We’re often asked this question, and it’s an area many people find confusing. We always advise people not to start paying care fees automatically, but to challenge what they’re told by the Continuing Healthcare assessors.
There are many good health and social care workers. At the same time, there are many who seem to have only scant understanding of the official guidelines (and the law) when it comes to NHS Continuing Healthcare.
As a result, many families are given incorrect information and are often railroaded into paying care fees before the proper funding decision-making process is complete.
So what can you do if this happens to you?
Let’s look at the ‘National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care’ – the official guidelines that dictate how Continuing Care assessments and reviews should be carried out.
All NHS Continuing Care teams are bound by the guidelines in the National Framework and are obliged to follow them. As has been shown in many instances, any action taken against the NHS on account of a failure by NHS assessors to abide by these guidelines, and in so doing illegally denying someone NHS care, is generally upheld. Keep in mind though that these are ‘just’ guidelines; they do not take the place of the law surrounding Continuing Healthcare funding.
Disputes about Continuing Care eligibility are always ultimately about money. The National Framework talks about disputes between responsible bodies (i.e. the NHS and the local authority), but it also clarifies the funding situation for individuals during disputes.
If you’ve been turned down for Continuing Healthcare funding, and you’re wondering if you have to start paying care fees while you appeal, read on…
At Care To Be Different we’ve successfully used the following arguments to prevent people being forced to start paying care fees on discharge from hospital and also when Continuing Healthcare is denied to someone in care.
Page 21 paragraph 57 of the Framework states that “…it is important that the process of considering and deciding eligibility does not result in a delay to treatment or to appropriate care being put in place.”
This applies whether or not you’re already in care or not. If the NHS can’t get its act together regarding funding decisions, it’s not the fault of the individual being asked to pay fees. Some families have even chosen to forward their care home bills to the NHS. This means the dispute then becomes one between the NHS and the care home or care provider, not the individual. This can be unfair on care homes though – see the note below about this.
Page 24, paragraph 65 of the Framework talks about hospitals and care homes: “The interim services [i.e. NHS care] … should continue in place until the determination of eligibility for NHS Continuing Healthcare has taken place. There must be no gap in the provision of appropriate support to meet the individual’s needs.”
Just because an assessment has been deferred or delayed by the NHS, this should not let the NHS off the hook in providing care in the interim.
Page 25, paragraph 74 mentions the Continuing Healthcare assessment process in hospital. If the hospital previously failed to carry out a proper assessment before your relative was discharged, and your relative has since been discharged to a care home, it is still the NHS’s responsibility to provide NHS care in the interim, until things are done properly: “In the interim, the relevant CCG retains responsibility for funding appropriate care.”
It’s worth reading further into the National Framework, too.
Even where the Framework talks about disputes between responsible bodies, the overriding guidance is that there should be no gap in care for the individual, and that the nature of the funding should not be changed (or illegally forced upon someone) just because a final funding decision has not yet been reached.
When it comes to care homes and care providers, there is always a more difficult line to tread for families, because you may be leaving your relative in the hands of someone you’re refusing to pay. Some care home managers understand, whereas others are less sympathetic. A care home is, of course, a business and needs its revenue to survive. Some families choose to continue paying care fees, just for peace of mind, while others hold out until a funding appeal has gone through. It often comes down to doing what you feel most comfortable with. However, this is a choice you should only have to make once the full multidisciplinary team assessment process is complete and the CCG has actually made a funding decision.
Our general advice would however be to:
- insist that assessments are done properly
- challenge every failure in procedure
- challenge every failure to properly apply the eligibility criteria
- make sure assessments are completed within the guideline timescales
- hassle people into responding to your complaints
You need knowledge – and a lot of determination at times.
And if your relative has already been receiving Continuing Care funding but, as seems increasingly the case, it’s taken away for no good reason, make sure you appeal. Keep in mind page 41, paragraph 143 of the National Framework: “If agreement between the LA and NHS cannot be reached on the proposed change, the local disputes procedure should be invoked, and current funding and care management responsibilities should remain in place until the dispute has been resolved.”