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:
https://www.equalityhumanrights.com/en/our-work/news/nhs-facing-court-action-over-unlawful-policies
https://www.equalityhumanrights.com/en/our-work/news/nhs-u-turns-discriminatory-policies
For additional reading:
Are You Paying Top-Up Fees Unnecessarily?
TOP-UP FEES – Unfair Care Home Practices Now Face Government Sanctions
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I think this article complicates and obscures the rulings in Coughlan, albeit that this is how CHC is being unlawfully administered in reality.
CHC is a matter of law first and foremost which has precedence over any guidance. The Care Act 2014 says that if a service can be provided under the Health Act 2006 it cannot be provided under the Care Act should there be an overlap of services that can be provided under either Statute. That the Care Act is the statute of last resort where no other means for care is possible and that the Health Act is the dominant Act.
The Ruling in Coughlan clearly established (specifically dealing with nursing home individuals) that where a person`s primary need is for health care, and that is why they are placed in nursing home accommodation, the NHS is responsible for the full cost of the package. Contrary to Government guidance, social services authorities may only purchase nursing care in strictly limited situations, in accordance with the judgement. Whilst much of the debate has concentrated on nursing home placements, it must be recognised that eligibility for CHC is not relevant to the location in which that care is provided. Those people that are cared for in their own homes whose primary need is for health care may also be eligible for CHC. (Ref: The Law Society).
Ref: Lord Wolf in Coughlan “All nursing Care is health care”.
Ref: Royal College of Nursing “and some Social Care can also be considered to be health care”
There is no distinction between “Specialist nursing” and ” Core nursing” the comparison was deemed idiosyncratic as it related specialisation not to the qualification of the nurse but to employment. This distinction was never recognised by the UK Central Council of Nursing.
Ref : Lord Justice Charles in Grogan “there is no legal distinction between Funded Nursing Care and Continuing Health Care, the Health Care Need is deemed the Primary Need.
The Care Act 2014 Section 22 says:
If the level of care is merely incidental and ancillary to the accommodation or of nature that you would expect social services to provide then social services can provide that care but if either of these limits is exceeded either the Quantity or Quality of care then the package of care becomes the full responsibility of the NHS. There is no legal halfway house. Either the local authority can meet all your needs or it cannot, then you become the responsibility of the NHS. All these other packages of care are a way for the Government and NHS to avoid their constitutional and legal obligations and effectively taxing the most vulnerable people in society that have contributed the most to the system to subsidise the NHS. It is fraud on a massive scale.
Merely incidental means a tiny amount of care pertaining to an incident and not to the long term care of the chronically sick that need the care of an RGN on a long term regular bases for which only FNC (£158/wk) is mainly awarded but only to people in a nursing home, nor where the scale of auxiliary nursing alone goes beyond what is permitted by a local authority. In a nursing home, the type of care you receive by auxiliaries under the supervision of an RGN is no different from that of a hospital inpatient. So why is it that in the hospital the care is free but in a nursing home it costs the individual £1000/wk!
Coughlan`s care needs were deemed to be well outside the remit of social services, which means you could still qualify for CHC if your needs are less than her`s let alone the same as or greater than her needs! It is not the clinical diagnoses which count but the measure of the care needs. Pamela Coughlan could and does still live a fairly independent life while many people in a nursing home are bedridden, have no voice, and are forced to accept a level of care that is subhuman. The care needs recorded in most nursing records are what the individual gets not what they need, typical of most nursing homes. It is very evident today with Covid and the level of the mortality rates in nursing homes. These bedridden and homebound patients did not break any social distancing or quarantine laws. Covid was given to them by Angels of death that clearly did not apply common sense in protecting themselves and the patients they were looking after, resulting in tens of thousands of vulnerable people dying unnecessarily. I suppose it has reduced the NHS`s CHC budget! My mother was one of these people forced into institutional care where instead she would have been better off in her own home. She was a Covid victim and died through no fault of her own and the family were all denied access. All because it is cheaper to pay for care in a nursing home than it is to provide the same level of care in a person`s own home, care that family could have been trained to give saving the NHS a lot of expense.
The CHC catastrophe has always been about successive governments saving face for the last twenty years of fraud that they have perpetrated. They have made legal redress unviable by limiting the remedies that courts can offer which is why I believe most solicitors won`t take court action. Why is it 40 years ago health care was free and now we have to pay for it? The law has not changed in this regard since 1948? We don`t need any more debate about the false complexities of CHC which once upon a time your GP decided, we need a radical public action against the Government and NHS. We can easily afford CHC.
Hi, my name is Peter, and I am looking into care for my mother who has dementia and other care needs. I also look after dad who has just come out of hospital and who now needs more care. A friend told me of a joint package of care instead of trying to find a nursing home for mum, but I do not know if this is possible. Can you help with any information and guidance please. Any help would be much appreciated.