Funded Nursing Care: Why decisions may be wrong

Funded Nursing Care: Why decisions may be wrong

Funded Nursing Care paymentsOne of our readers, Jim, has sent us an argument he put together relating to Funded Nursing Care payments.

Jim felt his points may be useful for other families, and so we’ve included them here.

First of all, take a look at paragraphs 21 and 28 of the Standing Rules:

Also read paragraphs 30-32 of the National Framework for NHS Continuing Healthcare.

Jim Warham explains:

————

Funded Nursing Care – Why the Dept. of Health is getting it wrong

Here I argue that the Department of Health’s (DH) approach is legally flawed and that an individual assessed as needing registered nursing services has a primary health need, when properly interpreting the relevant legislation.

This means the person is eligible for NHS Continuing Healthcare (CHC).

The issue concerns the effect of S49 Health and Social Care Act 2001 (S49 HSCA 2001) on the Court of Appeal’s judgment in the Coughlan case, its consideration by the High Court in the Grogan case and the subsequent implementation by the DH.

Firstly we need to look at regulations 21 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (SI 2012/2996). We’ll refer to these simply as the Standing Rules.

This sets out a mechanical, step by step, process to decide whether or not a person has a primary health need. Where a person does not have a primary health need, regulation 28 sets out the test for eligibility for Funded Nursing Care (FNC).

This is the fourth of four steps in the process set out below.

Secondly, we need to look at the Grogan case, because the DH’s approach seems to rely on the High Court’s judgment in that case (paragraphs 30 to 32 of the National Framework).

The Standing Rules – SI 2012/2996 – Regulations 21 and 28

Step 1

The multidisciplinary team (MDT) assesses the needs of the individual. It uses that assessment to complete the Decision Support Tool (DST).

Step 2

From the assessment of needs and the completed DST, the CCG determines both the quantity and quality of nursing and other healthcare services that the individual requires to meet his/her needs.

This could include (general) nursing services provided by the local authority (LA) and/or registered nursing services that are beyond the LA’s remit.

Step 3

This requires the attribution of nursing services and other healthcare services (from step 2) to

(a) those capable of being provided by the LA

or

(b) those beyond the capability of the LA.

In short, those nursing services which can only be commissioned by the relevant CCG.

Given the choice here, the obvious attribution of a supply of registered nursing services (prohibited from LA provision) would be to (b).

On that basis, the individual would have a primary health need and therefore be eligible for CHC. There is no need to go any further.

However, the DH’s view is that registered nursing services should be attributed to (a) and that the “… more than incidental or ancillary…” test applies. (This was the essence of the judgement in the Coughlan case.) Where the supply of registered nursing services (and any other nursing/healthcare services) is merely incidental and ancillary to the supply of accommodation by the LA then there is no primary health need. But that would mean that responsibility for providing nursing services and accommodation falls to the LA.

This is a problem – because the incidental or ancillary test only applies where the supplier of both services is the same person. Where the suppliers are different, (as is the case here – registered nursing services by the relevant CCG and accommodation by the LA) the test cannot apply.

The whole point of the ‘ancillary’ test is to determine whether the minor service (i.e. registered nursing services from the CCG) retains its independence and character. If on the other hand it’s found to be ancillary to a more dominant service (i.e. accommodation from by the LA) it takes on the character of that more dominant service. The DH has taken the latter approach in making registered nursing services part and parcel of a single supply of accommodation services.

However, given the S49 HSCA 2001 prohibition on LA provision, this creates an absurdity.

Step 4

This is the test set out in regulation 28 to determine eligibility for FNC. This can only apply where (at step 3 above) it’s decided that the person does not have a primary health need. In other words that (i) the registered nursing services identified at step 2 can be provided by the LA and (ii) that those services are incidental and ancillary to the supply of accommodation services by the LA.

But both conclusions are wrong, for the reasons given above.

Furthermore, the mere existence of regulation 28 indicates that the provision of registered nursing services was never an ancillary service in the first place. Its purpose, following the DH’s approach, is to unpick the supply of registered nursing services by the CCG from (what has been incorrectly determined at step 3 to be) a single supply of accommodation services.

If the supply of registered nursing services were truly merely an ancillary service then there would be no need for regulation 28. The nursing services would, as held by the Court of Appeal in the Coughlan case, be part and parcel of LA provision and subject to means testing.

The reality is that the provision of registered nursing services is not an ancillary service and that the correct attribution at step 3, above, is to regulation 21(7)(b). Either way, regulation 28 serves no purpose.

The Grogan case

We’ve already seen from paragraphs 30 to 32 of the National Framework that the DH relies on the High Court’s judgment in the Grogan case. But this is misplaced.

The key points in this respect are:

1 The Court noted that, prior to the enactment of S49 HSCA 2001, the provision of registered nursing services could have been lawfully provided by a LA. Following the enactment, the Court expressed concern that when looked at from the LA side of the divide, as it put it, those nursing services previously capable of LA provision would exclude (the now prohibited S49 HSCA 2001) nursing services. It was, quite rightly, concerned that this would disadvantage potential CHC claimants.

2 In response, the DH pointed out that S49 HSCA 2001 would only apply after it was clear that the person did not have a primary health need and that the provision of registered nursing services would be included in the quantitative “incidental or ancillary” eligibility test for CHC (notwithstanding S49 HSCA 2001).

3 The Court accepted this test (looked at from the LA side of the divide) but said that “… this approach must factor in the point that but for S49 HSCA 2001 the nursing care provided by a registered nurse could have been provided by the LA applying the Coughlan test…”, (emphasis added).

Clearly, the Court saw (because of the prohibition on LAs providing registered nursing services) that a “but for S49” point was essential. Following this rationale the same must apply when the CHC test is looked at from the opposite (NHS) side of the divide.

But there is no reference in the Rules, or its predecessor, to any “but for S49” or deeming provision.

As a result, it follows that regulation 21 must be construed with regard to the effects of S49 HSCA 2001 and, in doing so, the conclusion reached that the provision of registered nursing services is beyond the capability of the LA – and so indicates a primary health need.

On the face of it, it appears that those drafting the 2012 Standing Rules have not appreciated that when looked at from the NHS rather than the LA side of the divide the absence of a “but for S49 HSCA 2001” or deeming provision is going to produce a totally different outcome to that prior to the enactment of HSCA 2001.

It is clear that individuals who have been assessed as requiring the provision of registered nursing services (and FNC) have been wrongly charged by LAs for the accommodation needed to provide of those nursing services.

44 Comments

  1. Richard 4 months ago

    This just in from the LA without any apparent irony.
    “The community care assessment conducted in respect of your mother, concluded that she required an element of nursing care above and beyond social care needs. This is referred to as Funded Nursing Care and is very common. Where assessments determine that a person’s primary need is that of social care, but that nursing care is also required, then the funding can become joint. That is why we have identified a placement in a local nursing home. The local authority will fund the primary need which is for social care, and the funded nursing care is paid for by XXX CCG on top of that. This had been agreed for your mother, and she could have moved to YYY Nursing home many months ago under this joint funding arrangement.”

  2. Richard 5 months ago

    welsh case but anyway here it is
    http://www.brickcourt.co.uk/news/detail/court-of-appeal-divided-over-meaning-of-nursing-care-by-a-registered-nurse-under-s.49-of-the-health-and-social-care-act-2001
    [Ed: note that all information on Care To Be Different relates to the care funding system in England.]

    • Chris-G 5 months ago

      Richard. Welsh case or not, it dealt with aspects of many of the UKs health regulations and Acts of Parliament…… It also confirmed my long held contention that if only my mum is in receipt of CHC funding in a 50 bed home, why is anyone else getting that nurses services? My mum’s CHC is patient centred and as such, a nurse should be on hand 24/7 for her care alone……. If you get me.

      • Richard 5 months ago

        Chris a point well made

  3. Irene Irvine 6 months ago

    Richard. It’s really excellent. I watched it several times, jotted down notes and incorporated his points in my response to the Health Ombudsman. If I ever win my case it will be very largely down to this video and Bernie Crean ‘s article on the Care Act. That is not meant to diminish the help, support and advice from this website or course.
    Good luck

  4. Irene Irvine 6 months ago

    Sorry. Re above. I should have asked is the FNC there to provide for the care that is incidental and ancillary to the provision of accomodation etc?

  5. Richard 6 months ago

    IMHO FNC is a giant red herring invented to muddy the waters;

    1. social needs only = self fund / la means tested paid for care

    2 social care with nursing needs incidental or ancillary etc = self fund / la means tested paid for care

    3 Health needs = chc care paid for to meet the assessed needs if those needs cost £1.50 , £150 a week or £150,000 a week

    de factoe there is no necessity for fnc to have been conjured into existence it is smoke and mirrors largely to confuse folk

    “oh well this is what we’re entitled to let be grateful for something……”

    • Melanie 6 months ago

      I agree and this mirrors my experience – my Mum met CHC 3 years ago and was moved to nursing home that was able to meet her needs. Her needs have increased and yet at later reviews recommendation to FNC. The decision for this was made before we even started and in clear contravention of every piece of evidence – the clear impression I got was they wanted to reduce budget – at any cost and that we should be “grateful” for the crumbs of FNC. Assessors totally unfamiliar with Coughlan. My view is that FNC is an invisible barrier designed to make people believe that they are receiving some sort of funding. They tried to tell me that it relates to the amount of nursing input completely ignoring picture of “health needs” and how these are met

    • Chris-G 5 months ago

      Agreed it is a sop to make patient reps give up when the funding is offered because in the early stages of involvement, they often think that full funding is what is being offered.

  6. Irene Irvine 6 months ago

    I have never been able to understand the parameters dividing CHC from FNC. My case is currently with both the local government ombudsman and the Parliamentary Health Ombudsman and I am vigourously pursuing the legal limit of care that an LA can provide. Luke Clements video focuses on needs being beyond the limit of social care then by default they are the responsibility of the NHS as is stated in the NHS act of 1946 and the Nat Asst act of 1948. How can FNC therefore fit in with this? Any help would be gratefully appreciated since I am now almost at the end of the line with my case as the next step is court.
    Thanks

  7. Richard 6 months ago

    At recent public CCG board meeting we put the argument as made by Jim and got this rather short response !

    Response provided by: CCG board

    “The provision of registered nursing care does lie beyond the responsibility of a local authority and it is for this reason that the NHS provides Funded Nursing Care. The provision of Funded Nursing Care only occurs once a person has been assessed in terms of their eligibility for NHS Continuing Healthcare. Therefore, Funded Nursing Care is only considered at the point that a primary need for health care has been assessed and ruled out and as such Funded Nursing Care cannot indicate a primary need for health care.”

    • Chris-G 6 months ago

      This is where it appears to fall down. If there is a DOLs regarding the resident, then how can, even the lower cost, Funded Nursing Care be given elsewhere? The resident is not permitted their liberty to be elsewhere. Their representative cannot remove to provide care for them either. As such, how can the accommodation be, in the terms used, ancillary to the need for even that often poorly assessed and artificially limited need for registered nursing care? There is some double speak within the framework regrding DOLs but it is interpreted as if DOLs is irrelevant and that is not what is written. Of course there is also the phrase ‘not otherwise available to them’ in regard to accommodation and CHC funding. My mum has her own home, ergo she has somewhere else ‘available’ to reside but cannot do so under NHS medical advice and of course she remains under DOLs protocols as a matter of Council restriction to her liberty. Ergo, how can her need for accommodation that is not her own home, be ancillary to her need for nursing care? How can the restriction of someone’s liberty be at their cost? Why don’t convicted prisoners and sectioned NHS inmates also have to pay for accommodation? After all, many of them own houses and have substantial bank accounts. So always ask. ‘Can my loved one be adequately cared for by me and my family, in their own home?’ If the answer is no, (at meetings, often said to be ‘inadvisable’), then how can their hollistic care needs as described in the Framework, (social or medical), FNC paid or unsupported, be ancillary to the accommodation?

    • Jim 5 months ago

      Richard – thanks for the feedback. The CCG’s response simply rehearses its interpretation of regulation 21 of the Standing Rules which is subject of the challenge in this article. It makes no attempt to engage with argument or to put forward any counter arguments. This is because, in my view, there aren’t any. It is clear that – as a result of the S49 HSC Act 2001 prohibition – the provision of registered nursing services is a S3(1)(c) NHS Act 2006 service. By concluding that there is no primary health need, the CCG is taking the view that the provision of registered nursing services is incidental and ancillary to the provision of accommodation by the local authority (LA). But the provision of nursing services can only be incidental or ancillary to the provision of accommodation by a LA where (a) those services are capable of LA provision – i.e. nursing and other healthcare services other than registered nursing services AND (b) that those services are no more than incidental or ancillary to the provision of that accommodation. The provision of registered nursing services doesn’t get past (a) and it follows there must be a primary health need. Regulation 28 which provides for FNC is otiose. If you’re making the argument set out in this article, its important to put it in writing and to insist on a written response and that the points made are properly addressed. In doing so you need to be v. assertive and tenacious in order to secure a positive outcome.

      Finally, Chris refers to NHS guidance and the High Court’s decision in the (Welsh) Forge case. The inference to be drawn from what is said in the guidance is that the FNC payments constitute third party consideration for a single supply of accommodation services of which the registered nursing services is a constituent part. But any such inference is, in my view, misplaced. For the sake of completeness, the guidance ought to have said that the CCG contracts with the care home (which employs the registered nurses) for it to provide the CCG with registered nursing services which are, in turn, provided by the CCG to the individual under S3(1)(c) NHS Act 2006. This view is supported by the High Court’s conclusion in the Forge case. The Court agreed with Counsel for the (Welsh) Local Health Board (LHB) that “.. a LHB provides nursing services to a care home resident pursuant to S3 of the 2006 Act..”. It went on to say that “… the relevant LHB is responsible for providing (and, if provided by the care home itself, paying for) such a nurse…”. So either the LHB places its own employees – registered nurses – in the care home or it sub-contacts the work to the care home. There is, in this respect, essentially no difference between the Welsh and English NHS Acts. If it wasn’t already clear enough, the Court’s conclusion adds weight to the argument made in this article. The (FNC) payments made by the CCG constitute consideration for the provision of registered nursing services by the care home to the CCG. The services have nothing whatsoever to do with the provision of accommodation services by the LA and cannot be incidental or ancillary to it. Furthermore, it would be unlawful for the care home to make any charges to the individual for nursing services which fall under S3 NHSA 2006.

  8. Ann Bright 7 months ago

    My husband qualified for FNC whilst in a care home and we were to fund the Social Care element. Only his pensions., all of state and half of a small private pension were taken but still left me with a pittance to live on £68 per week not deducting food or insurances. Our problem we always operated from a joint pot it was never his or hers and we had bought a new car. As my husbands mobility deteriorated and his cognitive powers through Ataxia and dementia I learnt to drive aged 62 we had decided on a new car to last us but the loan to cover this takes a lump out of my state pension. The assessment did not take this into consideration. I think they would happily accept if I were to sell the car and shoot the dogs so I didn’t have to feed them. My husband is incontinent and now after three months in care has virtually no mobility, I am bringing him home.

    • Chris-G 7 months ago

      Ann Bright, I would argue any pre existing commitments made jointly. They were commitments to a course of action made by your husband before the need for council assisted care. If the other household bills are in joint names I might argue that aspect too, especially as the NHS has said that your husband is not ill, or if he has lost funding, then he has got better, then of course in this idiotic regimen, any commitment that he made would of necessity need to still be in place for the (imaginary) day that he returns home. Sorry if that hits a nerve but can you see the logic?

  9. Richard 7 months ago

    Posted Pamsday and https://www.youtube.com/embed/YaMXowPWxis [Ed: this is from the very informative website http://www.nhscare.info] for our local CCG to compare MIL’s care needs firectly with Pamela Coughlan. Their replies or lack of are below:

    Thank you for your messages relating to Ms. Coughlan’s case. I have passed these to our chief executive, chair and director of commissioning for their information.

    I will seek their response to why this case is different to Mrs Hs.

    Best wishes

    L

    Dear

    In response to your query. We are familiar with the Coughlan judgement as the principle of “primary health need” is now embodied in the National Framework for NHS Continuing Healthcare, first published in 1997. In Mrs H’s case, an assessment has been carried out in accordance with this framework, the outcome being that Mrs H does not have a primary need for healthcare and does not meet the criteria for NHS Continuing Healthcare. This can, of course, be challenged through an appeal process, firstly at local level and then through NHS England.

    Best wishes, L

  10. Vita Falbo-Ellis 8 months ago

    Hi, My mother-in-law was granted Continuing Healthcare (CHC) funding in a nursing home. We have now been asked to provide a top-up even though the nursing home in question is on our local authority’s list and there are a number of beds blocked for CHC patients. Any advice? Thank you

    • Author
      Angela Sherman 8 months ago

      Vita – CHC is provided by the NHS and top ups are only relevant to local authority funding (not CHC). Use some of the points on this page to help you argue against paying those top ups: http://caretobedifferent.co.uk/care-home-top-up-fees/ Top ups for CHC are not allowed in law.

    • Chris-G 7 months ago

      Documentation that I have read, disallows even the council from imposing top ups from anyone other than the patient. They would be trying to get such fees legitimately during their financial assessment of that patient anyway. To require more money from outsiders if the patient cannot pay is wrong…… The council is supposed to make up the short fall.

  11. Ian Grimmett 8 months ago

    Unfortunately the lady for whom we were challenging her CHC entitlement passed away this morning.
    However, we are continuing our pursuit of the complaint that is lodged with the Ombudsman, her first CHC refusal, and her second, last month.
    It’s not the money, it’s the principal.
    The fact that these people ignore legislation and their own guidance is a disgrace and we will not give up the fight for her, even in her absence.
    IanG

    • Author
      Angela Sherman 8 months ago

      Ian – I’m sad to hear that the lady you were fighting for has died. I imagine it’s a very difficult time. Many families would I’m sure agree with you that it’s the principle at stake here, not the money in itself. Wishing you well as you continue to pursue this. You’ve asked if anyone is successful in securing CHC. The answer is yes – and we hear from families every week who have succeeded. It’s not an easy battle, though, and often requires a good deal of stamina and perseverance. This comes, of course, at a time when a family needs to be spending time with the person they love, and who may be dying. It can be a horrible and inhumane process, but I wish you and your family well. If you feel able to , do continue add comments about your progress.

    • Richard 8 months ago

      Sad to hear your news I agree its the principal the system is broken corrupt and self serving and in need of fundamental reform

    • Chris-G 7 months ago

      Good on you Ian. All the best.

  12. Ian Grimmett 8 months ago

    Hi all. We are in the twelfth month of attempts to get Continuing Healthcare (CHC) for an elderly friend for whom we have Power of Attorney.
    Throughout this time we have been subjected to proven lies during assessments, withholding documents, etc. etc.
    We are at the Omdudsman stage regarding a complaint against the local Hospital and care services and clinical care group.
    All of them have continually failed to abide by the National Framework and all other regulations that apply.
    They have an unbelievable arrogance in the cavalier way that they carry out the CHC process which they disregard and cherry pick to suit themselves.
    It seems that whatever argument you put forward, they quote back vague arguments and dismiss what you say completely.
    If your argument is successful in getting you CHC please let me know, it would be appreciated.
    This whole thing is a national disgrace and those involved in the disregard of the process should be ashamed at themselves, problem is, they do not care, their only mantra is to avoid paying CHC at all costs, in any way, whether or not it abides by the law.
    This is occurring in hundreds of cases country wide and there is the problem. To agree to CHC would bankrupt the health authorities and trusts.
    In our, and we are sure many other cases, our friends needs are beyond that of Coughlan but it is completely disregarded.
    Coughlan’s needs, relatively speaking, were low so, effectively, all whose needs exceed hers should qualify for CHC.
    What is the point of case law if it is continually and repeatedly ignored by the so called professionals who are ther to be allegedly “person centred” applicants.
    Ian G

    • Chris-G 7 months ago

      Yes Ian, doubtless one of those platitudes is to attempt at every domain to insist that the identified nursing care needs are actually ‘needs of daily living’. At Independent Review we argued that as it is the entire needs that form a Primary Health Need, then for a MDT lead to keep doing that was incorrect procedure. The IRP chair stated her agreement and admonished the CCG reps at the hearing. My problem with this phrase is that it is nonsense. The same needs are provided in hospital free at the point of need. So why not within a nursing home at the point of need? There again I have long argued that a so called social care need, if it is complex and/or intense and/or unpredictable becomes a Primary Health Need. To explain further. Social care within the framework describes ‘provision of meals’. Feeding all meals to an adult is oh so much more different than the framework’s definition. To need to feed an adult is a Primary Health Need. And an IRP agreed with that assessment in 2015. There again again……. The framework is designed to discover what? A Primary Health Need or is it to prove the almost imaginary and barely listed so called ‘Social Care Need’?

    • Ian Grimmett 7 months ago

      The lady had a Multidisciplinary Team (MDT) meeting in August at which the local authority (LA) rep made extraordinary remarks and stated during the meeting that our friend would not get CHC even before the decision had been made. We had a local resolution meeting in November, a few weeks after the lady had died.
      We had requested to Record the meeting which we did. We had requested that the members of the MDT be part of the local resolution meeting. They did attend apart from the LA rep. The LA refused to send any rep. At all.
      We have found that at no time has the LA carried out an assessment regarding the lady we are acting for, in relation to LA limits. There is no report or assessment at all. There were many discrepancies at the local resolution meeting. We are expecting a report in regard to that and then it will hopefully be onwards to an IRP at which we have things to present. Our original complaint against the hospital back in 2025 is with the ombudsman. We forwarded James argument re FNC being a primary health need, to the head of the CCG, the LA adult care services f(no response) and we continue to challenge at every point. It is obvious that from the initial failures in CHC back in October 2025, that lies, inaccuracies and failures of process continue and the more mistakes they make, the deeper the hole they did for themselves.
      We have one thing on our side and that is, what we have said and written is accurate snd therefore there are no weaknesses, unlike the local CCG , LA etc. Now, they rarely respond as they know that they cannot take back was they have said and done by not following the National Framework. The whole thing needs a new legal challenge, we just wish we had the finances to do it. We certainly have the desire.
      IanG

  13. Gillann 8 months ago

    It has been very enlightening reading all your comments. We have our first meeting this week about our mother. She was living at home me with four carers coming in to support her every day, different times of course!! She had repeated urine infections at home and then became very ill and was hospitalised, it turned out she caught e.coli in hospital. Mom is registered blind. To shorten a long story she is now totally off her feet is doubly incontinent, has lost weight. We also found out, by chance I might add, she has a mass in her colon but we decided she really wasn’t strong no enough to have an anaesthetic to do a biopsy to confirm if it was cancer or not. We are told she probably won’t get Continuing Healthcare (CHC) as she does not need nursing care all her needs can be met in a care home. Having read all of your emails and Angela’s wonderful comments please may I have some pointers to take into this meeting on Thursday. I forgot to say only this week we were told by an ancillary worker that mom has an Ebls when we asked why the staff always gowned up!!

  14. Adrienne 8 months ago

    My husband has dementia and following a brain bleed (sub dural haematoma) is now doubly incontinent. He underwent the Decision Support Tool with the nurse & social worker. As a former nurse myself, I felt that whilst he would not be eligible for continuing nursing care – he is at home with me, he should be considered for a joint care package as incontinence is under the purview of the NHS.

    I asked the nurse why he was not considered for a joint package & was told that the local authority does not ‘do’ joint care packages.

    Is this legal?

    • Author
      Angela Sherman 8 months ago

      Adrienne – that sounds like nonsense from the nurse. Take a look at the section on joint funding in the National Framework guidelines. Keep in mind, though, that any suggestion of joint funding should be scrutinised carefully, because if a person has sufficient health needs for the NHS to contribute towards a joint package, the question to ask is why has the person not been found eligible for full NHS Continuing Healthcare funding.

  15. Ann 8 months ago

    The PCT are required to re assess any patient if their condition has deteriorated or is degenerative. Filling in the Decision Support Tool form gives you power as medication and all the things written you do yourself. It is a real heartache that people have to go through all this when their loved one’s are so ill and you have to fight for justice. It took over a year for me to fight my case having 5 establishments involved (or trying to) The PCT. The NHS. The local council and a part of social care. Social services. The care home boss told me noone wins CHC so give up. Was told I was going down the wrong road by a scottish lady so assured her you take the low road and I will take the high road. Told her I will of course let her know when my father was approved CHC. Yes what nearly killed me, my father was awarded CHC without me even having to go to an appeal.I was due an appeal that day and just got it in on time. My MP rang them and told them I had posted it recorded delivery – was also involved as was my GP’s support. Blessings xx

    • Author
      Angela Sherman 8 months ago

      Ann – keep in mind that it’s Clinical Commissioning Groups (CCGs), not PCTs, that are responsible for Continuing Healthcare now.

      • Ann 8 months ago

        Angela Thank you was over three or so years ago when it was the PCT. Another change!! Good luck to all for justice. xx

  16. Janet 8 months ago

    My mom has a number of ailments including advanced parkinsons. She is in hospital and had a Continuing Healthcare (CHC) assessment in April which we appealed. It has gone through the first stage of appeal and is due to go to the second stage. The hospital want to discharge mom and are threatening “eviction” despite the fact she is dependant upon oxygen. We have asked for a fresh CHC as the last one over 6 months old but they refuse to do one as they want to complete the appeal using up to date info. Is this right as it seems to be a bit of a fudge to me?

    • Author
      Angela Sherman 8 months ago

      Janet – your current appeal relates to the time of the previous assessment. It sounds as though the CCG is trying to use current evidence for that, hoping it will weaken your case, however they should be looking at health and care needs relating to the previous assessment. If care needs have increased, a fresh assessment should most definitely be carried out and this should happen before your mum is discharged: http://caretobedifferent.co.uk/paying-for-care-between-hospital-discharge-and-funding-decision/

  17. Ian Grimmett 9 months ago

    Jim.

    Thanks for the information which is very interesting and we will take it on board and hassle the life out of those that choose to ignore processes, guidance, case law etc.,
    We take it that the CHC claim you were involved with was successful?
    When you realise what all abbreviations and references mean when looking at exchanges between people it makes you realise how many countless hours one has spent fighting for justice which really should not be hard.
    Onward and upward.
    Kind Regards.
    IanG

  18. Ian Grimmett 9 months ago

    Hi all. We are in the twelfth month of attempts to get Continuing Healthcare (CHC) for an elderly friend for whom we have Power of Attorney. Throughout this time we have been subjected to proven lies during assessments, withholding documents, etc. etc. We are at the Omdudsman stage regarding a complaint against the local Hospital and care services and clinical care group. All of them have continually failed to abide by the National Framework and all other regulations that apply. They have an unbelievable arrogance in the cavalier way that they carry out the CHC process which they disregard and cherry pick to suit themselves. It seems that whatever argument you put forward, they quote back vague arguments and dismiss what you say completely.
    If your argument is successful in getting your CHC please let me know, it would be appreciated. This whole thing is a national disgrace and those involved in the disregard of the process should be ashamed at themselves, problem is, they do not care, their only mantra is to avoid paying CHC at all costs, in any way, whether or not it abides by the law. This is occurring in hundreds of cases country wide and there is the problem. To agree to CHC would bankrupt the health authorities and trusts. In our, and we are sure many other cases, our friends needs are beyond that of Coughkan but it is completely disregarded. Coughlan’s needs, relatively speaking, were low so, effectively, all whose needs exceed hers should qualify for CHC. What is the point of case law if it is continually and repeatedly ignored by the so called professionals who are ther to be allegedly “person centred” applicants.
    Ian G

  19. Irene Irvine 9 months ago

    Jim, this seems to be a brilliant argument and I am just compiling this into my own case but may I just ask—–did you win your own case with this argument? Based on my experiences so far I feel that my CCG will dismiss this with some counter argument that it’s been superceded by some later Act, or that’s it is not now relevant, or simply ignore it. But many thanks for the time and trouble you have taken writing this. Much appreciated.
    Irene

    • Jim 9 months ago

      Irene – the arguments were made in the case I was involved in. But in response to this, the CCG (the Chief Officer no less) reviewed the facts and found that due to “new evidence” (and which there wasn’t any) the person was, after all, eligible for CHC. It must be understood that to engage with the arguments and lose is going to be very costly for the Dept of Health. That is why, CCGs will, in my opinion, dodge the issue by revisiting the facts and, essentially, make a new finding of fact. From their perspective, its better to sacrifice one case than to risk opening a can of (very expensive ) worms. That is why, in my original (“Ombudsman” article) posting I suggested that you identify the Chief Officer of the relevant CCG and write to that individual (by e-mail or recorded delivery so that they can’t say that they didn’t receive it) setting out the arguments as per this article (above) – c.c to Director of Social Services of the relevant LA. Its important that you keep the pressure up and intensify it if need be. If points are ignored then cut and paste them into your next letter/e-mail reminding them of this and insist on an answer.

      You refer to possible counter arguments. I’d be delighted to hear of any and what they are. If a view is taken that the arguments are not relevant then the CCG (or whoever) has an obligation to explain its reasons in reaching this conclusion. But what I would be clear about is that “ignoring” the argument is not an option.

      What I’ve referred to as an error in the Standing Rules (effective 1 April 2013) replicates that made in its predecessor – the NHS Continuing Healthcare (Responsibilities) Directions 2007 (effective 1 October 2007. Finally, you mentioned a couple of MPs being involved so, presumably, they will be doing something.

      • Mary 8 months ago

        Hi
        I’m reading all of this with great interest. I’m wondering if anyone can advise me. My mum was assessed in hospital before moving into a care home. She has advanced lung cancer and dementia. She was awarded FNC.
        However I moved her to a care home in another area and they are refusing to pay the Funded Nursing Care as they say mum is not in a nursing home. My mum is living in the dementia unit of a nursing care home but has access to nursing care. They just come upstairs! The nurse assessor told me I have to move her downstairs if I want the funding.
        This seems ridiculous, she’s settled where she is, is getting frailer by the day, has got weeks to live, how can it be right that I have to move her?
        Any advice would be very welcome, thanks.
        Mary

      • Richard 8 months ago

        Not been too impressed with MP’s involvement so far. Pretty words but no practical use.

      • Chris-G 7 months ago

        Jim, Similarly it is likely why we have won three Independent Reviews. And are facing another two. Because, each was run by Barristers, they finally understood the ramifications of our threats to take matters to court should we be unsuccessful. This, even after refusing to hear the logic of several another anomalies at first. Instead I phrased it as ‘Procedural Error/Failure’ complete with references to the Framework and the applicable law. They had to listen then because it was all going on the stenographer’s record and as such available in a court as evidence. On time we mentioned that after using an incorrectly formed MDT (sole NHS nurse assessed and removed funding), to assess, we argued that the Independent Review Panel should not have even been sitting because there had not been ‘an appropriate re-assessment’ of my father in law’s CHC entitlement for example. As such it was not their role to review an unlawful decision. In my mother’s similar case and even before we had convened, the Barrister chair suggested (with almost a wink), that it would be in my mum’s interest to continue. She won again and the NHS really took a verbal kicking during the hearing.

Leave a reply

Your email address will not be published. Required fields are marked *

*

2100 characters max. All comments are moderated in line with our Acceptable Use Policy and our Terms of Website Use.