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.
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.
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.
Article submitted by Bernie Crean of Care Review Services Ltd.