If your relative has a ‘primary health need’ then the cost of their assessed healthcare needs including accommodation, should be met in full, free of charge, by the NHS Clinical Commissioning Group (CCG). This funded package of care is not means-tested and is called NHS Continuing Healthcare (or ‘CHC’). Social needs are the responsibility of the Local Authority and are means-tested. If your relative does not have a primary health need, then they will be required to self-fund their care, subject to means-testing.
In simple terms, a primary healthcare need is described as care which is of a nature that is beyond that which a local authority can legally provide. If you are new to CHC read our blog on ‘Primary health need’ made simple – what does it really mean?
But what if your relative falls between ‘two stools’ and is ineligible for full CHC, yet has some degree of needs that are beyond the powers of a Local Authority to meet?
In that situation, funding may potentially come from more than one source – a combination of both NHS and Local Authority funding.
The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (revised 2018) provides that the CCG and Local Authority may have an obligation to devise a joint package of health care and social care to meet their respective responsibilities for your relative’s care needs. In addition, they must tell you which organisation will take the lead in agreeing and managing your relative’s care plan, and what contribution each organisation is making towards the jointly funded package of care. The relevant paragraphs from the National Framework are set out below:-
Joint packages of health and social care
“263. If a person is not eligible for NHS Continuing Healthcare, they may potentially receive a joint package of health and social care. This is where an individual’s care or support package is funded by both the NHS and the local authority. This may apply where specific needs have been identified through the DST that are beyond the powers of the local authority to meet on its own. This could be because the specific needs are not of a nature that a local authority could be expected to meet, or because they are not incidental or ancillary to something which the Local Authority would be doing to meet needs under sections 18-20 of the Care Act 2014. It should be noted that joint packages can be provided in any setting.
264. CCGs should work in partnership with their local authority colleagues to agree their respective responsibilities in such cases. These should be identified by considering the needs of the individual. Where there are overlapping powers and responsibilities, a flexible, partnership-based approach should be adopted, including which party will take the lead commissioning role.
265. Apart from NHS-funded Nursing Care, additional health services may also be delivered by existing NHS services or funded by the NHS, if these are identified and agreed as part of an assessment and care plan. The range of services that the NHS is expected to arrange and fund includes, but is not limited to:
• primary healthcare;
• assessment involving doctors and registered nurses;
• rehabilitation/reablement and recovery (where this forms part of an overall package of NHS care, as distinct from intermediate care);
• respite healthcare;
• community health services;
• specialist support for healthcare needs; and National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care 73
• palliative care and end of life healthcare.
266. Subject to the national eligibility criteria for adult care and support (refer to paragraph 51) and to means testing where appropriate, each local authority is responsible for providing such care and support as can lawfully be provided. More information on this can be found in the section on Legislation in this National Framework.
267. In a joint package of care the CCG and the local authority can each contribute to the package by any one, or more, of the following:
a) delivering direct services to the individual
b) commissioning care/services to support the care package
c) transferring funding between their respective organisations
d) contributing to an integrated personal budget.
268. Although the funding for a joint package comes from more than one source it is possible that one provider, or the same worker(s), could provide all the support. Examples can include:
• an individual in their own home with a package of support comprising both health and social care elements;
• an individual in a care home (with nursing) who has nursing or other health needs, that are beyond the scope of the NHS-funded Nursing Care contribution; or
• an individual in a care home (without nursing) who has some specific health needs requiring skilled intervention or support, that cannot be met by community nursing services and are beyond the power of the local authority to meet.
269. Jointly coordinated CCG and local authority reviews should be considered for any joint package of care in order to maximise effective care and support for the individual.”
For example: If your relative does not have a ‘primary health need’ but has other needs which include nursing care needs, then your relative should automatically be assessed for NHS -Funded Nursing Care (FNC). FNC is not means-tested and is a weekly sum (currently £158.16) paid by the CCG to an individual living in a care home as a contribution towards the costs of their nursing care needs (provided by a registered nurse at the care home). It is the CCG’s responsibility to fund FNC. A Local Authority cannot lawfully fund nursing care as it beyond their legal remit. However, the joint package of care may mean that the Local Authority is required to fund the balance of any other social and support needs at the care home (subject to means-testing).
There may also be circumstances when Funded Nursing Care is not considered to be sufficient to fund the element of nursing needs, but where an individual still does not have a primary healthcare need. In those cases, joint funding may be agreed, for example 50% funding from NHS and 50% funding by the Local Authority (subject to means testing).
For more information about FNC, read our blog: Have you considered NHS-Funded Nursing Care (FNC)?
What is a joint package of care?
Note: CCGs and Local Authorities can impose an arbitrary cap on how much they will fund.
We therefore recommend that you make enquiries and ask for a breakdown as to how much each organisation is contributing towards the cost of your relative’s care. Find out if there is a cap and who is imposing it. Does that impact upon the choice of placement or care provider, as you may need to challenge the level of funding?
If your relative wants a different or ‘better’ care home which costs more, they can pay a top-up fee to contribute to that cost over and above the Local Authority package of funding in place. That is perfectly lawful.
However, if your relative has a primary healthcare need and is in receipt of NHS Continuing Healthcare Funding (CHC), the care home should not lawfully charge a top-up fee for their clinically assessed healthcare needs (including accommodation). That should all be part of the free funded CHC package provided by the NHS. Understandably, though, if your relative wants an upgrade on the standard care home facilities and accommodation provided, which is not part of their assessed healthcare needs, eg a bigger, more luxurious room with a nicer view, then they will have to pay for that privilege. That too is perfectly lawful.
We have come across situations where the CCG funds as much as 70% or 80% of care home fees as part of a joint package with the Local Authority. If the CCG is paying more than 50% of the joint funding package, then you could argue that your relative may have a primary health need – because the health needs significantly outweigh the need for social type care provided by the Local Authority! If this is similar to your relative’s situation, then request an updated CHC assessment.
Some CCGs are facing legal action by the Equality and Human Rights Commission regarding caps imposed, mainly in cases where individuals have been granted CHC but want to be cared for at home. However, it could be argued that such caps are equally inapplicable to joint funded packages of care as well. For further information on this developing subject, read: