Andrew Hill AF Hill Law 020 3612 4734

NHS CONTINUING HEALTHCARE FUNDING

NHS care funding and reclaiming care home fees

If you need ongoing care your care fees may be paid in full by the NHS regardless of your assets if your needs are demonstrably:

• Complex, intense or unpredictable; &
• Not incidental or ancillary to the accommodation that social services are
  under a duty to provide;
• Not of a nature typically provided for by social services

This form of care funding is known as NHS continuing healthcare (also sometimes referred to as NHS continuing healthcare funding and NHS continuing care funding). It can cover nursing or care home fees or the cost of your care at home. Unfortunately, NHS care funding decisions are often arbitrary, and many people do not receive NHS continuing healthcare even when they are eligible.

Challenging NHS care home funding decisions

There are many reasons why NHS care funding decisions may be wrong. If you have been denied NHS funding and are paying for your own care you may be able to reclaim nursing home fees through a legal challenge.

Challenging a care home funding decision retrospectively

If you believe a relative who has now died was wrongly paying for care home funding, you may be able to bring a retrospective review.

What is continuing healthcare?

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.

Basics of NHS Continuing Healthcare funding vs ‘social care’ funding

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, an individual’s 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 a person’s 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.

NHS CCGs and the national framework for NHS Continuing Healthcare

Historically many older, vulnerableor 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.

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.

How need is assessed – Continuing Healthcare criteria

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).

So, what should you do to ensure the right NHS continuing healthcare decision is made?

Request a healthcare needs assessment

Make sure the NHS assesses healthcare needs at an early stage – preferably at the time of, or before, social services assess 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 a person 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.

Check the 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 an individual’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:

• Does it take into account supervision or specialist mental health nursing requirements as a result of dementia or Alzheimer's?
• Is a need defined as moderate when it should be high, severe or priority?
• Has the assessor under scored a need because it is well managed by the carers?

Have your say

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 an NHS panel at a closed meeting.

Get specialist advice

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.

Request reassessments

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.

Investigate all possibilities

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.

Top Tips: Success in Retrospective NHS Continuing Healthcare Cases

The news of NHS England’s deadline of March 2017 for Clinical Commissioning Groups (CCGs) to deal with all outstanding retrospective NHS Continuing Healthcare (NHS CHC) applications has sent many CCGs into a hive of activity. People who have waited years for a decision on their relative’s NHS CHC eligibility for a previously unassessed period 2004-2012 have been inundated with requests for information from the NHS, often with short deadlines for reply.

How can individuals ensure success in their long-neglected retrospective NHS CHC cases and prepare themselves for the sudden interest from CCGs?

Know who you are dealing with

Most CCGs have their own retrospective NHS CHC departments to process applications but many, overwhelmed by the number and complexity of cases, have outsourced them. Commissioning Support Units (CSU) and private companies such as Capita and Bray Leino Broadcare have been appointed by CCGs to administer retrospective NHS CHC cases. You may well receive correspondence from organisations appearing to have nothing to do with your relative’s NHS CHC eligibility. CCGs are supposed to notify the family that another organisation is handling their case, but many do not. If your case has been taken over by another organisation make sure you know who and where to send additional information, especially if deadlines are short.

Meet deadlines

With their own time limit imposed by NHS England, CCGs rushing to process retrospective NHS CHC cases are only too keen to throw out applications where deadlines are missed. Having waited two or three years for the CCG to gather medical and care notes from hospitals and care homes and assign the case to a nurse assessor, you may be sent a Needs Portrayal document and a demand for comments within two weeks. These deadlines are imposed by the CCG for their own benefit so, if you aren’t going to be able to send your information by the date set, let the requesting organisation know and ask for an extension.

Evidence, evidence, evidence

Many retrospective NHS CHC cases that should have a reasonable prospect of success are found ineligible through lack of evidence. Care Homes shut down, GP surgeries move, or merge and care and health records go missing. If you have notes from your relative’s care home or hospital stay keep them safe. Read through the care records so you know what you are looking for when comments on a Needs Portrayal are requested. NHS Continuing Healthcare eligibility is especially difficult to establish where the older person was cared for at home. Don’t let the lack of detailed notes on their care needs be the reason your relative’s eligibility is declined by the CCG. If the care agency who visited them at home still exists, ask for a statement describing your relative’s needs and the care given. Prepare and submit your own statement.

Learn the lingo

The language of NHS CHC is complex and confusing but learning it may help you establish your relative’s eligibility for the period under consideration. Become familiar with the Decision Support Tool (DST) document and the domains and definitions so that you can describe your relative’s care needs in appropriate language. Make sure that you read the NHS CHC Framework Guidance which explains what Nature, Intensity, Complexity and Unpredictability are. These central concepts are just as – or arguably more – important than the “scores on the doors” from the healthcare domains.

Be realistic

Your relative may well have self-funded their care home or home care package for a lengthy period between 2004 and 2012, but you need to establish whether they had a primary healthcare need for all of that time. CCGs like nothing better than to ‘screen out’ all but a short period under review. We have clients who are disappointed with only a few hundred pounds refunded, having expected all of the care fees to be reimbursed. Concentrating on a shorter period of time when your relative had a demonstrable primary care need for which you have good evidence is much better than a long, poorly evidenced application which the CCG will find it easy to decline.

What you need to know to overturn adverse decisions on NHS Continuing Healthcare funding.

This factsheet applies to England and is designed to help you understand and challenge NHS Continuing Healthcare (NHS CHC) eligibility decisions where you or a relative have been found ineligible. It explains how to challenge decisions on NHS CHC.

Get specialist help from an expert in NHS CHC

The dispute resolution or review process is complex. A solicitor or other specialist will analyse all the
evidence in order to:

• Advise on your prospects for success in challenging the eligibility decisions
• Analyse the Decisions Support Tool (DST) to identify errors
• Consider all available care records
• Prepare written arguments to support the review/ appeal

The national framework for NHS continuing healthcare, introduced in October 2007 and revised most recently in October 2018, is not prescriptive about the process of dispute resolution, so local NHS Clinical Commission Groups have adopted different procedures. Ask for a copy of the relevant NHS review/appeal rules immediately to ensure you do not
miss any deadlines. There should be two stages:

• Local resolution
• Independent review panel

The dispute resolution process can only address whether the National Framework guidance and the Decision Support Tool have been applied correctly in your case. Concerns about the type of care, or the location of the care package, are addressed by a separate complaints process.

Ask the Clinical Commissioning Group (CCG) to review their NHS CHC eligibility decision – local resolution

Apply for a review of the ineligible decision in writing. The Framework directs that you have 6 months from the date of the decision to challenge it. You should check for any shorter deadlines imposed by the CCG. If you are requesting a new assessment because your relative’s needs have changed and increased since the decision, do not be put off by deadlines. The CCG is supposed to deal promptly with review requests, although the process can take months. The local resolution may involve one or more of the following:

• An nternal CCG panel reviewing their assessment documents
• A peer review by a neighbouring CCG
• A local resolution meeting or local resolution panel which the person, relative or representative is invited to attend

When you are asked to give your opinion on your relative’s continuing healthcare needs, issues to raise include:

• Errors or misunderstandings by the original assessor
• Needs already being met that have been overlooked or under scored on the
  continuing care decision support tool
• Supervision, prompting and other specialist interventions needed as a result of
  dementia or mental health problems
• Evidence/opinion of complex or intense healthcare needs in any recent hospital assessments
  (for instance before being discharged)
• Social services’ care plan or assessments indicating the number and quality of
  care and nursing interventions required and risk assessments
• Your own detailed records giving examples, evidence and anecdotes that demonstrate
  how your relative’s needs in each domain should be scored
• Evidence from any other health or social care professional, if this was not
  provided in the original assessment

Ask NHS England Independent Review Panel to consider the decision if local resolution is unsuccessful

If the CCG maintains its original ineligible decision, you can apply to NHS England’s Independent Review Panel (IRP). You must make this application within 6 months of the date of the CCG local resolution outcome letter. The IRP process is also characterised by long delays and you should be prepared for a long wait.

The IRP has an advisory role and can only offer guidance on:

• The validity of the CCG decision
• Whether the CCG correctly applied the National Framework criteria

The IRP should let you have a bundle of the documents that will be used in considering your relative’s case and should ask you for information about their health needs. However, this information is often only provided a week or so before the hearing. It is advisable to meet your solicitor or adviser well in advance to prepare your written submissions. You can then update the written
arguments when you receivethe panel bundle.

The IRP hearing consists of three people and will normally include a clinical adviser in a non-decision-making capacity. It is a relatively informal fact gathering and decision-making process, unlike a court hearing.

You will generally be notified of a decision in writing within 6 weeks. If the IRP decides the person is entitled to NHS CHC funding, the award should be backdated to cover the dispute period.

Ask the Parliamentary Health Service Ombudsman to review your NHS CHC case

The ombudsman can investigate a limited range of issues, such as:

• Whether a request for a continuing care assessment was unreasonably refused
• Whether the rationale for the decision was fair, clear and based on evidence
• Whether the proper processes were carried out

While the ombudsman’s office cannot make a substitute decision, it can remit the case back to the strategic health authority or NHS for a proper and fair determination.