Everyone who receives full time care and who has health needs should be assessed for full NHS Continuing Healthcare funding.
However, most people who need full time care are told they have to pay for their own care, and many people find that they are assessed first by their local authority – to look at their financial means.
This is the wrong way round.
Despite what health and social care people may say, you don’t necessarily have to pay for care when you go into a care home – or when you have full-time care at home.
If you have health needs and your local authority does a means test before you’ve been assessed for NHS Continuing Healthcare funding, this puts this local authority in a potentially illegal position and any subsequent care fees charged could be illegal.
But how can you back this up when you’re speaking to Social Services?
Here are some suggestions:
The fundamental principle of healthcare in the UK is that, no matter how old you are, if you need health care or nursing care, you do not have to pay for it.
- The National Health Service Act 1946 outlined this clearly.
- The 2006 National Health Services Act did the same.
- The new Health and Social Care Act 2012 also preserves it.
- The new Care Act makes it very clear that people should be considered for NHS Continuing Healthcare funding before any financial assessments are carried out.
The fundamental principle has not changed.
It must be proven that a person does not have a ‘Primary Health Need’ before they are means tested or asked to pay for care – and to do this there must be an NHS Continuing Healthcare assessment first.
A social worker or local authority/council representative must be involved in the NHS Continuing Healthcare process if it appears that there is any chance a person may be eligible for funding.
The NHS Constitution
The NHS Constitution for England states that (amongst other things):
- access to NHS services is based on clinical need, not ability to pay, and that NHS health services should be provided irrespective of the patient’s age. This applies just the same to an elderly person needing full time care.
- the NHS must respect human rights. This includes not taking away a person’s entire personal assets in exchange for healthcare.
- NHS services are free of charge except in limited circumstances sanction by Parliament – not when NHS Continuing Healthcare assessment teams decide to deny funding.
- access to free health services should not be refused on unreasonable grounds. If health and social care workers have not been properly trained in the legal framework in which they operate, and as a result wrongly force you to undergo a financial assessment, these are certainly unreasonable grounds.
- you have the right to receive care and treatment that is appropriate to you and meets your needs
- you should not be unlawfully discriminated against on grounds of age.
What goes wrong?
Many people feel that the NHS Continuing Healthcare assessment process has little to do with the free healthcare we are entitled to in law and that it is instead financially-motivated. A complex web of assessment procedures and eligibility criteria has been fabricated to make accessing full NHS funding for people in full time care difficult.
Many care funding experts believe that the Continuing Healthcare assessment framework is not supported in law, and yet NHS ‘assessors’ and decision making panels seem to take on the role of judge and jury about who will receive NHS care, when in fact the principle of healthcare free at the point of use has never changed.
One of the most well-known court cases in NHS Continuing Healthcare is the Coughlan case. The outcome in this case is just as relevant now as when it was heard at the Court of Appeal in 1999.
Before a relative needs care, most people believe they can trust the health and social care authorities to give them accurate and truthful information about paying for care. Once families realise what really happens when applying for funding for a relative, this belief is sadly often shattered. What makes it even worse is that the people providing that information to families may not have been properly trained and may not even realise that they are acting outside the law.
It means that when an elderly person goes into care, many families don’t realise that the first priority is an NHS Continuing Healthcare funding assessment – not questions about money, property and savings.
This ‘oversight’ of the part of the health and social care authorities means that huge numbers of elderly people have been illegally railroaded into selling their homes and spending everything they have to pay for care that should have been provided by the NHS.
The only way to know who is actually responsible for paying for care is via the NHS Continuing Healthcare funding assessment process.