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We suggest that you start with our free Navigational Toolkit. Alternatively, if you have a question or would like to discuss anything about your situation, please call us on 0345 548 0300 or send us a ‘Talk to us’ request to schedule a free consultation with a trained NHS continuing healthcare adviser.
Following the principles established by the Coughlan judgement (see ‘Coughlan and Case Law’ section), Local Authorities were prevented from providing registered nursing services. Instead, the Department of Health introduced Registered Nursing Care Contributions (RNCC) whereby the NHS paid contributions to residents of care homes with nursing. There were 3 RNCC bands; low, medium and high. The band you received depended on the intensity of your nursing needs which were assessed annually.
With the introduction of the National Framework in 2007 RNCC was replaced by a single payment for all residents of nursing homes, known as NHS-Funded Nursing Care (FNC). Residents who had been in receipt of low or medium band RNCC were automatically moved to the FNC single band, currently paid at the flat rate of £112. Residents who had previously been in receipt of high band RNCC remained on that rate, currently £154.14.
Following a review of the rate paid by the NHS to nursing Homes, the funded nursing care rate has increased by 40% to £156.25 of which will be backdated to April 1st 2016 for individuals who were in receipt of NHS-funded nursing care from that time.
The higher rate of NHS funded nursing care has increased to £215.04 (this is only relevant for those people who were already on the higher rate in 2007 when the single band was introduced).
The new rate is being paid on an interim basis while further work is done to review the element of the rate for agency nursing staff (which could lead to a reduction to the rate from 1st January 2017) and to consult on introducing regional variation from April 2017.
Continuing healthcare is not something that can be ‘claimed’ in the way that one might have a ‘claim’ for compensation over the misselling of financial products, for example. For some people the trigger for an assessment may be a fall or a stroke where long-term care is required after a hospital admission, however there are many circumstances in which a person may require an assessment. If you are not sure whether you will be eligible, we would recommend that you get a Checklist assessment completed to find out.
In theory you should be referred for a Checklist assessment automatically if your health deteriorates to the point where an assessment is necessary and your care is being overseen by a health or social care professional. This does not always happen though and people do sometimes slip through the net, particularly where people are funding their own care.
This is not an easy concept to apply in the context of an assessment which explains why the application of the criteria is open to individual interpretation, even for professionally trained and experienced assessment teams. Essentially, if the majority of your care is to manage your health needs or to prevent further health needs from developing, the NHS has a duty to pay for all of your care needs and accommodation.
So what constitutes a health need? One might assume that a person suffering from dementia who is immobile and unable to wash, dress or feed themselves independently, who requires continence care and the administration of a medication regime by a trained carer would have a primary health need. This is not necessarily so and such needs are often seen as social or personal care needs, although we should be careful not to overgeneralize.
For a fuller explanation please download or request a copy of our free Navigational Toolkit.
In the following years, a number of changes were introduced to the health and social care system which we’ve summarised for you:
1996 – Department of Health provided guidance to England’s 95 Health Authorities to write the first sets of criteria on NHS continuing healthcare eligibility.
1999 – Pamela Coughlan won a landmark appeal case against a ruling that she was ineligible for continuing healthcare funding. Following the Court of Appeal decision, the Department of Health instructed all Health Authorities to review their criteria to ensure it was ‘Coughlan compliant’.
2002 – NHS underwent reorganisation. 95 Health Authorities were abolished and replaced with 28 Strategic Health Authorities (SHAs). Department of Health issued further instruction to all SHAs to agree upon a set criteria within each area.
2002 – Following an investigation into NHS continuing healthcare by the Health Service Ombudsman, the Department of Health again instructed all 28 SHAs to review their criteria and bring it in line with the Coughlan judgement. They were also asked to retrospectively review everyone who had been in receipt of long-term nursing care since April 1996, providing compensation where the criteria had been applied restrictively.
2004 – Each SHA in England were working to their own set of criteria and toolkits which led to what became known as the ‘postcode lottery’, where eligibility was partly dependent upon where you lived. This problem was recognised by the Department of Health and in 2004, they began developing a national set of tools and assessment processes to clarify key areas of contention.
2006 – A further NHS reorganisation saw the 28 Strategic Health Authorities merged into just 10 as well as a significant reduction in the number of Primary Care Trusts (PCTs).
2007 – National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care was launched. All NHS trusts were instructed to fully implement the Framework by October.
2009 – Department of Health issued a revised National Framework in July, following wide consultation since initial launch
2012 – Department of Health issued a revised National Framework in November. The main purpose of the latest revision was to bring terminology in line with the pending restructure of the NHS and incorporate the Department of Health’s 2010 Practice Guidance into the Framework.
2013 – Primary Care Trusts were replaced with a greater number of Clinical Commissioning Groups (CCGs). CCGs become responsible for implementing the National Framework with the NHS Commissioning Board (NHS England) replacing the role of Strategic Health Authorities in commissioning responsibilities and reviewing eligibility decisions.
2015 – NHS England published the Operating Model for NHS Continuing Healthcare which brought together the NHS’ overall approach and aimed to help NHS trusts achieve the best possible assessment and care pathways for individuals. The Operating Model included an ‘Assurance Framework’ to help ensure assessments and care pathways be delivered locally in a fair, efficient and cost effective manner.
2015 – Introduction of the Care Act 2014 which represented the first major change in adult social care legislation for 70 years, but did not change the legal limits of Local Authorities to provide health care. Therefore, the primary health need boundary (NHS continuing healthcare eligibility criteria) was maintained.
A common misconception is that the “criteria for continuing healthcare have changed since 2007”. This is an excuse we have heard numerous times from professionals to justify people suddenly dropping out of eligibility at their annual review when assessments reflect no significant change in their care needs. It is important to note that despite the two revisions to the National Framework in 2009 and 2012, the criteria for eligibility have not changed. Instead, the revisions made adjustments to the toolkits and assessment processes.
Although far fewer continuing healthcare assessments are carried out for people in care homes without nursing than care homes with nursing, assessments must be based on the individual’s assessed care needs, regardless of where that care is delivered or whether the setting is appropriate. Our experience has shown that some assessment teams still struggle to apply this important principle.
In March 2012 the Department of Health announced new timescales for challenges to assessment decisions and cut-off dates for individuals wanting to request an assessment for a previously unassessed period of care, in an attempt to end ongoing requests for retrospective reviews completely. This was the first time timescales had been imposed for challenges to assessments. The announcements meant that:
- If you received long term care between April 2004 and April 2011 but had never been assessed for continuing healthcare you had until 30th September 2012 to request a retrospective review.
- If you had been assessed for continuing healthcare between April 2004 and March 2011 but not awarded funding, you had until 30th September 2012 to appeal that decision.
- If you had been assessed for continuing healthcare between April 2011 and March 2012 but not awarded funding, you had until 31st March 2013 to appeal that decision.
It is worth noting that as a result of the media awareness campaign that followed, Primary Care Trusts were inundated with an estimated 60,000 requests for retrospective reviews and a combined restitution bill of £600million. This has led to significant delays and backlogs within the system.
As long as you have lodged your intention to appeal or requested a retrospective review within the deadlines for the period being assessed, the team at Beacon can help you with the next stage of the process.
The 12 care domains are:
- Behaviour
- Cognition
- Psychological and Emotional Needs
- Communication
- Mobility
- Nutrition – Food and Drink
- Continence
- Skin and Tissue Viability
- Breathing
- Drug Therapies and Medication: Symptom Control
- Altered States of Consciousness
- Other Significant Care Needs
The evidence that is used to populate the DST may include care plans, hospital records, social care records, GP records, daily care records, medication charts and risk assessments. In short, any written or verbal information relating to your needs within the assessment period should be summarised in the DST so that the assessment team (MDT) are able to make a fully informed recommendation about your eligibility for continuing healthcare. Financial records should not normally be included because eligibility for continuing healthcare is not means tested and should be free from financial influences.
For a more information about the DST please download or request a copy of our free Navigational Toolkit.
The principle of MDT assessments goes even further. Ideally, the MDT who provide information for the completion of the Decision Support Tool (DST) should consist of all health and social care professionals who are knowledgeable about your needs. That same MDT should be involved in making a recommendation as to whether or not you are eligible for continuing healthcare.
So, although CCGs are allowed to only use two health professionals from different healthcare professions, strictly they should use all the health and social care professionals currently or recently involved in the delivery of your care.
Secondly, eligibility is based upon the presence of a primary health need which is established through an in-depth assessment process in which a multidisciplinary team assesses the totality of your needs. Until this process has taken place nobody can unilaterally decide that an individual will or will not be eligible.
If you receive care in your own home it may fall to your GP, social worker or district nurse to ensure the appropriate assessments have been carried out. In theory this should mean that nobody falls ‘through the net’ however in reality, appropriate referrals are not always made by health and social care professionals which means many people may have been in receipt of nursing care for years but have never been assessed for continuing healthcare.
If your relative/friend has never received a continuing healthcare assessment and you think they should have please see the question ‘4. How do I claim continuing healthcare?’ above or contact us for further information.
Depending on the progression of the illness a person with dementia, Parkinson’s disease or any other disability or illness will present with a number of health and social care needs, some of which may well be intense, complex and/or unpredictable. If any one particular health need or a combination of those needs is assessed as being of an intensity, complexity or level of unpredictability that means their primary need is for health, then they will be eligible for continuing healthcare.
The National Framework is absolutely clear about this issue and makes provisions to ensure that decisions regarding eligibility are free from budgetary and commissioner influences. Beacon’s caseworkers have dealt with cases in the past where commissioner influence on decision-making panels had clearly occurred. In each case our challenge to this procedural failure was upheld and the assessment process started again.
This does mean that it is possible for individuals to drop out of NHS funding at a later stage despite presenting with very similar needs.
If you are in situation whereby eligibility for continuing healthcare is being withdrawn, it is important that you request a thorough explanation in writing from your Clinical Commissioning Group as to why they believe you are no longer eligible. If you disagree, you can challenge that decision.
In any case, if you are in receipt of either AA or DLA when you become eligible for continuing healthcare it is advisable to contact the AA and DLA units on 03457 123456 to inform them of the change.
Beacon’s caseworkers have successfully appealed hundreds of continuing healthcare cases where the individual was wrongly turned down for continuing healthcare funding, resulting in restitution of millions of pounds for our clients. No two appeals have been the same and unfortunately there is no magic formula for winning an appeal. For over 10 years we have been building up a wealth of knowledge about how to challenge procedural failures, the type of information that is required in order to win a case and the how that information should be presented.
Our free Navigational Toolkit contains detailed advice about how you can prepare for your assessment or that of a relative/friend, in order to give you the best chance possible of success. It will also help you to navigate the appeal process which can be a daunting experience if you have not been through it before. The Navigational Toolkit can be downloaded using the form at the top of this page.