Continuing Healthcare and the local authority legal limit for social care
One of our readers asked:
“Should a local authority representative be present at the full multidisciplinary team assessment meeting for NHS Continuing Healthcare? I have an assessment coming up, and there has been no mention of a social worker attending.”
This is a question many people ask.
In this particular case, the family was also told that if their relative was self-funding then there was no need for the local authority representative to be there.
This is completely wrong.
Three vital points
- Firstly, no one can say whether a person will be self-funding until the Continuing Healthcare funding assessment process is complete. That’s the whole point of the assessment process. Any health or social care professional involved who does not understand this has a serious gap in their knowledge and should not be influencing the funding decision.
- Secondly, whether or not a person pays for care has nothing to do with how much money they have or whether they own a house. Instead, it is about the extent of their care needs ONLY.
- Thirdly, the fundamental principle behind the NHS Continuing Healthcare assessment process is to ascertain whether a person’s are needs are above or below the legal limit for local authority care. Here’s a general rule: local authorities provide social care (which is means tested) and the NHS provides healthcare and nursing care (which are not means tested). The divide between social care and healthcare/nursing care is a legal divide, as seen in the Coughlan case. If the NHS pushes responsibility for care onto a local authority, and claims that the care needs are just social care needs, it risks putting the local authority it an illegal position; at the same time, the NHS fails in its duty to provide nursing care free at the point of need.
Further explanation about whether social workers should be involved
Once a person has got through the initial Continuing Healthcare Checklist assessment (stage one) with the required ‘scores’, they are put through for stage two, the multidisciplinary team (MDT) assessment; a social worker or local authority representative must be involved at this stage. Why? So that a judgment can be made by the local authority about whether the person’s care needs are beyond those for which the local authority can legally take responsibility for.
It is only if a person’s needs are definitely within the scope of local authority social care that they should ever be means tested and become self-funding.
A good MDT decision must explore the views and input of everyone involved, including the local authority. If this does not happen, it is impossible to reach a reasoned and accurate conclusion. See National Framework page 71-72, paragraph 28.1.
For that reason, a local authority representative must be involved, in order help determine which side of the legal NHS/local authority ‘line’ the person falls. It has nothing to do with whether the person currently has money/assets or whether the person is currently paying for care. This is irrelevant. The new Care Act reinforces this point very clearly.
If the NHS refuses to invite the local authority to attend the MDT meeting, contact the local authority yourself (write to the Head of Adult Care and your social worker contact if you have one) – and make the point very firmly that the local authority risks acting illegally if they allow the NHS to pass responsibility to the local authority without thorough assessment of the extent of care needs.
Have you come up against this problem in the Continuing Healthcare assessment process for your relative?