There are certain points about the Care Act and NHS Continuing Healthcare that you need to be aware of.
Elements of the new Care Act come into effect in England on 1st April 2015. The remainder was due to come into effect in 2016*. (*See update at the end of this article.)
This article is not a detailed overview of the Care Act. Instead, it raises just a few of the points that families may need to be aware of in the first instance. We’ll look at other points in future articles.
The most important point to be aware of about the Care Act and NHS Continuing Healthcare is that:
- the new Care Act does not change the rules about NHS Continuing Healthcare – or who it applies to.
The guidelines, Continuing Healthcare case law and eligibility criteria for NHS Continuing Healthcare remain the same.
(NHS Continuing Healthcare is NHS funding that covers all care fees for people in full time care who have healthcare and nursing care needs and who meet certain criteria.)
However, there are some points about the Care Act that it’s worth keeping in mind:
Social care vs. healthcare and nursing care
The Care Act is essentially a social care Act – applying for most part to local authority care, i.e. means tested care.
Generally speaking, there are two types of care:
- social care: provided and funded by a local authority and means tested
- healthcare and nursing care: provided by the NHS and not means tested.
This distinction is vital.
The Care Act deals primarily with social care, i.e. local authority means tested care.
Do not believe anyone who tells you any of the following:
- That the new Care Act abolishes NHS Continuing Healthcare funding. It does not.
- That all care will now be means tested, including NHS Continuing Healthcare. It is not. NHS Continuing Healthcare is not means tested.
- That the new Care Act does away with the above distinction between social care and healthcare funding. It does not.
- That people receiving NHS Continuing Healthcare now have to pay for their social care. They don’t.
Self-funders and the Care Act
If you don’t qualify for NHS Continuing Healthcare funding (or if you have Continuing Healthcare funding removed at some point) it means that your care needs are deemed to be social care needs. This means the Care Act becomes relevant to you at that point – because the Care Act is largely about social care.
‘Self-funders’ – the term used to describe people who pay for their own care – have had a pretty raw deal in the past. They’ve generally been invisible to the wider health and social care system and have been left to fend for themselves, paying the highest fees for care and having little – if any – access to advice or contact from the local authority.
With the Care Act, self-funders will at least now be on the radar of the local authority. The local authority must now calculate the cost of a person’s care – and keep a record of these calculations (a care account) – regardless of how much money a person has. This is because from April 2016* a new care fees ‘cap’ was due to come into effect. (*See the latest update on this at the end of this article.)
The ‘cap’ on care fees
The much publicised cap on care fees applies only to social care (means tested care).
It was due to start coming into effect from April 2016*. (*See the latest update on this at the end of this article.) The idea behind the cap is to limit the amount that any one individual over the age of 25 has to pay in total for their care to £72,000. In practice, however, few people (probably only one in eight people) will actually benefit because:
- the cap only covers actual care costs, not living costs or accommodation costs in a care home
- the average stay in a care home is between two and three years, many people will never reach the cap, but will instead have to pay for everything
- the cost of actual care is calculated only at the rate the local authority is prepared to pay; very often this does not cover the actual cost of care.
For example, a self-funder could be paying £800/week in care fees, and yet if the local authority rate is only £500/week, it means only £500/week will be included in the care account – BUT living costs will also be deducted from this. These living costs are nominally calculated at £230 per week (approx. £12,000/year), and so in this example only £270 would actually count towards the cap (£500 less £230).
It’s easy to see that, by the time a person reaches the cap, they may have paid a great deal more than £72,000.
So, in essence, the lower the local authority rate, the less is included in any care account, and so the longer it will take a person’s total care costs to accumulate to reach the cap.
In the meantime they will have to pay the full cost of their care – and even when they reach the cap they will still have to continue to pay all living costs and all costs of accommodation in a care home. If a person can’t pay this, the local authority will help.
How will social care care needs be assessed under the new system?
There will be a new system of social care assessments, and this is a contentious point about the new Care Act. In many people’s views, the proposed system leaves scope for a high degree of both subjectivity and error on the part of the assessor.
But remember – and this is a vital point in relation to NHS Continuing Healthcare – if a person has care needs that are beyond the local authority’s legal remit for care provision, the NHS should still provide and pay for all care – with no means testing. NHS Continuing Healthcare funding is not affected.
If a person is receiving NHS Continuing Healthcare funding, the cap is not directly relevant to them while they are receiving that funding. There should also be no cap on NHS Continuing Healthcare funding, despite some Clinical Commissioning Groups incorrectly now trying to impose one.
A person who is awarded Continuing Healthcare funding may have previously been self-funding, and from April 2016* onwards (*see the note at the end of this article) any self-funded payments (for actual care) were due to be recorded and count towards the cap.
A person currently receiving Continuing Healthcare funding may, at some point, have that funding taken away and be deemed as needing only social care. If this happens, and if it’s justified in being removed, and the person becomes self-funding, their payments for care will of course count towards the cap.
Given the significant extra workload that will land at a local authority’s door with these new assessments, it’s important for self-funders to make contact with the local authority sooner rather than later, to be assessed from October 2015 onwards – in time for a ‘care account’ to be set up by April 2016*. (*See update at the end of this article.)
New social care assessments
Here’s the controversial bit:
The amount a person may need to pay for their social care will hinge on what scores or comments one sole assessor decides to put on an assessment form. The amount of care that will count towards the cap will be only those needs that the assessor actually records and decides are ‘eligible’ needs.
If care needs get overlooked or missed out, the person being assessed will end up with a lower ‘estimated budget’, there will be less recorded in their care account, they will pay more out of their own money and they will take longer to reach the cap.
Just like with NHS Continuing Healthcare, these new social care assessments are about care needs only; they should not be an assessment of a person’s money.
It is likely that local authorities will outsource the assessment of self-funders’ care needs to a third party. In this there is a risk that the companies doing such care assessments may not have the skills and knowledge to properly assess needs. (And remember this is an assessment of care needs, not money.)
Such assessments and/or reassessments could even be done over the phone, again allowing scope for grave error in determining a person’s actual level of need.
Also, in any new social care assessment, the assessor MUST take account of potential eligibility for Continuing Healthcare. However, many people fear that the people carrying out these tick-box social care assessments won’t have the knowledge or experience to understand what actually constitutes eligibility for NHS Continuing Healthcare.
It means a box could be ticked to say Continuing Healthcare has been considered and discounted, when in fact the assessor has not properly evaluated the criteria in the Continuing Healthcare Checklist at all.
There would seem huge scope for error here. And it would seem unlikely that any proper consideration of Continuing Healthcare eligibility could possibly be made if a self-funder is just asked a few questions over the phone by someone without professional knowledge of the person’s health and nursing care needs.
Before reaching the new social care cap
Before a person reaches the social care cap, and assuming they have money and/or assets above the means test threshold, they will pay for all of their care.
Again, this does not apply to NHS Continuing Healthcare – which is not means tested.
No care costs paid before April 2016* will count towards the cap. (*See the update at the end of this article.)
Top-up fees will not count towards the cap.
Any other services that are not in the original social care assessment of eligible needs will not count towards the cap.
Interest charged by local authorities on deferred payment arrangements (see below) will not count towards the cap.
Financial help provided by the local authority towards actual care costs will count towards the cap.
As with Continuing Healthcare, families will need to be vigilant to ensure that their relatives are being properly assessed and that all care needs are taken into account. The number of appeals is expected to be high.
New means test thresholds from April 2016
Once a person has reached the cap, i.e. they have paid £72,000 for their actual care (excluding living costs), the local authority will provide funding based on a means test. The individual will still be responsible for paying for accommodation, general living costs, etc. – and, if applicable, care fees top up payments will still need to be paid by someone other than the local authority.
Separately from the care fees cap, new thresholds for means tested care were due to come into effect in April 2016*. (*See update at the end of this article.) Essentially:
- if property is included in the value of a person’s money and assets, the new upper means test threshold will be £118,000 (currently £23,250), i.e. anyone will money above this level will pay for all of their care
- if property is disregarded (for example if a spouse still lives there), the upper threshold will be £27,000, and means tested support will be available from the local authority
- the new lower threshold (below which a person contributes only from their income, not their capital) will be £17,000 (currently £14,250).
…and this one: Further Dept. of Health factsheet
Your care costs will be recorded in your care account regardless of how much money you have and regardless of any means test threshold. This care account is the amount you’re paying for your actual care that counts towards the cap.
Universal deferred payment schemes
These deferred payment arrangements are designed to give people a choice about whether or not to sell their home to pay for care. A person can put off the sale and the local authority will cover care costs in the meantime and then recoup costs from the sale of the property later on.
These arrangements will continue but now a local authority will charge interest (at 2.65% p.a.) and the agreements will only apply to people who have already used up their other money and savings down to the upper means test limit (currently £23,250, from April 2016 £27,000).
The local authority will also be able to levy an admin charge for such arrangements. A local authority must offer a deferred payment arrangement if a person has no other funds with which to pay for care.
Deliberate deprivation of assets
The restrictions on deliberately giving away or hiding money to avoid care fees will still apply, and it’s vital to take good independent financial advice before doing anything. People will still be able to make certain gifts under inheritance tax rules.
Hospital discharge and NHS Continuing Healthcare
One of the most common problems people encounter when being discharged from hospital and needing ongoing care is that members of hospital discharge team often seem very keen to find out about a patient’s money – and yet the focus should be on the patient’s ongoing care needs – not their money.
No one should be asking about a patient’s money until it has been clearly shown who is responsible for paying for any ongoing care – based on care needs only.
The Care Act requires the NHS to notify a local authority if a person being discharged from hospital is likely to require ongoing care and support. This is called a ‘notice’ or ‘assessment notice’, i.e. a hospital is giving the local authority notice that there are ongoing care needs for which provision needs to be made.
Also, the Dept. of Health’s “Care and Support Statutory Guidance” issued under the Care Act makes it clear that a person should be assessed for NHS Continuing Healthcare funding prior to their discharge from hospital. Annex G of this guidance states:
“Before issuing an assessment notice, the NHS body must have also completed any assessment of the potential Continuing Health Care needs of the patient and if applicable made a decision on what services the NHS will be providing.”
Annex H5 of this same guidance covers more about NHS Continuing Healthcare funding.
The Care Act and NHS Continuing Healthcare
Given that many people in the care sector – both within local authorities and the NHS and also professional advisers – and focused heavily on the Care Act at the moment, NHS Continuing Healthcare could get forgotten when families are told about care funding.
Remember these three points:
- the Care Act does not change NHS Continuing Healthcare
- a person needing full time care who has health needs should still be assessed for Continuing Healthcare before they pay a penny in care fees
- on discharge from hospital a person should be assessed for Continuing Healthcare funding
All the current talk about the Care Act in the press and by people in health and social care could mislead people into thinking that all care is social care – and that all care is means tested. This is not the case.
NHS Continuing Healthcare is still provided by the NHS and it is not means tested – and it has nothing to do with a person’s savings or property. It is provided and funded by the NHS regardless of a person’s means. The Care Act does not change this.
Remember also that if a person is eligible for NHS Continuing Healthcare, the NHS funding that follows should not only cover their healthcare and nursing care needs, but also that person’s social care needs.
*UPDATE: Important note – the Conservative government announced in July 2015 that it is shelving both the new cap on care fees and the new means test threshold until 2020. This will come as a blow to those paying for their own care. Read more about the care fees cap postponement here – and what it means for self-funders.