How the new Care Act 2014 helps you with NHS Continuing Healthcare

How the new Care Act 2014 helps you with NHS Continuing Healthcare

How the new Care Act 2014 helps you with NHS Continuing HealthcareApplying for NHS Continuing Healthcare? The Care Act can help you

It’s no secret that there are many complaints about NHS Continuing Healthcare funding and about the way care needs are assessed. Many families report that assessments are carried out without due regard established guidelines and legislation.

Today’s article is from Bernie Crean from Care Review Services Ltd. Bernie is an independent Continuing Healthcare advocate with 20 years’ previous experience in Adult Social Care.
In this article he focuses on the problems that local authorities (Social Services departments) have with the NHS Continuing Healthcare assessment process, and the important role Social Services must play.

He also highlights how the new Care Act supports families in the assessment process for Continuing Healthcare.

Bernie Crean, Care Review Services LtdBernie continues

During my time in Adult Social Care I took part in the assessment and decision-making process for many NHS Continuing Healthcare assessments – and yet until 2011 I had no training in Continuing Healthcare. This was also the case for most of my social care colleagues – and it is still the case in many local authorities across the country.

However, once I did begin to learn more about NHS Continuing Healthcare, I was able to apply what’s known as the ‘local authority limits test’ much more consistently and robustly in Continuing Healthcare assessments. As a result, the NHS was obliged to fully fund more cases.

The local authority limits test is an evaluation of whether a person’s care is beyond that for which the local authority can legally take responsibility, i.e. where care is merely incidental to the provision of accommodation and where care needs do not constitute primarily a health need. (This was reinforced in the Coughlan case.)

Needless to say, forcing the NHS to provide more Continuing Healthcare funding meant I was not popular with the NHS. Indeed, I endured frequent provocation and pressure. I’m not the first social care professional to suffer bullying by NHS staff and I’m sure I won’t be the last.

In Continuing Healthcare funding assessments, most NHS assessors start with the premise that the person being assessed has to be shown to have a ‘primary health need’ – and if they don’t then by default they must have only a social care need. In such instances the person is then means tested.

However…

Right from the implementation of the NHS Act 1946 and the National Assistance Act (NAA) 1948, if a person has care needs that are more than simply social care then by default they have a health care need – and the NHS should provide funding.

It is a bottom up determination, if you like, and not top down as many Continuing Healthcare assessors insist.

Although the original legislation (NHS ’46 & NAA ’48) was still the ultimate arbiter that defined the legal divide between a social care and health care need, there were frequent disputes.

Fortunately, some of these disputes ended up either in the courts or with the Ombudsman, for example:

  • The Leeds Case 1994
  • The Coughlan case 1999
  • The Wigan case 2001
  • The Pointon case 2003
  • The Haringey case 2005
  • …and, in addition, the Pierce, Pugh and Squires Ombudsman cases

All of the above cases examined individual needs and concluded that they were beyond being social care needs, i.e. they were above the local authority limits – and must therefore be seen as health needs, which meant eligibility for NHS Continuing Healthcare funding.

This principle of local authority limits is made very clear in both the NHS Continuing Healthcare National Framework guidelines and also in the ‘User notes’ of the Decision Support Tool (DST) form (used in the full multidisciplinary team (MDT) assessment for NHS Continuing Healthcare). It is a statutory requirement for assessors and decision makers to consider local authority limits in every assessment for Continuing Healthcare funding.

The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, commonly known as the CCG Regulations, further reinforces this legal requirement to consider local authority limits. I frequently refer to these regulations when talking to Continuing Healthcare and social care staff; many have never heard of them – never mind ever read them!

You may not realise how the Care Act 2014 helps you with NHS Continuing Healthcare

The law requires proper evaluation of whether a local authority can lawfully provide their services. If the local authority can’t, then care needs have to be seen as a ‘primary health need’ and the person is eligible for NHS Continuing Healthcare funding.

Much as it might like to, the NHS cannot alter the law by introducing internal rules and procedures to deny a person someone their established legal rights. Guidelines can help get it right legally – but they cannot take precedence. The law is the ultimate arbiter of eligibility for NHS Continuing Healthcare and ultimately overrides Continuing Healthcare guidelines.

Key points about how the Care Act 2014 helps you with NHS Continuing Healthcare

The Care Act 2014 firmly upholds and embeds the need to consider if needs are greater than social care (local authorities) can provide. The Care Act also has the added bonus of resolving the problems that social services had with the Continuing Healthcare process.

What were these problems?

  • Very few social care (local authority) staff have training on NHS Continuing Healthcare and they do not understand their role in this respect or the legal requirement to consider local authority limits. As such, if they do take part in the Continuing Healthcare process they are likely to be mere passive observers and unable to make a judgement on whether care needs are above or below that limit.
  • It has always been a statutory requirement for all health and social care staff to be aware of when a person may be eligible for NHS Continuing Healthcare. However, most health and social care professionals do not have Continuing Healthcare funding on their minds when they engage with families. With every assessment and review undertaken by a social worker, including a social care assessment, the social worker should look to see if the care needs are beyond being social care. This often doesn’t happen. Now, however, the Care Act has imposed this duty on Social Services.
  • Although it is a requirement for a local authority representative to attend a full multidisciplinary team (MDT) assessment for Continuing Healthcare, in practice these social care workers frequently turn down requests from the NHS to be part of the process, and so the assessment process is flawed right from the start.
  • Local authorities have frequently discriminated against self funders and deflected them away from having a social care assessment – or have refused to take part in a Continuing Healthcare assessment – just because a person has savings or a house. As such, even if their needs were above the local authority limit, the local authority would not act on a person’s behalf to obtain Continuing Healthcare funding.
  • Even if a local authority representative did take part in a Continuing Healthcare assessment and had training in Continuing Healthcare and knew about the local authority limits, many do not insist that the written funding recommendation includes a statement about a person’s care in relation to those limits.
  • Continuing Healthcare panels consist of a Chair and managers and clinical leads from health and social care. However, not all will have had training in Continuing Healthcare or be aware of the need to consider local authority limits – or even know how to assess for them! I have sat on many panels were this has been the case. In addition there has not even been a local authority representative involved. Needless to say, Continuing Healthcare funding was often turned down.

Although the Care Act has been in force since April 2015, it is likely that the above problems and failures will still occur – to the detriment of vulnerable people trying to get a fair, transparent and legally compliant assessment for NHS Continuing Healthcare.

What is worrying is that a recent report in Community Care magazine states that many front-line social care workers feel they have not had sufficient training in the Care Act and in their new legal duties.

The Care Act created the following regulations that will go a long way to addressing the problems that occur in points 1 to 6 above. In time, I hope it will address them completely.

An alternative way to get assessed for NHS Continuing Healthcare

The Care and Support (Assessment) Regulations 2014:

Prior to the Care Act the usual route of being assessed for Continuing Healthcare was:

  • via a Continuing Healthcare Checklist on a hospital ward if a person was an inpatient
  • if in the community or a care home by a referral to an NHS Continuing Healthcare team, but potentially face a long wait

Under this NHS referral route (second bullet point above) the control lies totally with NHS staff. If a social worker did later come on board (or not) all the usual problems outlined earlier may occur.

An additional problem is that if and when Continuing Healthcare is obtained, the NHS only backdate funding to when the Checklist was completed, regardless of the date of the actual referral.

However, the Care Act and specifically the ‘Care & Support’ Regulations now give families a more robust quicker and alternative referral route that builds in compliance with the statutory requirement – to consider if care needs are beyond being social care. This also has the benefit of locking at the start date from when the initial referral to Social Services was made.

My personal advice to anyone who thinks they or a family member might be eligible for Continuing Healthcare is to follow these steps instead of going down the usual Continuing Healthcare referral route:

  • Make a formal referral to your Social Services Department, by email or letter if possible to prove the date. If done over the phone, ask for confirmation and for a case reference number. Request a care assessment from the local authority under the Care Act. (Local authorities must assess any adult who ‘appears’ to have any level of need for care and support.) State that due to the severity/complexity of needs and possible deterioration that you require a face-to-face assessment.
  • Do not mention NHS Continuing Healthcare at all: At this stage you are merely requesting an assessment of need. If you make them aware that the person may potentially be eligible for Continuing Healthcare, the local authority may decline to take the referral and divert you down the NHS referral route instead.
  • If the local authority tries to discuss finances at this stage, decline to discuss this and advise them that the Care Act states finance questions must not determine access to an assessment and that finances can be discussed after the assessment of needs by the local authority.
  • You will then be contacted at some point to agree a date for the assessment. At this time ask for the name of the assessor and their contact details including email address.
  • This is the point when you make use of the Care Act regulations that were not available to you before: In an email or letter to that local authority assessor, politely inform then that as part of their assessment of need they must consider potential eligibility for Continuing Healthcare as per the Care Assessment and Support (Assessment) Regulations 2014 that state:
    7(1) Where it appears to a local authority carrying out a needs assessment that the individual to whom the assessment relates may be eligible for NHS continuing healthcare (a), the local authority must refer the individual to the relevant body.
    7(3) In performing its duties under this regulation, a local authority must have regard to the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care issued by the Secretary of State and dated 28 November 2012(b).
  • Also inform them that Reg 5(1) requires that the assessor must have the skills, knowledge and competence to carry out the assessment in question; and be appropriately trained. (See requirement 7(3) above about being aware of the content of the Continuing Healthcare National Framework.) As such they must know how to assess whether care is beyond the local authority limits. Now that Continuing Healthcare has been mentioned, they may try at this point to cancel their assessment and advise you to make a referral to the Continuing Healthcare team. Refuse to do this and advise them that you have made a lawful request for an assessment to Social Services under the Care Act and they have a duty to accept this referral and to assess care needs – and you are merely advising them of their duty under the Care Act regulations. Advise them that to refuse to carry out this assessment would be a breach of the regulations and would lead to a formal complaint.
  • To round off your formal notice of what you expect from the assessor and their assessment, advise them that as part of their assessment of care needs that they should consider using the Continuing Healthcare Checklist. All local authority assessors are authorised by the National Framework for NHS Continuing Healthcare to use this screening tool.

Local authorities play a vital role in upholding the legal divide between health and social care

The implementation of this strategy and advice may seem a bit heavy and you may be reluctant to be so assertive. I can assure you that this approach will have an impact on the assessor and will let them know that you are probably more aware than they are of the duties that the Care Act places on them to consider eligibility for Continuing Healthcare.

If you do not make it clear to them what their statutory duty is with regard Continuing Healthcare, they will in all likelihood not comply with these regulations. I know from my own advocacy work that very few Social Care employees are aware of these new regulations.

If they don’t comply with the requirements of the Care Act and don’t posses the training, knowledge and competence to assess if needs are above the local authority limits then you have a strong case to complain or appeal to the local authority about the way the assessment is being undertaken – especially if through their incompetence you fail to obtain Continuing Healthcare funding. It is also possible for you to make a complaint to their professional body about their professional incompetence.

Their assessment must record and show compliance with the Care Act and the Continuing Healthcare National Framework, and as such they have a legal duty to consider if care needs are more than social care.

They have a duty to record their clinical and professional judgement and evidence. They cannot merely state that they “considered Continuing Healthcare” or “I feel the needs are within the local authority limits.” Instead, they have to go into far more written clinical reasoning than this.

Only the local authority representative can assess if care needs are more than the local authority limits

If the applicant is an in-patient in hospital then the Care Act still applies to the need for Social Services to assess and to apply the duties of the Care and Support (Assessment) Regulations 2014.

Discharge legislation and the National Framework for NHS Continuing Healthcare state that ward staff must consult and involve Social Services in assessing ongoing care needs and consideration of Continuing Healthcare. Be aware that Social Services may still try to avoid getting involved in assessing needs of a potentially self-funding person or to play a passive role in the discharge process. Use the strategy above with the Social Worker on the ward in the same way to advise the Hospital Social Worker of their legal duties.

There is a big advantage to local authorities in adhering to the Care Act in the above respects: If Social Services comply with legislation and are more robust in assessing the care needs of vulnerable people, with a view to identifying when their needs were more than social care, then the local authority may be able to shift funding responsibility across to the NHS via Continuing Healthcare. It seems that many senior Social Care managers are reluctant to do this for fear of upsetting their NHS colleagues, as it will increase Continuing Healthcare budget spending.

I know from my 20 years in Adult Social Care that there exists widespread ignorance and fear of the NHS that prevents many vulnerable people from obtaining Continuing Healthcare.

With the recent postponement of the financial cap on care fees, it is even more important for those professionals involved with elderly people to make sure care needs are regularly reviewed to see if they have moved beyond social care – especially if a person is in a 24-hour care setting. This social care threshold is lower than many people think it is.

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Article submitted by Bernie Crean of Care Review Services Ltd.

91 Comments

  1. Conrad Jones 2 months ago

    Should we be a bit more careful about using the word “Law” when applied to an “Act of Parliament” which relies on consent and is not enforceable?
    Parliament creates Statutes or Acts of Parliament.
    Courtrooms produce Laws, such as the Judgement regarding Pam Coughlan Court Judgement, not “Judge” Judgement.
    Has anyone wondered why if the Government is in “Power” and if Parliament creates “Laws” why they haven’t passed a Law to keep them in Power forever? It is becasue “Statutes” require consent of other MPs and specifically the consent of the citizens of the United Kingdom. If they refused that consent, the Statutes, Acts or Legislation wouldn’t be worth the paper they are written on. It’s consent that gives Acts the appearance of Law.
    Why is is that the NHS has accepted the Health & Social Care Act 2012 when so many Doctors and Nurses in the NHS do not agree with it – it isn’t Law, it’s legislation.

    The NHS National Framework also is NOT Law, which is why it is so vague on the differences between a Health Need and a Social Need. Statutes are created to benefit certain vested interests – Common Law can only be created through Court Judgements.

    A Magistrate told me that the Pam Coughlan Case had nothing to do with my Father’s Case (my Father had severe Alzheiemer’s, Dementia, COPD, could not walk, had next to zero Cognition and other Health Issues) becasue it only related to a Promise made by the local Health Authority – but a Magistrate has no Legal Training, they are merely there to represent us and are like toddlers on a bicycle with stabilisers, the stabilisers being the Legal Advisers which they rely on in court. It’s the Jury that passes Judgement – not the Judge.

    We can refer to the National Framework in assessments and reviews as it is NOT Law, but we cannot refer to the Pamela Coughlan Case in Retro-Claims becasue the Panelists are not legally trained, therefore the only place for a Retro-claim is a Courtroom, because Law states that anyone whose Accomodation is purely ancilliary to the Treatment they receive in a Specialist Nursing Home and whose Needs are equal to, or exceed Pam Coughlan’s Needs, is automatically beyond the scope of the Local Authority. That is the Law. the NHS National Framework is a Statute which – is not Law and was passed by someone who properly left Parliament for a Job in a Bank or got a Directorship in a Private Health Firm – lot’s of examples spring to mind and I got get a list for anyone who doubts that from a book written by Senior NHS Doctors.

  2. Denise Roscoe 10 months ago

    It would take me too long to explain what we have gone through since April 2015. But have just had a Multidisciplinary Team (MDT) meeting for the second time 2 days ago. At the meeting I was very thorough in how I presented our point of view (gave them a typed report for each domain) and also included a lot of the observations/arguments I have read on this site. Despite the fact all previous Checklists or Decision Support Tool (DST) were not carried out in line with the National Framework for numerous reasons. We were told that Mums needs were social needs. I think that because I was starting to show that I was more informed about the process (for example requesting that they get up to date medical records that are accurate which were used at the last DST) they sent in a senior social service officer and a nurse manager. Who very skilled at answering my arguments.

    The reason for me commenting here is I think that due to the recent publicity and the fact that the public is more informed due to the internet. The people who are conducting the Continuing Healthcare (CHC) are getting wiser in addressing arguments.

    I feel very strongly!! that it is about time that the government should grow some balls and make a definitive decision on what the legal limit is for social services care !!!!!!!!

    I know that will probably end up being a cost to the country. But I can’t help feeling that there would be a considerable saving the main one being the patients and relatives peace of mind. Another major one being the nurses who have to administer this futile process could be released to nurse and possibly reduce some of the agency nurses being employed. And lastly the financial savings related to making numerous appeals for both the various authorities and the patients and/or relatives.

    I know that a considerable amount of my added stress is caused by my perception of being treated unjustly. This would not be so if the criteria was not so open to interpretation.

    I wonder whether that we should now be lobbying to get a clear definition of the legal limit for social care.

    Until that is established the rich will be able to employ a legal team to fight for them. If you are not so well off you will be ok for a change. Everyone else will lose everything you worked for. But you were never advised to get your own insurance just in case because you believed in the system like we did

    • Pat Roberts 5 months ago

      I totally agree with what you are saying. My sister and I have been through a very long and painful process in an attempt to get Continuing Healthcare (CHC) for our father who has dementia, complex health needs and very poor mobility. We failed.
      Our first attempt at an assessment meeting was abandoned after numerous mistakes in the process were identified by us, after certain professionals gave their opinion on whether .Dad was eligible before hearing any discussion and without ever meeting Dad, and after a ward manager walked out saying she “wasn’t trained for this”. Our second meeting was led by a bossy, forceful Manager who bullied and patronised us, had clearly decided not to award Dad the CHC before we even started the meeting, did not refer to the Social Workers report or indeed any Hospital assessments unless asked to by us, bullied the so called multi-disciplinary team who made very few comments throughout, ignored or trivialised our comments and concerns and exploited our vulnerability. We complained about many aspects. Subsequently the manager who led the meeting and the ward manager have lied about what actually happened and our complaints have been minimised. We so far have paid a huge amount of money in trying to get help. Dad is currently getting Funded Nursing Care (FNC) which is a drop in the ocean to the fees that he actually pays. We are now left wondering what to do and feel exhausted, helpless, emotionally vulnerable, sickened by a NHS into which Dad contributed all of his working life and disillusioned by a political system which allows an elderly , sick old man in his 90s to be treated in this way by its health services. We fear that if we create more disruption in this system which is managed by people who clearly only care about their own budgets (many of them nurses who have a Code of Professional Practice to adhere to) Dad will be punished by them stopping his FNC.

      • CST 1 month ago

        I am looking to organise a crowd funding to organise a legal challenge to this corrupt process and those who line their own pockets by abusing those who they should be helping.

        There are only two rules in the assessments :-
        1) any issues you raise or hard facts you produce are ignored.
        2) any unsubstantiated or false statements that they make are fact.

        Until the public can consolidate and bring some of these monsters to account very few will gain funding.

        The vast majority of NHS Continuing Healthcare (CHC) funding applications are simply rejected or wilt on the vine.
        Fast Track applications are more successful though death itself is not sufficient proof.

        You will be very luck to get a few days funding before death, but even then it won’t be paid for 6-7 years.

        It would be very interesting to find out if there is a connection between those few successfull applications and those in charge of the assessment process…a challenging Freedom of Information request needed!

        • Author
          Angela Sherman 1 month ago

          The Continuing Healthcare (CHC) process can be tortuous and exhausting. However, we hear from families every single week who have succeeded in securing CHC – and so it’s vital that comments do not put people off from applying and appealing. Wishing you well with any crowdfunding campaign. Once that’s set up, feel free to share the link to it here.

  3. Martyn Newey 11 months ago

    I have a 19 year old daughter with a rare genetic condition. As a result she has severe neurodevelopmental delay and PMLD. She has epilepsy and a number of other medical conditions. Her initial assessment at the age of 18 for Continuing Healthcare (CHC) was flawed in a number of ways and she was eventually awarded a 25% health and 75% social package. I immediately appealed the decision and here we are 18 months later and the appeal has not been addressed. However, as part of the CHC procedure she was reassessed after one year. This second assessment was better in that we were able to obtain profession input that had been absent at the first assessment. As a result she was awarded 100% CHC funding.
    Now, the appeal process has suddenly burst into action and we had a meeting today where I had the distinct impression that their aim was to reduce 100% back to a package. At the centre of all this is the darned Decision Support Tool (DST) which I think has been used for making decisions rather than supporting the views of professionals involved in her care – the basis of our initial appeal.
    The appeal process is a paper exercise where clinical records are reviewed. Because my wife and I have managed our daughter and tried to avoid healthcare interventions, clinical records do not adequately reflect her condition and I therefore fear that her award will be downgraded. Are there any “absolute” indicators of how much health funding is provided once it has been agreed that health funding is appropriate

  4. bernie crean 1 year ago

    Hi Marie

    No problems, whenever I have time I like to offer support and advice on these blogs.

    Good luck

  5. Marie Power 1 year ago

    Thanks a lot Bernie. That’s very comprehensive. Really good of you to do this.

  6. bernie crean 1 year ago

    HI Marie

    There should be a comprehensive assessment of your husbands ongoing care needs prior to discharge. You need to be kept fully informed of this and ask for a copy of this. ‘After care’ is defined as all the care he will require to meet his health & social care needs. If he is going into a 24 hr care setting then the Sec 117 must pay for all of his care needs.

    The Care Act operating guidance needs to be complied with by all Health & Social care professionals. See this link https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance

    The key sections relating to the MCA and Sec 117 are;

    Para’s 4.1, 7.23, 8.14, 10.9, 12.19 (direct payments), 12.71, 19.42, 19.43 ( ordinarily residency) 44 ( choice of home), 49 (top ups).

    You are entitled under the Care Act to ask for a Care Act Advocate to assist you in your dealing with the statutory bodies. Such an advocate should know all about Sec 117 funding. Ask the SW to make an urgent referral for you to have a CARE Act Advocate. The Care Act operating guidance will explain about this .See the link above.

    Bernie Crean

  7. Marie Power 1 year ago

    Thank you very much for your advice, I’m really grateful. The care process is so labyrinthine that it is a significant extra stressor when extra stress really is not needed! The social worker who attended the last Multidisciplinary team meeting certainly did not demur when s117 funding was discussed. The only problem she could foresee was which LA would pick up the tab, as our main residence is in one city but, because the care homes there were either dreadful or dreadfully expensive or both, my husband was resident in a care home elsewhere immediately before he was admitted to his current hospital, and subsequently sectioned under s3 Mental Health Act. But I am not going to worry about that. If the LAs have a tussle, it will sort itself out in the end and I know that the Dept Health is the arbiter should they not be able to reach an agreement. What does worry me is how “after-care” is defined. My husband is too ill now mentally to ever come home again and his mental health needs are complex. He will have to go into residential care again, permanently, and will this be covered by s117? In whole or in part? The social worker mentioned “Top-up” funding from me as a possibility although what I have read about s117 appears to imply that the whole amount should be payable by the LA /CGC – but that depends on how “after-care” is defined, possibly?

  8. bernie crean 1 year ago

    SEc 117 funding and process in funding is an LA led requirement. Thats why there are references to the LA providing sec 117 funding. The CCG are part of the process and between them they will decide if one of them pays for all of the care or if they split the funding between them. This is common practice and process. Whatever way the funding is agreed upon between them the individual will have all their aftercare needs met by Sec 117. I wouldn’t get overly vexed by the split (or not) between the funding. The whole Sec 117 process is required to be open and transparent, you might need to make this clear in a letter or email to the key-workers involved and make it clear you want to be present at all stages of the process and have copies of all relevant records.

  9. bernie crean 1 year ago

    Hi Marie. So sorry to hear of how poorly your husband is.

    Sec 117 does trump Continuing Healthcare (CHC) funding and the ward staff are correct. All of your husbands ‘after care’ needs must be funded by either the local authority or the CCG or a combination of both. Have a look at this link.http://www.mind.org.uk/information-support/legal-rights/aftercare-under-section-117-of-the-mental-health-act/

    However, if your husband has a physical condition unconnected with his mental health condition then he may be eligible for CHC funding. Para 122 of the National Framework explains this;

    ‘However, a person in receipt of after-care services under section 117 may also have ongoing care/support needs that are not related to their mental disorder and that may, therefore, not fall within the scope of section 117. Also a person may be receiving services under section 117 and then develop separate physical health needs (e.g. through a stroke) which may then trigger the need to consider NHS continuing healthcare only in relation to these separate needs, bearing in mind that NHS continuing healthcare should not be used to meet section 117 needs. Where an individual in receipt of section 117 services develops physical care needs resulting in a rapidly deteriorating condition which may be entering a terminal phase, consideration should be given to the use of the Fast Track Pathway Tool.’

    To be honest very few NHS and Social Services practitioners are aware of how CHC interacts with Sec 117 so if the ward are happy to pay for all of his care needs under Sec 117 then let them.

    Rgds

    Bernie Crean

    • Ann Whitehurst 1 year ago

      Hi Marie and Bernie,
      I’m concerned that the hospital has said the rather vague, ‘eligible for Sec 117 Local Authority funding.’ They haven’t said they, the NHS, are going to pay for it, as I understand your query. Has he actually been assessed for this funding and more importantly has it been agreed which body, the NHS or LA’s Social Services has agree to fund it – or fund parts of it (and which parts and amounts)? I think it very useful, when dealing with both these organisations, to have some kind of independent advocate who is skilled in these negotiations/assessments, CHC and Sec 117. Not that they’re easy to find but under the 2014 Care Act the LA is supposed to provide advocacy. The NHS and the LA each want the other to pick up the bill, it seems, and so it can be very difficult to be the family in the middle of this. I hope it isn’t like this for you and your husband but goes smoothly, however it’s worth finding out what is actually being agreed and have representation at the assessment and be present yourself. Ann

  10. Marie Power 1 year ago

    Hi my husband is currently on an acute mental health ward and has been diagnosed with fronto-temporal dementia. In the last four weeks he has had cellulitis, DVT and then finally something called Neuroleptic Malignant Syndrome. Just as he was getting over all three of these the ward staff thought they detected gastro-intestinal bleeding and, on the advice of the relevant consultants, stopped his blood-thinning DVT meds somewhat earlier than they might otherwise have done. But so far with no ill effects.
    DIscharge planning is now on the table (although not with a view to actual discharge until after Christmas probably) and I asked whether CHC was relevant. I was told that because my husband is now eligible for s 117 LA funding (having been detained under s3 of the Mental Health Act) this “trumps” CHC which will not be considered. Is this correct or should I still try to pursue it?

  11. Ann Whitehurst 1 year ago

    I’m disabled, severely impaired and part of a group for former ILF (Independent Living Fund) recipients and their families/supporters. Someone’s written updating us with suggested changes to Continuing Healthcare (CHC) in my area and it’s bleak. The document from the CCG, indicates that anyone needing more than 8hrs support per day should be institutionalised. Does anyone know if the NHS with CHC has to follow the Care Act and the Statutory Guidance fully or can they make decisions about people’s incarceration like this, using a so called ‘medical’ criteria, which is how they’ll frame ‘risk’ I think? (My mother had vascular dementia and other impairments and got CHC, eventually at the 3rd attempt and within a hospital-nursing home setting, in 2008 but even the application of the criteria seemed to vary at each attempt.)

    These are quotes of sections from the document:

    “6.6 Home care packages in excess of eight hours per day would indicate a high level of need which would be more appropriately met within a residential placement. These cases would be carefully considered and a full risk assessment undertaken.
    6.7 Persons who need waking night care might generally be more appropriately cared for in a residential placement. The need for waking night care indicates a high level of supervision day and night.”

    • Author
      Angela Sherman 1 year ago

      Hi Ann – sorry for this late reply. Yes, all CHC teams must abide by the Care Act. It’s essential. Sadly we hear may reports of assessors either being unaware if their duties under the Care Act or simply ignoring it. If your mother lacks the mental capacity to make a decision about where she wants to be, a Best Interests meeting may need to be held. This should take place before anyone attempts to move her. Take a look at this article too: http://caretobedifferent.co.uk/continuing-healthcare-funding-and-choice-of-care-home/ I suspect the local ‘policy’ you’ve seen is purely for reasons of cost, and not for the best interests of people needing care, and yet a person’s care (not cost) is at the heart of all CHC guidance. Thanks for your comment.

  12. Dawn 1 year ago

    A lot of very interesting information here about the new Care Act and process of Continuing Healthcare (CHC) assessments.

    No matter how hard I try I cannot get a definitive answer to my question so hopefully someone here may be able to advise. My aunt is currently in a private residential home who are managing her advanced dementia extremely well. I have asked her GP to instigate a CHC assessment as I feel as her health has deteriorated on so many levels she should be eligible for health funding and not paying for her care out of diminishing funds. I have been told by many parties that if she is eligible for CHC funding she will have to move to nursing care. We don’t want this to happen so therefore reticent to consent to the process in fear that she will be forced to move.

  13. john Petters 1 year ago

    Here’s a very interesting response from the Council’s solicitor today. Note the last line in particular.
    “The CCG drafted the DST. I wish to ascertain why that phrase was used. The CCG are unable to provide me with a copy of their response to your complaint on this point due to confidentiality.
    I would be grateful if you would scan me a copy.
    Both the social workers have advised me that they were signing off to the conclusion of the DST , that your mother is not eligible for funding, rather than every word in it.”

  14. Leigh 1 year ago

    Should the approach to social services for an assessment also be followed if the applicant is in a care home?

    • Author
      Angela Sherman 1 year ago

      Leigh – it is the NHS that carries out the Continuing Healthcare assessment process. Social services carry out an initial care needs assessment (not a financial assessment) and then should also properly consider a person’s potential eligibiity for NHS Continuing Healthcare. It does’t matter where the person is, i.e. they may be at home, in a care home or elsewhere.

  15. john Petters 1 year ago

    The Recommendation on my mother’s DST stated,
    “but when considering her needs in totality the majority of her care needs as they currently present are within the level that could legally be provided by the local authority and as such Mrs. X is currently ineligible for CHC”

    I asked the CCG which health needs form the majority of needs which the county council believes it can fund legally? The CCG replied,”X has asked this question of X County Council Adult Social Care and to date they
    have not responded. X will continue to prompt for a response and share with you once received, alternatively you may wish to ask them directly.”
    I asked which needs does it believe cannot be funded legally? The CCG replied, “Please refer to the answer above”.
    This evening I had a reply from the County Council (with a threat of legal action for recovery of £57K of fees which I’m refusing to pay):
    “For ease I will address matters you raise under headings.
    Continuing Healthcare and the limits of ECC’s responsibilities

    Continuing Health Care (CHC) is an NHS scheme and as such, it is the responsibility of the local Clinical Commissioning Group (“CCG”) to identify if your mother is eligible of not for it. X County Council identified that your mother may be eligible for CHC but did not make the decision.

    If you are unhappy with the result of a decision concerning eligibility for CHC including a Decision Support Tool, then you should approach the relevant CCG. In relation to your mother. The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care 2012 governs this area and includes a dispute resolution process (I refer you specifically to paragraphs 145 to 158) if you wish to challenge the determination on behalf of your mother.

    The Continuing Healthcare assessment
    I am satisfied that the process for assessing and determining eligibility as set out in the National Framework has been followed in this case, and that, notwithstanding, the error in your mother’s age, an appropriate and robust clinical assessment has been conducted”.

    The Council is now trying to shut the response to a statutory complaint down without providing the answers. They won’t tell the CCG or me what needs my mother has which they cannot legally supply. There are obviously some because the word “majority” is used in the DST Recommendation.

    The further problem the Council has, in my view, is that if they are supplying services unlawfully, they cannot invoice my mother for them.

    Any views please?

    .

  16. Heather Twomey 1 year ago

    Wonder if someone can help. I have a CHC assessment on Friday and have today met with the person from the local authority who will also be in attendance and has seen the health and care needs of my Mum first hand and also looked through her notes at the Nursing Home. However, she appears to give the impression that she cannot overturn the decision by the CHC nurse assessor. I did say that she has a legal obligation not to accept the responsibility if my Mum’s care needs are secondary. At the CHC assessment is anyone able to advise what the social worker can and cannot accept and exactly what role they can play – so at least I can remind them on their responsibility – hope that makes sense?

    • Author
      Angela Sherman 1 year ago

      Heather – what you said to the social worker is correct. He/she has a legal duty to refuse to accept responsibility for care if your mum’s needs are beyond the local authority’s legal remit. You could write to the Head of Adult Care at the local authority (LA) and stress that the LA is now potentially acting illegally.

  17. Bernie Crean 2 years ago

    Hi Neeta.

    That is correct practice when someone is admitted into Hospital. I’m assuming your son is cared for at home in the community and has carers paid for by CHC funding. With every admission into hospital of someone who has complex care needs there must be an assessment of their ongoing needs as per regs and legislation affecting discharge planning. Needs can change and this would impact on whether someone remains eligible for CHC or whether they require increased funding or a change of care setting. There must be an annual review of CHC as per the NF, or sooner if needs change. Being admitted into hospital could trigger a full review of care needs and this would be compliant with the National Framework.

  18. Neeta 2 years ago

    I have been told several times that when a personal receiving Continuing Healthcare funding gets admitted in a hospital the person is not allowed to take their carers in a hospital to look after them whilst admitted. Also when discharged, the hospital assesses if a person needs are changed or increased. I have been told by my CCG that each time my son was admitted in the hospital, it is a routine for the hospital to assess any increased in care.

    • Author
      Angela Sherman 2 years ago

      It is vital that, on discharge from hospital, there is a proper assessment of ongoing care needs for the purpose of putting in place or continuing with the right care and also for funding purposes.

  19. Bernie Crean 2 years ago

    Hi Barry

    Also note that the Framework states that they must fund all assessed care needs and that they must also have a detailed care plan as to how these needs are being met. This care plan must show all risks and how planned and unplanned care is being met. Quite often the CCG will not have written up a detailed care plan. This is separate from the DST or any assessments already made as part of the CHC process. They must write up a detailed care plan which is then used by the provider to meet the assessed need. If there are complex manual handling needs then the Manual Handling regs state there must be a detailed manual handling plan. This M&H plan should clearly outlines risk and includes guidance to carers as to how to transfer and reposition the vulnerable person.

    CHC funding cannot be removed without the involvement of Social Services being part of that review, the CCG cannot make a unilateral decision. This applies even if that person could be self funding. In any review they must use the previous DST to see if needs have changed. If they have changed then there needs to be a full MDT (incl a LA rep) and the MDT must then complete a new DST to show the changes. You should be invited to be part of that review and MDT. If you disagree with the MDT recommendations then you have the same formal right of appeal. I would go along to this review they are planning and make sure you are fully aware of what they are doing and what evidence they are looking at.

    Every CCG should have a policy outlining their CHC funding responsibilities and this will outline how client choice over how those assessed care needs can be met. I would request a copy.

    Good luck

  20. barry 2 years ago

    Hi – Would any one be able to help. My wife is in the late stages of Alzheimer’s and we got CHC funding on the 25 February this year. We the asked if we could change providers, to which they agreed as the new provider was more expensive. I have just had a call from the CHC to say they want to come out to see if what CHC is paying for is meeting my wife’s needs. It seems odd that they want to come out when they have just approved it for 12 months. Why would they do that?

    Barry

    • Author
      Angela Sherman 2 years ago

      Be vigilant, Barry. I don’t want to sounds unduly negative, but there is always a chance they will be looking for an opportunity to take the funding away again. I hope that’s not the case, though. There is a three-month CHC review, but it’s too early for that. On the other hand, they could simply want to check that the care provider can cope. It’s difficult to say at this point.

  21. Peter 2 years ago

    Hi
    I’m in the same situation as it seems are most of folk who are in touch with this site, 10 years of ping ponging letters to and fro, and the powers that be have finally turned down the claim, I have now appealed, for what it’s worth, I’m now 80 odd years old ! Has anyone any idea of what per cent of claims have been successful ; ? Even the brain of Britain would be lost trying to untangle the problems the system deliberately creates.

    • Author
      Angela Sherman 2 years ago

      I suspect many people would agree with you about the system, Peter.

  22. Bernie Crean 2 years ago

    Hi

    The Dept of Health has just published statutory guidance on applying the Care Act ’14. This guidance states very clearly the duties of the LA and what must happen to fully comply with the Act in every LA assessment. This includes the need to assess if a persons care needs are within what the LA can lawfully fund (LA limits) and the need for the assessor to be trained and competent to assess someone with a specific condition and to consider if needs may be eligible for CHC. Completion of a checklist is the standard screening for this. https://www.gov.uk/guidance/care-and-support-statutory-guidance

    • Author
      Angela Sherman 2 years ago

      Many thanks, Bernie – very helpful.

  23. Laurence 2 years ago

    Thank you Bernie,
    You say
    ‘ Sadly very few are prepared to fight as hard for people classed as ‘self funders’.

    I presume that if they (LA) have been requested to undertake an urgent SS assessment and they have also completed a checklist and a full MDT/DST panel is to be convened they are obliged by law to make a decision re the LA limit given the facts even though the individual applying for CHC funding is currently self funding. The fact that they are self funding is irrelevant unless during the course of the process they are deemed not to be health care AND THEN are means tested for local authority funding.

    Laurence

    • Bernie Crean 2 years ago

      Hi Laurence.

      The Care Act requires a LA to undertake an assessment if it is requested. They must carry out a face to face assessment of someone who has complex care needs. And as I pointed out regulations 5 & 7 requires them to have training and competency to be able to assess any particular condition ( i.e. ask them if they have received training on Alzheimer’s, dementia, parkinsons etc? If not then they must include someone that has.) They must consider if someones needs are above the LA limits and must have training and competency with regard to CHC, case law and legislation in order to carry out an assessment as defined by the Care Act.

      Therefore they have a legal duty to make a professional judgement on whether someones needs would be within what their LA could lawfully fund regardless of whether that person is a self funder or not. They are not allowed to discuss finances under the Care Act until they have completed an assessment and have identified that persons eligible needs and a care plan. Only then can they consider finances and apply the means test.

      This link to guidance on the Care Act is very good. The truth is many Social Workers and very few NHS staff have a good working knowledge of the Care Act and what their statutory duties are. If they breach the Act then you can complain and proceed to the LGO if not satisfied. Additionally you can complain to the SW’s & NHS professional professional body if they ignore legislation and process as well as submitting complaints and appeals. Personally I always advice my clients to do this when there has been blatant disregard of legislation, when communication and professional conduct is of a poor standard.

  24. Author
    Angela Sherman 2 years ago

    Thanks very much, Bernie, for all the additional information. That’s really helpful – and much appreciated.

  25. Laurence 2 years ago

    If the reference link to the statement, ‘Only the local authority representative can assess if care needs are more than the local authority limits’ can be confirmed, then this will be invaluable for many people. Is this an opinion or fact on law?

    Laurence

    • Bernie Crean 2 years ago

      Hi Laurence

      It is law that only a ‘relevant’ local authority (LA) is required under the Care Act to assess someone in their area. A relevant LA is the one which covers the area where that person resides. Legislation since 1948 Social Services dictate that they (the LA) are restricted with regard to what services they can lawfully fund, by law they cannot fund any Health care needs. The Care Act maintains this legal limit to what Social Services can fund i.e. the LA limits. Only an employee (LA rep) of that relevant LA can assess if someones needs are within what they can lawfully fund or beyond this. A member of the NHS does not have a legal right or duty to lawfully act on behalf of a relevant LA and they cannot assess if that person’s needs are within or beyond what that relevant LA can lawfully fund. This is stated in the CHC National Framework, was a key issue in the Coughlan case and it was the key issue in the Grogan case (cannot be a gap between Social Care or Health) and is covered in the CCG regulations of 2012, also known as the Standing Rules. See http://www.nhs.uk/choiceintheNHS/Rightsandpledges/Waitingtimes/Documents/nhs-england-and-ccg-regulations.pdf

      At some point in the CHC assessment process there must be consideration of whether needs are above or below what the LA can lawfully fund. The Framework is very clear that a decision on eligibility for CHC cannot be made until this has occurred. Legally if care needs are assessed as being beyond what the LA can lawfully fund then it must be seen as being a primary health care need and eligible for CHC. In my previous role as an LA manager we frequently went into dispute with the CCG as we held firm that a person’s needs were above the LA limits. This happens frequently in cases where the LA are funding the care, as it affects their own budgets. Sadly very few are prepared to fight as hard for people classed as ‘self funders’.

  26. Conrad Jones 2 years ago

    Can you help clarify whether the Care Act 2014 would apply to a retrospective claim for Nursing Home Fees from 2010 to 2012? My Father’s claim for Nursing Home Fees is still ongoing.

    Would it help force Local Authories to attend a Local Resolution Meeting held in CCG Offices in January of this year (2016) for instance ?

    Thank you for your help.

    • Bernie Crean 2 years ago

      Hi Conrad.

      I would doubt that the Care Act could be used retrospectively. I would not think it would be required anyway as the Framework, case law and the legislation that was in force prior to the Care Act should be sufficient in any review.

      It is difficult in many areas of the country to get a local authority (LA) rep involved in the CHC assessment process. I would doubt that they would be prepared to attend a CHC resolution meeting as this is a CCG responsibility and not that of the LA.

  27. Barry 2 years ago

    I have had a 12 month review and the assessor turned up with a laptop I said to him how do I get a copy. He said you don’t and then I said what is to stop you from change the facts when you get back to the office and he just smiled. Am I wrong in asking for a copy ?
    The other point I raised was will I hear with in the 28 days. He said this a review and the 28 days does not apply. I feel that is wrong, an assessment by any other name is still an assessment. An assessor turns up with a Decision Support Tool (DST) form to assess the current situation. Am I right or is he right? Many thanks for all your help.
    Barry

    • Bernie Crean 2 years ago

      Hi Barry. If anyone takes a audio recording or notes of a formal meeting then that falls under the Data Protection Act and you have the right to request a copy of that record (written or audio) by was of a ‘subject access request’ (SAR). I now advise all my clients to advise the professionals that they find it difficult to take notes and will record the meeting in order to have an accurate record of the meeting. This is easily done on a smart phone. Failing that try and have someone there to take notes for you. With any review of FNC or CHC it must adhere to the CHC guidelines as laid out in the framework. See para 139 and also page 94 of the National Framework to see the process that must be followed. See para 67.3 which states you must be given a copy of the DST so that you can request a review of the outcome of the review.

    • Chris-G 2 years ago

      Conrad have a look at this law.http://www.legislation.gov.uk/uksi/2012/2996/part/6/made
      Section 6 is the relevant part. This is law and it is perfectly reasonable to use it at IRP . What you can’t do is try to make new law by trying to create precedents after dismantling the existing law.

  28. Author
    Angela Sherman 2 years ago

    Thanks for your comments, Conrad. The comment by the CCG Panel Chairman about the Coughlan case having nothing to do with NHS Continuing Healthcare is unbelievable! It is central to it. I agree with you that a person cannot be impartial when they are being paid by one of the parties involved in a case. That is clear. Regarding the local Council, they must be involved in the decision making process: http://caretobedifferent.co.uk/nhs-continuing-healthcare-should-social-workers-be-involved/ and this is reinforced in the new Care Act.

    • Chris-G 2 years ago

      What is outrageous generally Angela, is that anyone that is denied a DWP Personal Independence Payment (PIP) is allowed an immediate appeal to the lower tiers (tribunals), of the courts. Usually chaired by lawyers. Such action creates a path to continue the appeals right up to the highest courts. There is a similar assessment process for PIP, too.
      Such a right of genuine appeal is missing from the CHC process for obvious financially motivated reasons.
      The NHS does not like the word precedent at all. They even write apologies and include the phrase when compensation is being paid out, as if it forms part of a contract with the injured party. “This will not form a precedent”.
      There again, how many elderly demented patients ever get to the CHC appeals stage? Let alone have the time left to fight all the way through a tribunal, the high courts and then on to the supreme court.

    • Conrad Jones 2 years ago

      Hi Angela,

      Is there a site that will provide the orginal Legal Courtroom Documents for the Judgement made for Pamela Coughlan? Her Case was heard in 1999 in the High Court – I believe – and she also made an appeal.

      The Chairman made a comment that Pamela Coughlan’s case was centred around a broken promise made by the NHS to pay for her funding and he ignored the Judgement that the Local Authority was unable to provide for Pamela Coughlan’s needs and so it was decided that her Primary Need was that of Health and the NHS were then forced to pay for her Care.

      I know that scans of Legal Cases are available in the United States but am not sure whether the same applies in the UK. Have you or your Legal Associates ever seen the actual documents from the High Court? I would like to download them and use them in our Appeal in the IRP Meeting as the Chairman – I believe – tried and succeeded in throwing a swerve ball in the Meeting – and argument that we’d never heard before regarding the Coughlan Case.

      This is only a part of my Father’s case for retrospective Nursing Care Funds, as we have many documents detailing the lack of ability for the Social Services to cope with my Father’s Health Needs – and – I still do not understand why the Local Authority would wish to cling to a Patient even when they are not equipped to help them and their family, sufficiently. And why the NHS would then not say that the LA is not able to provide the necessary care for a Chronically Ill Patient? – M-O-N-E-Y ! is the only logical reason and the Chairmans remarks were centred around saving M-O-N-E-Y and nothing to do with assessing a Man’s Health Needs who he”d never even bothered to meet n person and also accepting that the Chair of the LRP Meeting was not Medcially Trained and did not speak with the Care Home Manager, my Father’s GP, CPN or Social Services. Remembering that Social Services refused to even attend the Meeting, so avoiding direct questions concerning their failed Care.

      If legal documents (Coughlan Case) are available can you help with locating them please?

      Thank you.

      Conrad.

      • Conrad Jones 2 years ago

        I think I’ve found a copy – although not an official copy:
        http://www.tsogpss.co.uk.gridhosted.co.uk/nhscare/coughlan.htm

        There’s a link from:
        http://www.tsogpss.co.uk.gridhosted.co.uk/nhscare/solihelp.htm

        Which goes to the HM Courts:
        http://www.hmcourts-service.gov.uk/judgmentsfiles/j282/coughlan.htm

        but this just gets redirected to:
        https://www.gov.uk/government/organisations/hm-courts-and-tribunals-service

        Searching for “Coughlan” just gets irrelevant links to do with “Syria” and “Nurses fighting Ebola” – nothing about CHC.

        • Author
          Angela Sherman 2 years ago

          Thanks for the links, Conrad. Bailii is a useful site: http://www.bailii.org. Just type ‘Coughlan’ into the search box. Also, if you’re searching generally online, use phrases like ‘the Coughlan case’ and ‘Coughlan case’ to bring up information about Pamela Coughlan.

          • Conrad Jones 2 years ago

            After receiving a letter from NHS England – providing a Request for an IRP, the leaflet contained states the following:
            “Attendance by solicitors
            Some families appoint a solicitor to act as an advocate for them at IRP. It is important for them to be aware that the IRP is not a legal process. Chairs of IRPs will not allow proceedings to be drawn into discussions on points of law.”

            https://www.england.nhs.uk/wp-content/uploads/2014/05/irp-leaflet.pdf
            Which means that the Law is completely barred from discussions. In the LRP the details of evidence of why my Father’s needs were not discussed, they just said that they read all 24 pages of a letter with 30 pages of reference documents.

            Is it lawful for the NHS to state that they will not discuss the Law? – if so – then there’s no point in going to the IRP as they avoided even discussing the documented evidence in the LRP. If they refuse the LRP can we go straight to the Ombudsman? It’s now been four years since starting the Retro-Claim.

        • anna 2 years ago

          “Only the local authority representative can assess if care needs are more than the local authority limits.” Like you I read Bernie’s article with great interest especially the line quoted above.
          Could Bernie confirm where I could find this rule quoted if it is part of Legislation? as it would be fundamental to a retro claim we have been fighting for our dad since 2012. At the LRP meeting recently where the LA chose not to attend or give any input at all (in fact they refuse to have anything to do with any reviews in our area), the NHS still made a decision that the LA legal limit for supplying care to my father was NOT reached. So you can see if they are not entitled to make that decision on behalf of the LA, their final decision not to award CHC funding to our dad retrospectively without consultation with the LA, cannot be valid?

          • Conrad Jones 2 years ago

            Bernie, I would also be interested in the answer to Anna’s question.

            Thank you.

            Conrad.

          • Bernie Crean 2 years ago

            Hi Anna

            See my answer to Laurence below. It is a legal fact that only a local authority (LA) rep from that relevant LA can lawfully assess if a persons needs are within what that LA can lawfully fund. An NHS employee does not have a legal right to make this judgement. The reality is that it is difficult to get an La rep involved in the CHC process and even if they do many have no training or knowledge of legislation or how to assess if care needs are above or below the LA limits. So if they do attend many just sit there passively and offer little input into the process. Many CCG’s will state they have invited them to the MDT and they cant be blamed if they don’t turn up. My article was written to try and counter this and to use the Care Act to lock in an LA rep from the outset. If the LA rep fails in their statutory duty under the Care Act then you can lodge a complaint with that LA and take the case to the Local Govt Ombudsman (LGO). This is separate to using the CHC appeal process to the Health Ombudsman. It is a fact that many LA workers do not understand the Care Act and LAs are being taken to Court and to the LGO. I have a case at the moment where we are applying the strategy in my article. We have asked the LA to assess under the Care Act and, due to complexity, this needs to be a face to face assessment. We have not mentioned finances, as this cannot be discussed until after any LA assessment. We have not mentioned CHC at all. Come the day of the assessment the LA assessor will assess the risks and care needs of the client and will then be advised that under the Care Act they have a duty to complete a CHC checklist as they must consider if that person has needs that may be eligible for CHC. In this way we will have ‘locked in’ an LA rep who must be part of the MDT that will follow (if it is a positive Checklist), as their social care assessment and their Checklist will require them to be involved. Remember that the threshold for the Checklist is set deliberately low. As a Social Care manager in my LA I was responsible for it being standard practice that a Checklist was completed in every social care assessment. Since the Care Act has come into force, the need to consider CHC has been added to every Social Care Assessment document. I would therefore encourage everyone to make use of the Care Act as a starting point in the CHC process. I have been making solicitors and advocates who specialise in CHC aware of how this approach can overcome many of the problems of getting an LA rep involved in the CHC process. The Care Act also states that any assessor must be fully knowledgable and aware of CHC. Read this and bring to the attention of any LA reps who are unaware of their duties under the Care Act. Note reg 5 that requires the to have the appropriate training and competency. This means they must have the skills in specific conditions to asses that need (dementia, parkinsons, MS, etc.) and if they don’t, to make sure someone is involved who does. If you ask the LA assessor about any training they have had with regard to that clients condition it is unlikely that they will have had any at all – or at least none in recent years. Note Reg 7 which relates to CHC. Reg 5 and Reg 7 state they must have training and competency on CHC and legislation to know how to assess when needs are beyond the LA limits. They must consider (via a Checklist) if a person may be eligible for CHC and refer to the CCG.

            http://www.legislation.gov.uk/uksi/2014/2827/pdfs/uksi_20142827_en.pdf

  29. Conrad Jones 2 years ago

    Coughlan Case: The argument against the Coughlan Case used by the Chairman of the Local Review Panel at the CCG recently was that Pamela Coughlan never received CHC and she took the NHS to Court as they had made a promise to provide free care and accommodation. The CCG Panel Chairman (who was a Magistrate) said that the Coughlan Case is not a Legal Precendent for determining Health Care Needs and did not relate to Continuing Healthcare?

    Is he right? If he is then why is it in the National Framework? We want to take our claim further to the Independent Review Panel and a key issue is scope of Local Authority.

    Note: At our recent LRP Meeting the Local Authority refused to attend so they had TWO Nursing Assessors and had to act on the Local Authority behalf – No reason was given as to why the Local Authority wasn’t present, but apparently the County Council NEVER attend these reviews – is that legal?

    • Conrad Jones 2 years ago

      I might add to my comment above about the LRP Chairman:

      Just because he’s a Magistrate does NOT mean he knows anything about the Law. Anyone can become a Magistrate (so long as they do not have a Criminal Record) and no Legal Qualification is required – i.e. To be a Magistrate doesn’t require a Law Degree or Legal Background – Magistrates have access to Legal Advisers in Court.

      I asked him at the start of the Meeting – “I suppose you have a Law Degree” and he replied he didn’t – he did not have any qualifications in Law.

    • Conrad Jones 2 years ago

      Something else about the Magistrate – He said that he was “Impartial and Independent” and did not have any Legal or Medical Training and was contracted in just to Chair the Meeting. I asked him who he was paid by ? He said the NHS pay him – to which I said “well how can you be regarded as impartial then?” – not exactly what I said but the meaning was the same. He just repeated that he didn’t normally work for the NHS and that he was only brought in for this Meeting and didn’t live or work in the Area. But he was still contracted by the NHS and paid with Money – by the NHS.

    • Chris-G 2 years ago

      Conrad, the Magistrate is soooooo wrong.The entire National Framework is loosely based upon the case.
      Para 1.2 Page 50 of the Framework states:- “The powers and duties of local authorities are a matter of Statute and case law, including the Coughlan Judgment.” This of course fails to note that there were also limitations and duties imposed upon the NHS by virtue of disallowing the LA’s to provide healthcare.
      Page 124. Annex B is a synopsis of the case. The guy/gal is an idiot for trying that one on.
      There are in fact 21 mentions of Pamela Coughlan’s name. Then at the end it goes on to state that:-
      “In respect of Ms Coughlan, her needs were clearly of a scale beyond the scope of LA services.”
      They were therefore, within the scope of the NHS’ services.
      Direct comparison of her needs and the assessed patient should help get you through the inevitable Independent Review Panel. My mum’s last one was led by a Barrister.
      Even the phrase “Primary Health Care Need” is lifted and corrupted from the Coughlan case. The Judge in that case said something like:- and her needs although predominantly social in nature are, when viewed together, primarily healthcare needs and as such are the responsibility of the NHS and not the Local Authority. I wonder if the local appeal panel chair is supposed to be a knowledgeable practitioner in the same way as the assessors are supposed to be. It appears he isn’t. Should he even be sitting there?

      • Conrad Jones 2 years ago

        In my opinion – the Chair of the Meeting was a mere “Actor” paid to provide a charade of impartiality – and stumbled around after being challenged about said impartiality after being challenged about “who actually pays him to sit on these meetings” – “well the NHS does – but that doesn’t affect my decision” – no of course not – and there’s another Pig flying over head.

        The RetroTeam Letter and Report on the LRP Meeting hardly mentioned what the Chairman had said in the Meeting and was a more suttle and muddied version of his attempt to skuttle our Legal Test Case (namely Pamela Coughlan’s Appeal Case) – it mentions the vague and ambiguos Criteria:
        NATURE
        UNPREDICTABILITY
        COMPLEXITY
        QUANTITY / QUALITY (might have this one wrong – I don’t have the document in front of me)
        The Chairman throughout the LRP Meeting kept using strange terminology – that which a Lawyer might use and not a Health Care Professional – that of “How the client was Presented” – which meant in laymans language – How my Dad was on any particular day and what Care he needed and was he a threat to anyone perhaps. The terminology is designed to intimidate and unbalance the Appellants along with the apparent Friendly and Easy going introduction of the Meeting Members from the CCG – it’s all very friendly on the day and a few weeks later they can then turn down all appeals and say that despite my Father having severe dementia and being a danger to himself and others (namely my Mother who since died and tok the full brunt of my Father’s worsening condition with non-existent help from the LA), have the nerve to say that my Father’s “Presentation” in the period in question was NOT of a Nature, Complexity or Unpredictable level which was beyond the scope of the Local Authority – What a surprise! Despite an NHS Hospital being unable to cope with him and a Care Home callng the Police – when his MMSE Score dropping from about 26/30 two years previous to that down to 16/30 and then rapidly going to 3/30 – now he’d get 0/30. Despite the Medical Evidence that he was suffering and causing immense suffering around them it was still deemed credible that the LA was providing sufficient services wen in fact the servies they provided were non-existent or just a series of failed attempts and bad (if not ) damaging advice by “Care Managers” who neither Cared or Managed. A total Joke if it wasn’t so serious.

  30. Barry 2 years ago

    The conclusion I come to for the so called nursing needs is that if they say no to nursing needs then it must be social needs and it then becomes a L/A issue.

    • Author
      Angela Sherman 2 years ago

      The assessors may say that, Barry, but it doesn’t necessarily mean they’re right.

    • Chris-G 2 years ago

      Barry: The total needs are what must be assessed. Even the DST domains must be assessed as a whole. (IRP stated that too). The Coughlan case decided that Pamela Coughlan’s needs – and the needs of several others, (including Ross Bentley, a bedbound patient) – were of a predominantly social care nature. BUT…….. Taken as a whole, the very different needs of each of them were primarily healthcare needs.
      People are falling into the trap that there are two types of needs and if they include mainly so called social care then the needs are not of a medical care nature and then the patient cannot qualify. Independent Review Panels have agreed with me on that so far, three times. They agreed that the NHS and LA by using that logic were assessing incorrectly. For example, is giving a vitamin (MEDICAL) injection more complex and/or intense and/or unpredictable than the (SOCIAL CARE) constant vigilance and verbal and physical interventions that a 16 stone aggressive Alzheimer’s patient requires? There is also a confusion of so called activities of uncomplicated, unintense and predictable daily living being confused with so called social care and they are very different too.

      • Barry 2 years ago

        Thanks Chris. You have been a great help. These people run rings around people like me as they know we don’t know. Thanks again.
        Barry

  31. barry 2 years ago

    CHC assessment and the moving goal post.
    In the early days it was about the scores: two Severes and a High and you were almost assured of getting funding, but the guys said we are still funding too many. So the next year it was about the scores and now the emphasis was on the scores and a Primary Health Need. Nope, still giving too much away. So the following year it was about the scores and a primary health need and the new emphasis was on the four characteristics. Nope still not bringing the figures down, so this year it’s about the scores, primary health need, the four characteristics and the new emphasis this year is on whether the needs are Nursing Needs. So as time goes on they keep coming up with new criteria to qualify for CHC funding, so my point is – is there any way of obtaining a list of what they consider to be Nursing Needs.
    I hear tell they are talking about changing the DST to a check box style of form.

    • Author
      Angela Sherman 2 years ago

      It has always been about a Primary Health Need – but what may, many families report is that the eligibility criteria that establish a Primary Health Needs are wrongly applied and care needs are incorrectly trivialised in the process.

  32. Sabine 2 years ago

    Can my partner apply for CHC even though he has received a personal budget for the last 2 years? His health has deteriorated however 2 years ago we were told by his OT he is not eligible for NHS continued healthcare because he is not terminally ill and he would be refused. Hence he was assessed by a Social Worker but he cannot fund therapies with his budget, only “care needs”.

    • Author
      Angela Sherman 2 years ago

      Sabine – the information you’ve been given about NHS Continuing Healthcare is incorrect. A person does not have to be terminally ill to receive Continuing Healthcare funding, Sadly, there is a huge amount of ignorance about that amongst health and social care staff – and it leads to many, many people wrong paying for care.

  33. barry 2 years ago

    At what point does it become CHC and not LA. There is I think a legal point where the council cannot take it on. What I would like to know is where is that point ..

    • Author
      Angela Sherman 2 years ago

      Barry – take a look at Bernie Crean’s comment above.

  34. barry 2 years ago

    Hi Bernie, what they tried with me was to split the funding between the L/A and CHC how does that work, who is responsible for what.

    • Chris-G 2 years ago

      Hi Barry,
      That looks like yet another ploy to get some of your loved one’s cash… Even if it is only 50% of what they would have paid out via the council charges. Then of course such splits can be made to change over short periods of time without a full chc asssessment. After all your loved one would still be receiving some chc funding and as such they would not need a full assessment to see it withdrawn.

      I do have a real problem with this. When the argument is whether the accommodation is purely ancillary to the care that goes on within it…… How can someone only get 50% of the accommodation paid for? How is the other 50% of the accommodation ancillary to the care that goes on within?
      I consider that accommodation is either ancillary or it is not.

      Just an opinion. All the best.

    • bernie crean 2 years ago

      Hi Barry

      I have come across this joint funding ‘compromise’ whereby the CHC team and Social services settle their differences by arriving at a 50/50 split to fund care needs. In the majority of cases when this happens it is because Social Services will not accept that the care needs are predominantly social care in nature . Rather than insist on the client being eligible for CHC they back down from maintaining a position that the overall needs are more than incidental OR ancillary (add on OR occasional in laymen’s terms) to merely meeting the clients accommodation needs.

      When I sat on CHC panels where a case was being debated and disputed the CHC lead would offer to resolve this by stating ” lets call it 50/50 then” and if the Social Care lead wasn’t strong enough they would capitulate and agree to this ‘compromise’ even though the evidence of needs was clearly showing that the care was a primary health need and way above mere social care.

      The CHC framework guidance explains on page 35 to 36 & 89 to 92 what joint funding is and how it should be assessed ( https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/213137/National-Framework-for-NHS-CHC-NHS-FNC-Nov-2012.pdf

      The spilt of 50/50 is frequently a split that is plucked from thin air. This is outside of the framework guidance, there must be a clear assessment and breakdown of the daily care to analyse exactly what intervention is deemed a health need and what is a social care need. As a Social Care manager I insisted on compliance with the guidance if joint funded was suggested rather than full CHC and would ask the CHC nurse and Social Worker to show me how they have arrived at the split in care.

      The case study on page 90 to 91 of the guidance indicates how the care needs of ‘Jim’ are broken down for each day and the week. As can be seen it isn’t a case of just plucking a split of 50/50 out of the air. The MDT must do a full care intervention analysis of each days care interventions in order to identify if it is social care or health care and to quantify the actual hours in each case.

      In ‘Jims’ case his daily care is seen as 5 hours health care and only one hour for social care. Even if they do this analysis, the MDT must still submit a recommendation to panel for joint funding and should also state why they have not recommended full CHC. You can challenge and appeal against the decision not to award CHC via the appeal process.

      I know that some MDT’s will try to avoid panel by persuading the client to accept 50/50. I would advise that if joint funding is offered ask them to provide a break down and analysis of care as required in the guidance. When they are asked to do this, the MDT find it hard to breakdown the actual division of needs. The example in the ‘Jim’ case is a community based set of care needs and is a simplistic example. In my view ‘Jim’, despite his health problems has a lot of attributes and functional abilities and it is easy to see why he wasn’t eligible for full CHC funding. However it is far more difficult to analyse and breakdown a division of care needs of someone with dementia who requires a quality and quantity of skilled care in a care home where there is continuous monitoring and care intervention 24/7.

      • Chris-G 2 years ago

        Hi Bernie, You wrote:
        “However it is far more difficult to analyse and breakdown a division of care needs of someone with dementia who requires a quality and quantity of skilled care in a care home where there is continuous monitoring and care intervention 24/7.”

        When my mum left a nursing home for a few months, her CHC continued at her own home. She had gained strength after a hospital stay but every other (Alzheimer’s related) need still existed. There was no split of responsibilities. Of course, the accommodation cost was unnecessary and therefore was correctly removed from her CHC funding.

        It also seems odd that in my mum’s case my father was providing nursing care, in the periods between scheduled registered nursing care, but from what many are reporting, the types of care he gave is judged to be social care (because a registered nurse did not give it) and therefore CHC funding can be halved.

        All the best.

        • Chris-G 2 years ago

          Hi Bernie,

          To continue: The Framework Practice Guidance PG38.1 states:-
          “Directions require that the DST is used to inform the decision as to whether someone has a primary health need, and if they do they must be deemed eligible for NHS continuing healthcare”

          It does not state that there is a halfway house as it were. A Primary Health Need (PHN) exists or it does not. Even a recent Independent Review Panel took that view in June this year.

          Remembering the Coughlan case, the judge did not make provision for a 50/50 split. He did not make the judgement of Solomon. He argued that the totality of needs was what mattered, be they so called social or nursing needs. With that in mind it is rules created since and not law that seems to have crept in, in this regard.
          As such, is there really such a thing as a partial primary healthcare need in relation to accommodation? How can accommodation be partially ancillary to the nursing care that a patient requires, simply because after a CHC assessment, the two parties go into private session and negotiate away, the result of a CHC assessment. There are no degrees of eligibility. And Coughlan’s needs were considered by a judge to be, in the majority, of a so called social nature, he nonetheless ruled that the totality of her needs were primarily health care needs.

          Another way of looking at this is the free care given by health care assistants to patients with primary health needs in the free accommodation that exists within hospitals.

          Here I quote PG 38.4
          “This Framework makes it clear (see paragraph 58) that “the reasons given for a decision on eligibility should not be based on….the use or not of NHS employed staff to provide care; the need for/presence of “specialist staff” in care delivery or any other input related (rather than needs-related) rationale.””

          You stated that it was possible (if in your view, impractical), to calculate in some way the ratio of types of nursing care provided to someone. Yet the Framework seems to deny practitioners that ability.

          The last time I was in a hospital, I had hands on care from a registered nurse upon admission, then again infrequently in the hours after surgical recovery and again, just before discharge, eight days later. Did I have a partial primary healthcare need that could be calculated by how often a registered nurse attended my needs during those eight days? If this splitting of needs and associated charging practice is permissible in nursing homes, (where they often hold non paying recovering NHS patients too), then it must soon be noticed by hospital administrators and then the costs of the hospital accommodation and the health care assistants can be applied equally to regular hospital patients. After all, my mum requires care with accommodation in exactly the same way as me when I lay in a hospital bed. Her needs – they try to charge her for them; my needs were given without charge.
          All the best CG

        • Author
          Angela Sherman 2 years ago

          It’s incorrect for CHC assessors to deem that care provided by a spouse cannot be nursing care. In CHC it’s irrelevant who actually provides the care; it’s the nature etc of the care needs that matters. This was reinforced in the Pointon case: http://www.ombudsman.org.uk/__data/assets/pdf_file/0007/1105/The-Pointon-case.pdf

      • Author
        Angela Sherman 2 years ago

        Thanks for your comment, Bernie.

  35. Bernie Crean 2 years ago

    Thank you for all the comments on my article. Apologies for not responding to them until now. Sadly the fight for CHC and compliance with legislation and guidance is ongoing.

    The Care Act is very beneficial for clients that are referred to by both the NHS and LAs as ‘self funders’, people who are above the financial threshold and are seen as being able to pay for and arrange their own care. It is true that families acquire a greater level of knowledge than many health and social care staff as they research CHC to identify what should happen.

    The Care Act now outlines very clearly as to what should happen. If the NHS or Social Services staff don’t follow this then you have the right to formally complain as well as also lodging an appeal against a decision not to award CHC. You can lodge complaints against individual staff. So if a Social Worker or Health staff do not comply with the Care Act regs, then I advise you complain. If as a consequence of their failure to recognise that care needs are beyond being a social care need and you fail to obtain CHC then there is a view that this is a safeguarding matter as that vulnerable person has now suffered financially though their failure to apply the Care Act.

    I would recommend that families read this Government document on the Care Act. It also covers what should happen prior to discharge from hospital. I’m currently dealing with a case with a ward based client where there has been a disregard of the Care Act by both ward staff and the LA……my perception being that this was because the person needing care was a ‘self funder’. From conversations with the ‘professionals’ it is apparent that they have little awareness of their duties under the Care Act.

    With regard to your post Elspeth, I would refuse to agree a discharge until they comply with the Care Act and carry out a full and comprehensive assessment of all her care needs, which is a requirement ‘before’ they complete a CHC checklist.

    From what you say about how poorly your mother is I would be amazed if she didn’t pass the low threshold of a CHC Checklist and proceed to a full assessment with an MDT and DST. From your description of her needs I feel she would stand a good chance of scoring high enough in several domains to get automatic CHC. She may even be at the stage where Fast Track CHC funding is appropriate.

    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/315993/Care-Act-Guidance.pdf

    With regard to defining what are the LA limits? There are many good articles on this website that can help with gaining an understanding of this. I would also refer you to look at what Prof Luke Clements states in his YouTube lecture: https://youtu.be/HrpFLLwGqhs or visit his website http://www.lukeclements.co.uk/lecture-series

    • Chris-G 2 years ago

      Hi Bernie,
      Complaining (even officially), does not seem to achieve much. After all the courts consider CHC funding to be a predominantly financial matter but eligibility panel members repeatedly get away with altering DST’s and MDT recommendations and they are exonerated having committed civil fraud by recklessness or criminal fraud by virtue of the deliberate dishonest act. Even to the point of passing one DST copy to a council….. Another that differs to the patient…… and use yet another in making the eligibility decision.

      The response goes something like; that they only have to abide by the law within the National Framework (which is not law at all). This is ridiculous. Try being a get away driver in a robbery and state when caught that you only have to abide by the highway code. See how far you will get. Yet the NHS and the councils do get away with it.

      As for Independent Review Panels refusing to deal with obvious illegalities or even to pass the matters up the chain……… It is again ridiculous. Yet they will rule in deliberate ignorance of accusations of wrong doing.

      Of course, the IRP process is designed to prevent any given case providing a legal precedent that other s could utilise. Again that is ridiculous. And all the while denying that legal advisors are not necessary in the process.

      All the best.

  36. Norman Crofts 2 years ago

    Bernie Crean’s comments are very enlightening. He says that “the assessor must have the skills, knowledge, and competence to carry out the assessment ……….and be appropriately trained” and “As such they must know how to assess whether care is beyond local authority limits” Also he says that “Only the local authority representative can assess whether care needs are more than the local authority limits”
    It sounds as if relatives claiming on behalf of patients were more aware of what are the “local authority limits” then they would be better equipped and in a stronger position to challenge opposition from the NHS. If local authority assessors are able to learn what are the limits could we not do the same? What are the limits?

    • Chris-G 2 years ago

      Hi Norman,
      Because the NHS leads CHC assessments and eligibility decision making, it is in fact incumbent upon them to apply the test of the ‘local authority limit’ to legally provide nursing care. Although they cannot impose the result of their deliberations upon the local authority.

      It is the local authority’s legal duty to ensure that decisions made by the NHS to deny or curtail CHC funded nursing care that is beyond their legal remit, are challenged. But the local authorities seldom do that. Even when evidence of illegality is presented to them they do not often react and enact their own dispute procedures. Whilst they continue to share the same Secretary of State it is not surprising that the LA’s are cowed into just doing what central government wants from them.

      In fact in 2011 I uncovered the fact that our local PCT (as it was then) and our council did not even have an agreed inter agency dispute procedure so that such disputes could be registered with the NHS. It was of course and integral part of the National Framework. Without which compliance, I would argue, the Framework should not have been being used.

      In 2011 a serious dispute involving the LA’s CHC representative and the PCT’s assessor could not be formalised to our side’s obvious disadvantage. Indeed the eligibility panel completed the partial DST for the lead NHS assessor and made the full MDT’s recommendation for them (in the absence of the LA representative), and then the panel verified their own falsified documentation and recommendation having invented evidence and DST domain levels (left with question marks by the NHS lead assessor), that were much lower than those argued by the local authority assessor. He was ignored (even by the LA’s directors), as were we. The PCT then went on to create accounting instructions and documents from this false information and DST documentation that were obviously false too. They also falsified the DST that they sent to us. It bore no relation to the incomplete original.

      The PCT/LA finally put a procedure in place but the NHS was forced at a Oct 2012 IRP to admit that they had only just done it. (They had since April 2009 to do so).

      Then since the 1st April 2013 CCG period began, I uncovered that the same lack existed. I was finally sent a draft copy that was created on January 8th 2014.

      This is significant because after 5 months of asking the council (at CEO level), for their copy I was sent the hurried draft copy by the CCG. The council very obviously did not have any way to dispute matters. Yet they repeatedly wrote that they would not assist us in the matter. Of course it was the case that that they once again did not have the means to assist us because it had been conveniently ‘forgotten’.

      The council’s directors eventually stated that they were using the 2009 process in the interim. Of course my exposure in 2011 that there was no dispute procedure made what they wrote to me, a deliberate lie in a financial matter. Some might call that criminal fraud.

      The CCG stated that they were using an old but different (to the council’s) 2009 Strategic Health Authority document in the interim. They stated in writing that it was the document that was previously used by the PCT. Yet again a lie. Because the document bore no relation to the dispute procedure that was eventually put in place late in 2011/2012.

      So there you have it. Lies, confusion, omissions, improper or incomplete procedures whilst all concerned were supposed to be competent, knowledgeable and of course, were being well paid to be. I like to think that it was all incompetence….. However I really do think that some of it was deliberate.

      The Association of Adult Care Directors, ADASS wrote at para 5(e. of ‘Commentary and Advice for Local Authorities on The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care.’

      http://www.adass.org.uk/adassmedia/stories/Publications/Guidance/commentary_oct07.pdf

      ‘Where the LA is otherwise likely to be responsible for funding all or part of a support package, [NHS CHC], we recommend that arrangements should be in place for the LA to understand, check and (where appropriate) challenge decisions of ineligibility for NHS Continuing Healthcare before they are finalised and communicated to the patient/family concerned. Such arrangements should include mechanisms for agreeing any joint funding where it is agreed that there is not entitlement to NHS Continuing Healthcare.’

      To answer your last question: They also defined a limit to their legal limits to provide nursing care as follows:-

      ‘The correct use of the DST is essential to ensuring a consistent approach to assessing eligibility. However inconsistency may continue if LAs or PCTs adopt different views on the combination of high/moderate (etc.) needs that would normally indicate a PHN. As one guideline it is suggested that anyone found to have the following combination of needs:
      • two or more high needs (or need above high), AND at the same time
      • three or more moderate needs (or needs above moderate) should normally be considered to be beyond the scope of LA provision.’

      This is of course guidance from the very directors responsible for national adult social care. The National Framework is also guidance. Like this ADASS guidance It is not law. The short regulation that spawned the Framework does not hold much that is represented within the Framework. Ergo much of the Framework really is just guidance. You might notice that ADASS do not here, discuss having 2 ‘severe’domain levels at all. The directors were earlier agreed that two ‘severe’ levels were sufficient to permit CHC funding.

      There was another similar report that qualified this guidance. It stated that ADASS had reviewed all CHC cases nationally and taken note of the domain levels awarded that had entitled patients to CHC funding. That report seems to have recently ‘disappeared’ from the internet.

      All the best CG.

      • norman 2 years ago

        Hi Chris G
        Many thanks for your enormously helpful comments. I find it amazing to see what goes on behind the scenes.

        • Chris-G 2 years ago

          Hi Norman,
          I could do this sort of thing all day if I had the time. There is oh so much more to this. Forged documents. Documents altered especially for Complaints handling and Independent Review Panels. Multiple versions of the so called same document. Accounting documents created from forged CHC documents. Making false statements or stating false law in a financial matter. Councils acting to send invoices during appeals that decide that care was beyond the council’s legal remit to provide. Councils falsely retaining payments when appeals decide that their legal remit to provide care was exceeded. (Retaining a false credit is a criminal offence under the theft act. Try spending the fifty grand that the bank accidentally puts in your account, see how long it takes to get you prosecuted). Banning people from communicating with the NHS. Council CEO’s taking five months to answer serious charges in e-mail/letters. Council Adult care Directors stating, “your questions are too hard to answer and it is causing my staff and I distress.” Failure to implement parts of the national framework. I wont start on the actual failure to follow procedures that have some actual validity in these matters.
          I can show everything I just wrote. But a longhand diatribe would be too much for even the most ardent of readers.

  37. Elspethblack 2 years ago

    My mother has been in self funded nursing care since 2008. She went into hospital with aspiration pneumonia on 23 September 2015 and was discharged after less than a week. I felt that she had been virtually thrown out of hospital as she was returned to her nursing home on the Sunday evening and the staff at the home were surprised to see her. She still had the cannula in the back of her hand and the only instructions seem to be that she was to be given liquid antibiotics. There was no recommendation from the SALT people, even though the nursing staff had told us that certain things that she normally ate were unsuitable. I only knew about her discharge from hospital because I rang before going to visit her. Since her return to the nursing home mam’s health deteriorated rapidly and yesterday, the family felt that she would die within a short time. We really feel that the home does not understand how to look after our mother. Mam has now been returned to hospital where they have told us that she is suffering from dehydration and an infection. This is on top of late stage dementia, COPD, pressure sores, unable to communicate, refusal to eat and drink, etc. I raised a query about the way mam was discharged from hospital via the PAL people, but am still waiting for a reply. Angela has previously confirmed that a CHC Assessment should have been done before mam was discharged, but I have been told that because mam was just being returned to the setting she had been in prior to going into hospital, they would not have to assess her. Is this the case? It doesn’t seem to be what the guidance says. Any advice would be appreciated.

    • Author
      Angela Sherman 2 years ago

      Sounds like a dreadful discharge process, Elspeth – if you can even call that a ‘process’. Very distressing. If your mum’s care needs have increased, then it doesn’t matter that she is being returned to the previous care setting, her needs should be reassessed. It’s all about her care needs; the care setting is completely irrelevant. See National Framework page 21 paragraph 58: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/213137/National-Framework-for-NHS-CHC-NHS-FNC-Nov-2012.pdf

      • Elspethblack 2 years ago

        Thank you for your help. I’m still trying to get a response from PAL, but with the advice you have given we will make sure our mother gets the consideration she deserves. I will let you know how we get on!

      • Chris-G 2 years ago

        I have posted elsewhere on the site; that my father in law was discharged from hospital with some inches of amputated thigh bone protruding from his stump pad that had rotted away. The hospital knew that he was in a nursing home. Ergo he could be nursed there. What they did not know was that, he had had his CHC funding withdrawn and as a result they were sending a very sick man “home to die” at his and not the NHS’s expense.

        The system used was called “discharge to assess”. I understand that it has become very popular. I do not see how it is legal because a checklist is not generated. Then because no NHS responsibility remains, the NHS ‘forgets’ to carry out a CHC assessment. If challenged, they insist that the nursing home should have asked for the assessment…… The same nurse that spends all day every day trying to keep 50+ residents alive and well must then remember to apply for and then administer CHC matters too. Ridiculous.

        My local NHS/Council even have a dedicated computer system to pass data about discharges. Of course we would never get to see what was said etc. So unlike a checklist we cannot easily challenge the rationale or the procedures used.

  38. kathie 2 years ago

    I have learnt that if you live in East Berkshire you can get CHC but if you are in West Berkshire no-one has it. How fair is that?

    • Author
      Angela Sherman 2 years ago

      The introduction of the National Framework in 2007 was supposed to end the postcode lottery in CHC funding – but it has done no such thing, sadly.

  39. Carolyn Allsop 2 years ago

    I have read with great interest Bernie Creans’ article and agree 100% qith his comments I was and still am caring for my dear mum who is 94 next week she has Altzheimers/vascular dementia and amongst a long list of other co morbidities she is an INSULIN DEPENDANT DIABETIC I have fought tooth and nail for Continuing Healthcare had nuerous MDT metings at one point more that 12 people in the room as everyone it sems is afraid of the ambiguous framewrok which it appears is used as law within the NHS! I got all of the supporting evidence they requested letters from 5 CONSULTANTS ALL OF WHOM WROTE
    THAT THEY FULLY SUPPORTED THE APPLICATION! i CAN NOT UNDERSTAND WHY WE BOTHERED AS THESE LETTERS WERE NOT CONSIDERED TO CARRY ANY WEIGHT.
    I complained and complained meeting after meeting I figure the paperwork and never ending meetings with the hierarchy at continual DST MDT cost in excess of £35,000 !!
    I took it as far as the NHS Review panel in Manchester this took six onths to be heard as they are inundated with reviews…surprise surprise ultimately they upheld the original decision. I have to say it is rather like complaining about rape law to Jack the Ripper, why are the NHS allowed to investigate themselves continually that in itself is a complete and utter nonsense. I have now been told to get a judicial review but to start that process will cost £8,000 !!
    I am particularly interested to read your points re Social Workers we had a situation where our managing social worker who was completely supportive of the application and refused to sign off the documentation as he felt mums care needs were indeed beyond the scope of the Social Services. Mum has to have her blood tested and have her insulin administered and then be fed within 15 minutes!! anyhow long story short the Director of Social Services sent along a member of staff who was leaving their employ in the next week he signed it off on behalf of Social Services to state that they agreed mums needs were social!! Once again the NHS was off the hook!
    we are now in a position where mum has carers going in to her one company refused her care and e mailed me stating that they had NO INSURANCE to take a blood test (all be it a finger prick) and for their staff to interpret the meaning of blood reading, this in their opinion is very clear that the needs are greater than social care can provide.
    Last Saturday a nurse went into my mum at 9am, administerd insulin and left as she had an emergency to attend to. I accept that but the situation should not arise. If mum’s carer not have shown up then potentially my mum could have gone into a diabetic coma and died!! it is completely disgraceful.

    • Author
      Angela Sherman 2 years ago

      Thanks for your comment, Carolyn. I can empathise with your experience and your views on what’s been happening in your mum’s case, and that the assessors seem to act as judge and jury over their own shortcomings – not to mention the lack of adherence to the Care Act by the local authority!

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