After a full assessment for NHS Continuing Healthcare Funding (CHC), it is the Multi-Disciplinary Team’s role to make a recommendation to the NHS Integrated Care Board (ICB) as to whether or not an individual has a ‘Primary Healthcare Need’.
If the recommendation is positive and the individual is found eligible for CHC Funding, the NHS is obligated to pay for all their healthcare and social care needs in full – free of charge.
Where CHC Funding has been awarded, the ICB should take the lead role in implementing the approved care package. It is the ICB’s primary responsibility to plan, procure, commission and case manage a suitable package of care to meet that individual’s assessed healthcare needs and desired outcomes – which includes all their social care needs and accommodation. This is usually done via an appointed Case Manager. Then, once commissioned, the ICB also have ongoing responsibility for reviewing, monitoring and reassessing that care package to ensure that it still remains appropriate to meet and support the individual’s needs and agreed outcomes.
The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (updated July 2022) stipulates that the individual is to be the centre of focus at all times (‘person centric’). As such, the personalised package of care should be specifically tailored to meet their needs. It is up to the ICB how they source that package of care. Often, they will have to look outside the ICB.
Paragraph 193 of the latest revision of the National Framework, indicates that where CHC Funding is awarded, care planning should be considered as a whole, and not in isolation to other needs the individual may have; and furthermore, those needs should, wherever possible, form part of a single care plan. In theory, this should make it easier and simpler to manage.
Joint packages of care
Sometimes, care packages can involve combined elements of both healthcare and social care needs (referred to as a “joint package of care” with health needs being provided by the ICB, and social care needs being the responsibility of the Local Authority (subject to means-testing). In practice, where there is potential for overlap, the NHS National Framework suggests carrying out a 24/48 hour analysis to help identify those needs which are: (a) clearly healthcare related, and are therefore the sole responsibility of the ICB (as they are beyond the local authority’s legal powers); (b) those needs which fall across both health and social care and; (c) those needs which are clearly social care and the responsibility of the local authority.
Although the core tenet of CHC Funding is that ‘NHS care is free at the point of delivery’, i.e. the package of care should be sufficient to meet the individual’s needs, that does not necessarily mean the NHS have an open cheque book! Of course, inevitably, cost can be a determining factor, especially where the individual requests more expensive support services and/or a more expensive placement than the NHS are willing and/or able to provide.
Where NHS CHC Funding involves commissioning care resources from another body, such as the local authority, these organisations should work in collaboration and partnership together.
However, this can potentially lead to conflict between the two bodies as to which side of the dividing line the care falls and who pays! For example, the NHS could arguably, perhaps, seek to downplay some care needs in order to pass the cost directly over to the local authority. Conversely, the local authority could seek to pass the cost of care back to the NHS if the proposed services are beyond their legal authority e.g. where services by a registered nurse are involved (see the Coughlan case and Section 18-20 Care Act 2014).
In the meantime, the individual should not be held ‘hostage’ or used as a ‘ping pong ball’ – batted back and forth between the NHS and the local authority whilst any inter-agency battle lines are being fought behind the scenes. Where CHC is awarded, it remains the responsibility of the ICB to maintain the assessed package of care, regardless of any ongoing dispute, so that there is no gap in the provision of care.
The ICB and local authority should have in place an agreed formal process to resolve any disputes over jointly-funded services. Remember, the individual is at the heart of the CHC Funding process and their needs are paramount and take priority.
That said, the ICB shouldn’t have to pay for any additional ‘life-style’ choices or private services the individual specifically wants e.g. beauty treatments, hairdressing or a better room than standard in a care home – unless, of course, the additional cost of such niceties are reasonably justified as part of the assessed healthcare package.
Funded Nursing Care
Where an individual does not qualify for CHC Funding but nevertheless has some healthcare or nursing care needs, the National Framework provides that, “the NHS may still have responsibility to contribute to that individual’s health needs – either by directly commissioning services or by part-funding the package of support. Where a package of support is commissioned or funded by both a local authority and an ICB, this is known as a ‘joint package of care’.’’ One such example of this is Funded Nursing Care which provides a set weekly sum payable to the Nursing Home to cover the cost of limited nursing input, usually care planning, oversight and monitoring of an individual’s needs. The balance of the weekly fee is payable by either the individual or the Local Authority (subject to means-testing).
In addition to Funded Nursing Care, an individual may be assessed as needing a split between health and social care, eg. 60% social care/40% health care.
If, all or any part of the assessed care package is passed over to the local authority, it will mean that the individual has to undergo a means-tested assessment which could see them end up paying for part or all of their care package if their income and savings exceed £23,250 (current threshold as at the time of print).
Important: If a joint package of care is awarded, and the ICB are contributing at least 50% of the jointly funded package, then you can argue that the health needs must outweigh the social needs, and therefore, it follows that the individual should be reassessed as having a Primary Health Need. If correct, funding will pass into the ICB’s sole remit for free funded care, not the local authority (where means-testing applies).
Top-up fees may be unlawful and are generally not permitted if an individual is assessed as eligible for full CHC funding.
This can cause difficulties when the NHS contract rate paid to the nursing home for a CHC patient is less (sometimes significantly less) than that paid by a privately self-funding resident. This funding gap can often leave the Nursing Home substantially out-of-pocket if they are receiving less for the CHC funded resident than they were receiving previously for the same resident on a self-funding basis; and yet providing the same, or indeed, a higher level of nursing care.
To plug this funding deficit, the Nursing Home may try to charge the resident or their family, a top-up fee, in an attempt to recoup any shortfall. However, the Nursing Home cannot lawfully do so unless there are exceptional circumstances.
However, top-up fees are lawful if a resident is funded by the Local Authority, who will only fund up to a certain level. If the resident wishes to reside in a more expensive Care Home, and the Local Authority consider that needs can be adequately met in the cheaper home, then a top-up fee is permissible. However, it is important to remember that such top-up fees cannot be paid by the resident themselves – responsibility for payment of these top-up fees would lie with a family member or other third party.