.

Often a care home resident’s needs will increase over time so that they become eligible for NHS funding but do not apply for it because they are unaware of the funding rules.

Even if someone has died, funding decisions can be challenged and money recovered for their estate.

How are decisions challenged ?

The responsibility of organising NHS continuing care is held by your local Clinical Commissioning Group (‘CCG’). All initial decisions regarding continuing care will be made by your local CCG. If the CCG does not accept that an individual needs continuing care because they do not believe eligibility criteria are met, their decision can be challenged through a review process.

here are two types of review process, a local review managed by the CCG and if this is not successful an application for review may be made to NHS England which can refer the matter to an Independent Review Panel.

Any local review must take place within 3 months of a request.

Consequences of getting NHS Continuing Care

If full NHS funded care is awarded then the NHS will arrange and fund the care. The CCG will decide where the care should be provided.

Care can be provided in a hospital, a care home, a hospice or someone’s own home.

If it is a care home there is no right to choose the location or the actual home. This may mean that if someone is already in a home, the CCG may not fund that place if it is too expensive. Very often the decision will be made to maintain a person within their current care environment because it is in the patient’s best interests, but there is no guarantee of that. Interested parties and carers should be consulted, but the CCG will make the final decision.

If you receive NHS Continuing Care funding it will affect entitlement to benefits such as Attendance Allowance and Disability Living Allowance.

S117 Mental Health Act - aftercare funding

If a patient has been compulsorily detained in hospital under section 3 of the Mental Health Act (i.e. sectioned for treatment), the NHS and the Local Authority have a joint duty to provide after-care services when the patient is discharged from the hospital.

After-care services under S117 of the Mental Health Act are provided free of charge whether provided by the NHS or Local Authority.

If a patient is sectioned, this therefore has important implications for long term funding of their care.

How Stone King Can Help

The process for obtaining funding for care is often bewildering. It is hard to find anyone who understands the process.

We have extensive experience in obtaining NHS funding for our clients, including securing refunds for estates where the deceased has paid for care for which they should have received NHS funding. We often recover tens of thousands of pounds for people.

We can guide you through all stages of the process:

We can meet with you and review potential eligibility for care.

We can build your case for establishing a primary health need for presentation at panel hearings. We can attend hearings and advocate on your behalf.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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