NHS Continuing Healthcare assessments – and the legal limit for local authority responsibility
NHS Continuing Healthcare assessments (the full assessments) are usually led by someone from the NHS. This person is often a Continuing Healthcare nurse assessor.
At the same time, every full assessment for NHS Continuing Healthcare should involve a Multi-Disciplinary Team (MDT) – not just the nurse assessor. The MDT will complete a form called the Decision Support Tool. One of the essential people in the MDT is someone from the local authority, such as a social worker.
However, many families report that the social worker often says nothing in the assessment meeting and seems to plays no active role at all. Many families feel that the social worker is there just to agree with the NHS assessor.
If this happens in an assessment of your relative’s needs, the social worker could be breaking the law.
Local authority legal limit for care
In 1999, Pamela Coughlan won her case for NHS Continuing Healthcare funding at the Court of Appeal. She argued that her full time care was the responsibility of the NHS to fund, not the local authority. The Court agreed with her, and the Coughlan case became a landmark case in NHS Continuing Healthcare funding.
The Coughlan case also clarified the law regarding responsibility for long-term care funding, and reinforced a legal limit for local authority responsibility. If the local authority accepts responsibility for the care of a person with needs above this limit, it is acting unlawfully.
The judgment in the Coughlan case confirmed that the majority of nursing care needs, even many low-level day-to-day nursing care for needs that are considered ‘stable’, are often the responsibility of the NHS to fund – not the local authority.
There are several other cases, including those taken to the Ombudsman, in which the same conclusions have been reached: that local authority care, i.e. social care, is exactly that: care for social needs and for the general activities of daily living, such as washing, dressing, hygiene and toileting need etc.
As a result of the Coughlan case, and also the thousands of complaints the Ombudsman received about Continuing Healthcare funding decisions, a set of guidance came into effect in 2007; this guidance is called the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care. It has undergone several revisions since and sets out broad criteria for funding decisions.
One vital thing to remember is that the National Framework does not take the place of the law.
Despite this, many families report being told by assessors that the Coughlan case is ‘old’ and that it ‘no longer applies’ – statements that can easily put families off pursuing funding. The Coughlan case is just as relevant today as it was in 1999.
And the social worker in NHS Continuing Healthcare assessments should play a vital role in making sure the NHS does not wrongly try to offload responsibility for nursing care to the local authority.
The social worker is not just there to make up numbers or so that the NHS can ‘tick the box’ to say that the Multi-Disciplinary Team was properly constituted. If the social worker just nods and agrees with whatever the NHS assessor says, the social worker could be leading the local authority to break the law.
NHS Continuing Healthcare assessments: The vital question to ask the social worker
And so, in an NHS Continuing Healthcare assessment of your relative’s needs, one way to check that the social worker is playing an active role is to ask them how exactly they have evaluated your relative’s needs against this legal limit.
Learn how to prepare for and get through a Continuing Healthcare assessment – with step-by-step advice in our e-book, How To Get The NHS To Pay For Care.