Should you pay for care if Continuing Healthcare funding has been refused?
This is a very common question from families, and one that families often need more information about.
Let’s go back to basics for just a moment:
The whole point of an NHS Continuing Healthcare assessment is to ascertain who is responsible for funding a person’s care, i.e. is it the NHS or is it the local authority.
- If it’s an NHS responsibility, i.e. a person’s care needs are primarily healthcare/nursing care needs, care fees for all assessed care needs will be paid by the NHS.
- If it’s a local authority responsibility, i.e. the care required is predominantly social care related to the activities of daily living (getting up in the morning, getting dressed and washed, preparing meals, and managing social aspects of daily life, including relationships, etc), the person needing care will be means tested.
For a person with health needs, the NHS Continuing Healthcare assessment is therefore the FIRST step in the care fees decision making process. It is not, as many families are told, simply something that can be done ‘later on’, once a person has already started paying care fees.
If a person’s health and care needs are such that they meet the eligibility criteria for NHS Continuing Healthcare funding, the NHS has a legal duty to fund care. No means testing should take place.
If a person who meets the Continuing Healthcare funding criteria is told to pay for care by the local authority, those care fees will be illegal and the local authority will have put itself in an illegal position. This is because the care needs will be beyond the the legal limit for local authority care – this is the limit above which it is, by default, the NHS’s legal duty to pay.
Paying for care during an NHS Continuing Healthcare appeal
It’s clear then why a Continuing Healthcare assessment has to be the first stage of this whole process. It determines which side of that legal ‘line’ a person falls.
These Continuing Healthcare assessments are carried out by the NHS, and they must, of course, be carried out properly for a reliable decision to be made.
However, we hear from hundreds of families who report that assessors don’t always follow the assessment guidelines (the National Framework for NHS Continuing Healthcare), and who ignore case law, fail to acknowledge the full extent of health and care needs, wrongly exclude family members from the process, overlook vital evidence, and so on.
When such blatant errors have occurred, it’s clear that no reliable decision about who pays can possibly have been made.
If it had been clearly – and properly – shown that a person’s needs were below that legal limit or line – the divide between NHS and local authority care – then it would be correct for the person to be means tested by the local authority.
If, however, the NHS and local authority decide the person must pay and yet there have been obvious flaws in the NHS Continuing Healthcare assessment and decision making process, the local authority risks acting illegally if it forces a person to pay for care that is the NHS’s legal responsibility.
You may be told that it doesn’t matter if you start paying care fees because you can claim it back after an appeal. This borders on contempt for the person needing care, because they cannot ‘unsell’ their house or get back other investments once those assets have been taken in care fees. It can also take a long time to reclaim care fees.
The local authority has a duty here to protect its own position. Until it has been clearly and properly shown that a person is not an NHS responsibility and that they do have to pay for their own care, the local authority should not take responsibility or carry out any means testing or take money from someone in care fees.
In other words, if it’s not clear the local authority has a right to means test at that point, it shouldn’t do so!
The only way to ascertain who is actually responsible for paying for care is for the NHS Continuing Healthcare assessment process to be carried out properly.
So if your relative has been denied NHS Continuing Healthcare funding, and it’s clear that correct process wasn’t followed, that assessors have not followed the guidelines or case law, that the eligibility criteria have not been properly applied, that family representatives have been excluded from the process, that there are no proper assessment notes and/or that proper consent was not obtained to start with, etc. etc., the local authority could be acting illegally in means testing, because it could be taking responsibility for care that is beyond it’s own legal remit.
No safe or reliable decision will have yet been reached about who is responsible for paying for care.
So if you’ve been turned down for NHS Continuing Healthcare funding (or had it removed) and you want to appeal, it can sometimes help to make the local authority aware that you know about this legal limit – and that they must stay within it if they are to remain on the right side of the law.
You may also find that the local authority can be an ally for you, in helping you secure care funding from NHS Continuing Healthcare budgets, rather than from local authority ones.
Further considerations about paying for care during an appeal
In practice, when families are threatened with having their relatives evicted from care homes if they don’t start paying (and we hear many reports of this nature from families), a family may feel they just have to start paying for care during an NHS Continuing Healthcare appeal.
Also, many families feel concerned that if the care provider doesn’t get paid, their relative’s care may be compromised. Those concerns are entirely understandable.
Some families forward the invoices from the care provider to the NHS for payment during an appeal, on the basis that the assessment process has been flawed.
In these kinds of situations, it’s important for the family to do what it feels most comfortable with, and if that means paying for care during an NHS Continuing Healthcare appeal, that’s a decision for the family to make.
What’s your experience with this?