Prior to 2007, each Strategic Health Authority had its own criteria for establishing eligibility for NHS healthcare funding – a free package of care provided by the NHS for an individual’s healthcare needs.
The outcome created a national ‘postcode lottery’ with confusion, uncertainty and inconsistency as to who would be eligible for free funded NHS care and who wouldn’t. Your chances of success largely depended on the area where you lived (hence ‘postcode lottery’), and how each individual local Health Authority applied its own policies when determining the outcome of an application for NHS funding.
The system was fragmented and the outcomes as to who may get funding varied disparately throughout the country.
In 2007, the Department of Health issued a National Framework for NHS Continuing Healthcare. Its aim was to promote a nationwide common tool (or framework), with greater clarity and consistency, and using clear eligibility criteria, designed to help all those administering NHS healthcare assessments, or involved in the decision-making process or the resolution of disputes.
The 2007 National Framework was updated again in 2009 and rebranded as “The national framework for NHS continuing healthcare and NHS-funded nursing care.” Further updates followed in November 2012 and more recently in October 2018. The theory being that more people should be able to access free NHS funding for their longer-term healthcare needs.
According to the Executive Summary, the 2018 National Framework is designed to:
• set out the principles and processes of NHS Continuing Healthcare and NHS-funded Nursing Care (‘CHC Funding’);
• give practical guidance to support staff delivering NHS Continuing Healthcare;
• provide processes for determining whether an individual has a ‘primary health need’ and is eligible for free NHS-funded care;
• re-establish the principal that the assessment process is intended to be ‘person–centric’ – with the individual being assessed at the heart of a fair, consistent and transparent process free from discrimination.
The latest version of the National Framework (2018) aims to provide even greater clarity for NHS assessors, professionals and individuals alike who are involved in the assessment process for CHC Funding, and provide fair and constant access to NHS funding throughout the country. But does it?
In practice, the correct application of the Framework is really only as good as the NHS representatives who have been trained in its use and application.
Here are 6 important areas where the 2018 National Framework has been updated:
1. Assessments for CHC out of hospital.
It is now preferable, wherever possible, for the initial Checklist screening assessment process to be deferred and to take place after discharge, away from the acute hospital setting.
The good: The aim is to get a more reliable and accurate picture of the patient’s longer-term needs, back in their own care setting, rather than in an acute hospital ward. Moving the assessment away from hospital has the added advantage of reducing ‘bed-blocking’.
The bad: Once out of the hospital setting, families will have to wait until their relative is settled into their care environment – whether in their own home, care or nursing home – before the initial Checklist screening assessment takes place. Unless you can secure an interim package of free care upon discharge pending the Checklist, this time delay could result in an individual funding their care unnecessarily for weeks on end.
For more information, read our blog:
2. Early Screening out of the process.
Additional advice is given in the National Framework as to the circumstances when an individual can be screened out of the assessment process early on. For example, if it is obvious that they have no healthcare needs and are clearly ineligible for CHC; or else, their needs are so obvious that they should move straight on to a full assessment; or have a rapidly deteriorating condition and may be entering a terminal phase, then the Fast Track Pathway Tool should be used instead to ensure CHC Funding is in place within 48 hours.
The good: If used correctly, it will save NHS resources and wasting time on cases where the individual clearly isn’t eligible for CHC Funding by screening them out early on; or alternatively, accelerate the process for those who are likely to be eligible, or else direct them down the Fast Track Pathway if at an end of life situation.
The bad: Unfortunately, it can mean that some individuals are subjected to a miscarriage of justice and are screened out prematurely or incorrectly, and so, may miss out on their entitlement to CHC Funding.
For more information, read our blog: Understanding the Checklist Assessment
3. Clarifying the purpose of a 3 month review and annual reviews thereafter, once CHC Funding has been awarded.
The National Framework provides that the package of care should be reviewed regularly by the local NHS Clinical Commissioning Group (CCG) to ensure that it is still adequate to meet your relative’s healthcare needs.
Paragraph 189 of the National Framework states that such reviews should be carried out within 3 months of the eligibility decision to grant NHS Continuing Healthcare Funding, and then at least every 12 months thereafter.
The good: An individual’s healthcare needs can vary over time and are more likely to increase as they become more frail. The intended purpose of these regular reviews is primarily to check the appropriateness of the current care package in place and to make sure that the care plans and arrangements are still adequate to meet the individual’s needs. The review assumes that CHC in place will continue, and so, is designed to reduce the number of unnecessary full reassessments.
The bad: Eligibility for CHC should only be reviewed afresh with a new full assessment carried out by a Multi-Disciplinary Team if the CCG can demonstrate that the needs have changed significantly. Unfortunately, in practice, these ‘reviews’ can be hijacked by CCGs and converted into a full reassessment, catching family representatives unaware.
Annual reviews create high anxiety for families, even if their relative has severe needs. The reason is that, contrary to the National Framework, these reviews present the CCG with an opportunity to reconsider needs afresh and withdraw existing funding (and thereby save funds), rather than merely looking whether the existing care package is sufficient to meet the individual’s assessed healthcare needs. Unsurprisingly, as many families will testify, CHC Funding can be removed upon such reassessments, leaving them with the tortuous task of complaining and mounting a formal appeal, whilst having to privately fund their relative’s care in the intervening period.
4. Introducing new principles for Local Resolution appeals.
If your relative has been rejected for CHC Funding at a full assessment carried out by a Multi-Disciplinary Team (MDT), the revised National Framework sets out a revised process for challenging decisions and launching an appeal.
The good: A new 2 tier approach at Local CCG level has been formalised to allow families to challenge the negative outcome of a MDT Assessment decision in circumstances where CHC Funding has been refused or withdrawn.
This new approach enhances the core principles of the National Framework of the ‘person-centric’ approach and gives families the opportunity to hear first-hand from a CCG representative why their relative did not meet the eligibility criteria for CHC Funding.
The first stage is optional and is an informal two-way discussion with the CCG’s representative. It is intended to address any concerns the family have, promote transparency and information sharing, both as to the scores allocated to the DST and MDT’s rationale when reaching their decision to refuse CHC Funding. If dissatisfied, you still have the option to move to stage 2 and proceed down the road of a formal appeal to a Local Resolution Meeting (LRM).
The bad: In reality, the new Framework merely enshrines the former informal practice of CCGs, inviting families to meet so that they could explain why CHC Funding was refused (or withdrawn). It was, and still is, just a ‘talking shop’, enabling CCGs to tick a box and say that have tried to engage with the family in compliance with the Framework’s person-centred approach. Some find the stage 1 informal review process cathartic. Particularly, if you realise that your relative just isn’t eligible for CHC. But, for those who believe that the MDT’S outcome is flawed or blatantly wrong, the review meeting only adds to their existing frustration and is a waste of time and energy. The reason being, is that the CCG’s representative doesn’t have the necessary clout or authority to unilaterally overturn the MDT’s decision there and then – however wrong you or they may feel it is. Although, on the positive they can make recommendations to review it, and if overturned, would save the CCG the time and cost of preparing for an appeal.
5. Providing clearer guidance on key areas such as the Fast Track Pathway Tool.
The Fast Track Pathway Tool is an accelerated and abbreviated screening process designed to identify those individuals who are sadly nearing end of life and have a rapidly deteriorating condition.
The good: Using the Fast Track Pathway Tool ensures that individuals who may be entering a terminal phase are assessed quickly, and if positive, provided with CHC funded care within 48 hours of their assessment. This gives their family security and the comfort of knowing that their relative’s care will be paid for by the NHS in the remaining weeks of their life.
The bad: Sadly, what is becoming more common practice is that the Fast Track Pathway Tool is being misused by the NHS as a quick fix to unblock hospital beds. Patients are being awarded Fast Track funding too readily, just to get them out of hospital more quickly and move them into a care setting. Many families do not realise (or are not told) that Fast Track will be reassessed again if their relative survives 3 months from when CHC Funding is awarded. The risk, of course, is that CHC Funding could be withdrawn upon review, leaving families with the daunting prospect of having to find private funds immediately to pay for their relative’s care.
Shortcut the assessment process – use the Fast Track Pathway to get immediate Continuing Healthcare Funding within 48 hours
6. Inclusion of the Care Act 2014 – ‘the primary health need test’.
The National Framework 2018 has been updated to include the implementation of the Care Act 2014 which came into force in 2014. The Care Act provides guidance to Local Authorities and councils in relation to social care and helps people to know what care and support is available for their own well-being and to make their lives better.
The distinction between social needs and healthcare needs is critical as it can have significant financial consequences as to who is responsible for providing and paying for your care:
Social care is provided by the Local Authority and is means-tested. Therefore, an individual may have to pay a financial contribution towards the cost of their care (in part or in full) if their wealth, savings and assets exceed the current threshold of £23,500.
NHS Continuing Healthcare (CHC) is paid for by the NHS and is ‘free at the point of delivery’ where there is a ‘primary health need’ ie the main reason for care is due to healthcare needs as opposed to social needs. CHC is payable regardless of wealth or where the care takes place.
The good: The Care Act does not change NHS Continuing Healthcare and places a clear duty on the health and social care authorities to carry out proper assessments for NHS Continuing Healthcare.
Section 9 of the Care Act makes it clear that when a Local Authority carries out a ‘needs assessment’ and it appears that the individual may be eligible for CHC, they should be referred to their local CCG for a CHC assessment.
Section 22 of the Care Act reinforces the landmark Court of Appeal decision in the Pamela Coughlan case (1999) and places it firmly within the National Framework. In Coughlan, the court found that her nursing care needs were greater than those which her Local Authority could be expected to provide and should therefore have been paid in full by the NHS (ie free of charge) because the overarching primary need for care was a health need, not a social need – the ‘primary health needs’ principle.
The Care Act places a limit on the care that a Local Authority can lawfully provide and reaffirms the boundaries of what funded care falls under their remit, and what care is the responsibility of the NHS.
Following Coughlan, a Local Authority can only provide nursing care if it is merely:
i) incidental or ancillary to the provision of the accommodation which a Local Authority is under a duty to provide; and
ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide.
The bad: The Care Act and the National Framework do not clarify the test for ‘incidental and ancillary’ above. In practice, this means that the boundary lines can become blurred as to whether the primary reason for care is for health needs or for social care needs. This lack of clarity frequently leads to arguments as to which organisation is responsible for funding care.
Some CCGs selectively ignore the primary health needs test set out in the Care Act (and Coughlan before it). So, beware of conversations asking about your relative’s healthcare needs and how they intend to pay for their care. This is wrong. Remember – CHC Funding is never about wealth, but only health! Don’t let CCGs try and push your relative down the Local Authority assessment route (and means-testing) in an effort to save money and avoid their responsibilities for providing healthcare.
On balance, most of the updated changes to the revised National Framework in 2018 are to the good and are undoubtedly intended to be helpful to NHS assessors and individuals involved in the assessment process.
Although much of the content and concepts remain broadly the same as the previous 2012 Framework, the structure and cosmetic layout appears more logical and user friendly. But, whether the Framework is adhered to and applied consistently, or at all, is an entirely different matter!
The unresolved problem is that the National Framework is still open to subjective interpretation, and that in turn leads to the CHC eligibility criteria being applied inconsistently throughout the country and some very odd decision-making – both for and against individuals seeking NHS funding.
Since its introduction in 2007, the Framework has not eradicated the postcode lottery, and so, remains open to abuse by some CCGs, who either ignore it or selectively apply its guidance to suit their own objectives and financial budgeting constraints.
If the National Framework and its guidance are so clear, and the system is working so effectively, then why is the assessment and appeal process so challenging for families? Why are there so many complaints to CCGs about abuse of process, delays, incompetence, flawed assessments, perverse outcomes, hostile and adversarial assessments, and a general lack of transparency – contrary to the Framework’s guidance?