Care to be Different are here to answer your questions! We are always happy to receive requests for articles from our insightful readers. This week, we take a look at how the National Framework interacts with the law, in response to this question from one of our readers:
“Dear Care to be Different, it would be really helpful if you could shed some light on the link between the National Framework, the CCG Standing Rules and the legal limit of a local authority referenced in section 21(7) of the Standing Rules (legislation).”
If you are engaged in the assessment and/or appeal process for NHS Continuing Healthcare funding, for yourself or on behalf of a relative you will likely be familiar with the National Framework for NHS Continuing Healthcare Funding and NHS Funded Nursing Care (“the National Framework”).
Currently in its third version (2007, 2012, 2018), the National Framework provides guidance to Clinical Commissioning Groups (CCGs) – the local NHS body responsible for medical services in your area – to ensure compliance with the law when assessing individuals for ongoing NHS funding in the community (CHC).
As we considered in our recent three-part series on the subject, the National Framework and Decision Support Tool were drafted in response to the 1999 Court of Appeal Case, R. v. North and East Devon Health Authority, ex parte Coughlan – often referred to as the Coughlan Judgment – and the Court’s comments about the quality and quantity of care that Social Services could be expected to provide.
For more information, read our in-depth series about the 1999 Coughlan Judgment:
As many a frustrated CHC applicant will have discovered, the National Framework is only guidance and is not legally-binding. However, local commissioners (health and social care) are required to “have regard” to the National Framework, as failure to do so may result in them breaking the law.
Paragraphs 6 and 7 of the Executive Summary of the National Framework explain the interplay between guidance and legislation:
“This National Framework is underpinned by Standing Rules Regulations (2), issued under the National Health Service Act 2006 (1). These regulations, referred to henceforth as the Standing Rules, require Clinical Commissioning Groups (CCGs) to have regard to the National Framework.
This revised National Framework takes account of legislative changes brought about by the Care Act 2014 (3), which preserves the existing boundary and limits of local authority responsibility in relation to the provision of nursing and/or healthcare.”
The Executive Summary refers to three pieces of legislation, all of which underpin the provisions of the National Framework:
- The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012
The Health Act 2006 is a wide-ranging Act of Parliament, which, as well as banning smoking in public places, includes provisions about the recovery of National Health Service costs in England and Wales. The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, typically referred to as the “Standing Rules”, came into force in April 2013. The Standing Rules, drafted by the then Health Secretary under powers conferred by the Health Acts of 2006 and 2012, offer specific guidance to local commissioners about the provision of medical services.
The Care Act 2014 intended to improve the delivery of social care services and the working of the adult social care system, by bringing together several separate pieces of health and social care legislation. Importantly, the Care Act attempts to define the “lawful limit” of a Local Authority when meeting the needs of individuals in the community. All three texts help to define the lawful division between health and social care.
REMEMBER – The provisions of the National Framework are not legally-binding, but “having regard” to them will ensure CCGs comply with the legislation referred to in the Executive Summary.
The Standing Rules
Standing Rules Regulations, 21.7: Duty of relevant bodies: assessment and provision of NHS Continuing Healthcare – sets out the general conditions under which an individual may qualify for fully funded NHS care in the community (CHC). Essentially, this section of the regulations repeats the Court of Appeal’s statement in the Coughlan Judgment about the type of community care local NHS commissioners are expected to fund:
“In deciding whether a person has a primary health need in accordance with paragraph (5)(b), a relevant body must consider whether the nursing or other health services required by that person are—
(a) where that person is, or is to be, accommodated in relevant premises, more than incidental or ancillary to the provision of accommodation which a social services authority is, or would be but for a person’s means, under a duty to provide; or
(b) of a nature beyond which a social services authority whose primary responsibility is to provide social services could be expected to provide, and, if it decides that the nursing or other health services required do, when considered in their totality, fall within sub-paragraph (a) or (b), it must decide that that person has a primary health need.”
Eligibility for Continuing Healthcare funding is dependent on the individual’s “primary need”. I.e., are the majority of the services required, or is the overriding need, medical or social in nature? Do the quantity and/or quality of services required exceed those which could reasonably be expected to be provided by medically unskilled carers?
While the Court of Appeal’s statements offer some guidance about the criteria for determining a primary need for healthcare, in practice they were difficult to apply and open to interpretation. Stark differences in the application of the “primary health need test” around the country highlighted the need for a nationally defined set of criteria, against which all applicants could be considered fairly. The introduction of the National Framework (guidance) and Decision Support Tool (assessment tool) in 2007 intended to streamline the CHC assessment process and ensure fair and consistent decision-making, regardless of locality.
The Decision Support Tool helps CCGs to assess the degree (quantity) of a person’s needs in 11 key areas, with a 12th category for additional needs. The primary health needs test – also referred to as the four Key Characteristics of nature, intensity, complexity and unpredictability – assists CCGs in analysing the type of services (quality) required to meet the individual’s assessed needs. By using the Decision Support Tool to apply the primary health need test, CCGs should be able to ensure compliance with the Coughlan Judgment, the Health Act and the Standing Rules.
The National Framework sets out the recommended process by which decisions on eligibility for CHC funding should be reached. While the Framework holds no legislative power in and of itself, failure to comply with its provisions may result in a CCG breaking one or more of the laws by which it is underpinned.
The Care Act 2014
While the Health Act and Standing Rules were aimed at health authorities (then PCTs, now CCGs), the Care Act 2014 is concerned with Social Services. Crucially, the Care Act attempts to define the type of services a Local Authority can reasonably be expected to provide, with reference to the Coughlan Judgment. In so doing, the Act clarifies the limits of Local Authority responsibility in relation to the provision of nursing and/or healthcare in the community.
Part 1, Section 1.1-2 of the Care Act outlines the general responsibilities of the Local Authority in promoting individual well-being:
“1. Promoting individual well-being
(1) The general duty of a local authority, in exercising a function under this Part in the case of an individual, is to promote that individual’s well-being.
(2) “Well-being”, in relation to an individual, means that individual’s well-being so far as relating to any of the following—
(a) personal dignity (including treatment of the individual with respect);
(b) physical and mental health and emotional well-being;
(c) protection from abuse and neglect;
(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);
(e) participation in work, education, training or recreation;
(f) social and economic well-being;
(g) domestic, family and personal relationships;
(h) suitability of living accommodation;
(i) the individual’s contribution to society.”
Any of the needs listed above are considered within the lawful remit of the Local Authority to meet and would not be indicative of a need for healthcare. Where Continuing Healthcare funding assessments are concerned, the needs described at subsections 2. a), b) and c) are the most hotly debated.
The vast majority of individuals who receive 24-hour care in a residential setting will require full or partial assistance to meet some or all of the needs described above. When they are assessed and found not to meet the criteria for CHC funding, the CCG will use interpretations of the above legislation to support its decision.
The requirement for 24-hour care in a residential or nursing home – to include assistance with, or full provision of, washing, dressing, eating, drinking, moving around safely, going to the toilet, maintaining skin health, treating minor injuries and taking prescribed medications – would be considered merely ancillary and incidental to the provision of accommodation, because the needs fall under the categories described under subsection 2, a), b) and c), above. A person who is cognitively impaired is also likely to require full or partial assistance to meet the needs described under subsection 2, e) through h).
Part 1, Section 22 of the Care Act addresses certain exceptions whereby the Local Authority would be responsible for the provision of health services in the community. This section of the Act is crucial to considerations for CHC funding and is specifically referenced in the Executive Summary of the National Framework as a footnote.
Part 1, Section 22.1: Exception for provision of health services – repeats the Court of Appeal’s statements in the Coughlan Judgment about the quality and quantity of required services, outlining those circumstances in which the Local Authority would reasonably be expected to provide health services as part of a package of care:
“(1) A local authority may not meet needs under sections 18 to 20 by providing or arranging for the provision of a service or facility that is required to be provided under the National Health Service Act 2006 unless—
(a) doing so would be merely incidental or ancillary to doing something else to meet needs under those sections, and
(b) the service or facility in question would be of a nature that the local authority could be expected to provide.”
Part 1, Section 22.3-4: Exception for provision of health services – reminds the Local Authority that it cannot ordinarily provide nursing care or arrange for its provision in the community (e.g. care by a District Nurse). Subsection 4, however, describes the particular circumstances whereby the Local Authority may be expected to provide nursing services as part of an ongoing package of care:
“(3) A local authority may not meet needs under sections 18 to 20 by providing or arranging for the provision of nursing care by a registered nurse.
(4) But a local authority may, despite the prohibitions in subsections (1) and (3), arrange for the provision of accommodation together with the provision of nursing care by a registered nurse if—
(a) the authority has obtained consent for it to arrange for the provision of the nursing care from whichever clinical commissioning group regulations require, or
(b) the case is urgent and the arrangements for accommodation are only temporary.”
The completion of the Decision Support Tool by a Multi-Disciplinary Team (MDT) of health and social care professionals, in accordance with the process outlined in the National Framework, determines the individual’s primary need (health or social care) and, therefore, responsibility for the provision of services (CCG or Local Authority). Once an individual is found not to meet the criteria for CHC funding, the requirement at section 22.4 a), for the Local Authority to obtain consent from the relevant CCG to deliver nursing care, has been met. The Local Authority can thus lawfully provide nursing services as part of an ongoing package of care and the individual receiving that care can be means-tested to assess their financial contribution.
Part 1, Section 22.5-6: Exception for provision of health services – if an individual has been placed in a care setting by Social Services, subsection 5 reminds the Local Authority of its obligation to seek the CCG’s assessment as to the primary need and thus responsibility for service provision, as soon as is reasonably possible. Subsection 6 determines that the Local Authority must engage with such assessments as required and have a policy for resolving disagreements about the responsible commissioner with the CCG.
“(5) In a case to which subsection (4)(b) applies, as soon as is feasible after the temporary arrangements are made, the local authority must seek to obtain the consent mentioned in subsection (4)(a).
(6) Regulations may require a local authority—
(a) to be involved in the specified manner in processes for assessing a person’s needs for health care and for deciding how those needs should be met;
(b) to make arrangements for determining disputes between the authority and a clinical commissioning group or the National Health Service Commissioning Board about whether or not a service or facility is required to be provided under the National Health Service Act 2006.”
Part 1, Section 22.8: Exception for provision of health services – gives further clarification as to when nursing services may be provided by a Local Authority, once an individual has been placed in a care setting:
“(8) A reference to the provision of nursing care by a registered nurse is a reference to the provision by a registered nurse of a service involving—
(a) the provision of care, or
(b) the planning, supervision or delegation of the provision of care,
other than a service which, having regard to its nature and the circumstances in which it is provided, does not need to be provided by a registered nurse.”
So, if the nursing services provided could otherwise be delivered by a medically unskilled carer, and are only provided by a nurse because, for example, the person resides in a nursing home, then those services can be included in a social care package which can be means-tested. This section of the Care Act is routinely relied upon by CCGs to deny CHC funding to residents of nursing homes, many of whom will require provision, and/or planning, supervision or delegation, of care by a registered nurse.
Quick Take Away: Guidance vs. Legislation
- In deciding whether care services are to be provided by the NHS or Local Authority, the CCG/Social Services must comply with the 2006 Health Act, 2012 Standing Rules and 2014 Care Act, all of which refer to the findings of the Court of Appeal in the 1999 Coughlan Judgment.
- The National Framework and Decision Support Tool have been drafted to help health and social care commissioners comply with the above legislation when determining responsibility for the provision of health services in the community.
- The National Framework sets out the recommended assessment and appeals’ process for CCGs to follow when making decisions about CHC funding.
- The Decision Support Tool aids consistency and fairness of decision making when applying the primary health need test.
- While the National Framework is not legally binding, the Standing Rules are.
- The Standing Rules require CCGs to “have regard to” the guidance in the National Framework when determining the responsible commissioner and resolving disputes. Failure to do so may result in both authorities breaking one or all of the laws underpinning the National Framework, referred to in the Executive Summary (para. 6-7).
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