If you’ve ever sat through an assessment for NHS Continuing Healthcare funding on behalf of a relative, you may well have found yourself arguing with assessors about the difference between a healthcare need and a social care need.
No doubt you’ve also been told that your relatives needs are just social care needs, and that they aren’t ‘eligible’ for any funding.
But what exactly is the difference between a healthcare need and a social care need?
Errors in defining care needs – and defining them as either healthcare or social care are the cause of most Continuing Healthcare disputes and appeals.
People in full time care who clearly require at least some degree of nursing care – and even those who require 24-hour nursing care and who therefore have significant nursing needs – seem to be routinely told their needs are merely social care needs.
The reason for this? It means the NHS can relinquish responsibility for providing (and funding) care. The person will instead be means tested and told to pay for their care. And yet, in the UK, healthcare and nursing care are free.
Families understandably find it exasperating and end up being forced into an exhausting appeal process. What’s worse, the appeal process is conducted and overseen by the very NHS people who have denied the funding in the first place – and who hold the purse strings.
What do the NHS Continuing Healthcare guidelines say?
Let’s look at the National Framework for NHS Continuing Healthcare, page 50 paragraph 2.1, 2.2 and 2.3. These guidelines attempt to clarify the difference between and healthcare need and a social care need:
“2.1 Whilst there is not a legal definition of a healthcare need (in the context of NHS continuing healthcare), in general terms it can be said that such a need is one related to the treatment, control or prevention of a disease, illness, injury or disability, and the care or aftercare of a person with these needs (whether or not the tasks involved have to be carried out by a health professional).
2.2 In general terms (not a legal definition) it can be said that a social care need is one that is focused on providing assistance with activities of daily living, maintaining
independence, social interaction, enabling the individual to play a fuller part in society, protecting them in vulnerable situations, helping them to manage complex relationships and (in some circumstances) accessing a care home or other supported accommodation.
2.3 Social care needs are directly related to the type of welfare services that LAs have a duty or power to provide. These include, but are not limited to: social work services; advice; support; practical assistance in the home; assistance with equipment and home adaptations; visiting and sitting services; provision of meals; facilities for occupational, social, cultural and recreational activities outside the home; assistance to take advantage of educational facilities; and assistance in finding accommodation (e.g. a care home), etc….”
It’s clear that someone who needs full time nursing care does not simply need social care services from a local authority. In addition, it is illegal for a local authority to take on responsibility for providing care to someone who should be receiving care from the NHS.
And yet thousands of people with significant healthcare and nursing care needs are currently paying for every penny of that care – because the NHS has passed responsibility for care to the local authority, which in turn puts the person needing care through means testing.
So if you find yourself in a Continuing Healthcare assessment, and your relative has healthcare and nursing care needs, ask the assessors how exactly they justify saying those needs are social care needs.
The Coughlan case is directly relevant here, too:
Unless nursing care services are “merely incidental or ancillary to the provision of accommodation… and of a nature that an authority whose primary responsibility is to provide social services can be expected to provide” [Coughlan], a person’s care is the responsibility of the NHS – and it should be fully funded by the NHS. Any attempt by a local authority to take responsibility for such care (and certainly if a local authority starts charging top-ups for such care), is likely to be illegal.
Have you come up against this problem in assessments – where health needs are described at social care needs?