Rejected CHC Funding.

My Relative Has Been Rejected For Funding Because Their Needs Are “Stable And Predictable”

Following on from the previous blog, the NHS may seek to evade responsibility for paying care fees by suggesting that the patient’s needs are stable and predictable. This rebuff by the NHS in rejecting an application for NHS Continuing Healthcare Funding can often deter families from pursuing the claim further.  Don’t take such a statement at face value, as you still have to look at the totality of the needs by reference to the various Care Domains which should be considered in conjunction with the four key indicators (or characteristics), namely the nature of the needs, intensity, complexity and unpredictability of those needs.  These four characteristics may, alone or in culmination, demonstrate a primary health need – and it is the totality of the overall needs and the effects of the interaction of the needs that need to be considered.

The National Framework for NHS Continuing Healthcare and NHS – Funded Nursing Care describes “unpredictability” as, “the degree to which needs fluctuate and thereby create challenges in managing them.  It also relates to the level of risk to the person’s health if adequate and timely care is not provided.  Someone with an unpredictable healthcare need is likely to have either a fluctuating, unstable or rapidly deteriorating condition”.

Therefore, just because an individual’s needs may be said to be “stable and predictable” –  does not mean that there is no longer an underlying health need. After discounting routine care needs, you need to ask what would the position be if you were to withhold “adequate and timely care?”. Would your relative’s condition still be stable and predictable (more akin to a social need), if the care intervention was removed, or would it fluctuate and deteriorate, and thus inevitably “create challenges in managing them”? Each case will depend on its own facts and merits, but just because the NHS contend that your relative’s needs are stable and predictable doesn’t necessarily mean that they are not entitled to receive funded care.  It could just be that those needs are stable only because of adequate and timely care intervention. Remove the care package, and then consider… would those managed needs still be stable and predictable? In many cases the answer is likely to be “no”.

Am I Eligible For CHC Funding?

Misconceptions – My Relatives Needs Are “Well Managed” And Therefore I Am Told They Are Not Eligible For Nhs Continuing Healthcare Funding Is This Correct?

In previous blogs we have discussed what is a ‘Primary Health need’ and what may be classed as a ‘social care needs’. The former is free at the point of need and is provided by the NHS; whereas social care is means tested and is provided by the Local Authority Social Services.

We discussed that eligibility is scored by reference to the 12 Care Domains as to the level of need, and those needs are then referenced to the four key indicators or ‘characteristics’ (ie the nature of needs, intensity, complexity and their unpredictability).  Each of these characteristics may alone, or in combination, demonstrate a primary health need.

Too often we hear however the eligibility for NHS Continuing Heatlhcare Funding (CHCF) has been refused because the CCG will contend that the patient’s needs are “well-managed” and therefore because they are under control, do not meet the eligibility criteria for funding.

Not always true. Therein lies a huge misconception.

The NHS can use this simple ruse as a means of justifying their rejection for CHCF. This can be a very contentious area which is often misunderstood by all parties – both claimants and the NHS.

The NHS National Framework says that a “well-managed” need does not of itself, mean that the individual is eligible or not eligible for CHCF, but should be taken into account as part of the overall decision-making process.

To assist, The National Framework for NHS Continuing Healthcare and NHS funded Nursing Care indicates that the decision–making rationale should not marginalise a need just because it is successfully managed. “Well-managed” needs are still needs”.  So don’t be fobbed off by the NHS if they say your relative doesn’t qualify for CHCF as their needs are well-managed.  More investigation is required.  The reasons given for a decision on eligibility should not be based on the single fact that the need is “well-managed” as grounds to refuse Continuing Healthcare funding, but is a factor that should form part of the overall decision-making process.

It is the nature, intensity, complexity and unpredictability of the underlying healthcare need that is the crux of the matter, and which should be assessed.

Just because the individual is receiving care and their needs are being better managed does not mean that the underlying need has actually gone away.  Take for example a patient with cognitive impairment (eg dementia), who experiences hallucinations, who has falls regularly, needs constant watching and medicating for various other health problems, exhibits other inappropriate behaviours (aggression), who may be prone going out of their house and wandering in the street, thereby putting themselves (and possibly others) in danger, etc. Just because that patient has been moved into a care home setting to help manage these various conditions – ultimately, does not remove the underlying medical conditions, it is just better managed in a different environment.  The assessment of the individual’s needs must reflect the serious nature of the underlying need and risk, and the fact that it is now being better managed may be irrelevant.  It is the basic health need that is paramount. This is where the NHS often get it wrong.

So, if you are told that your relative’s needs are “well-managed” and that is the end of the matter as they don’t qualify for CHCF, there may be a lot more to it than that, and you should be prepared to raise a challenge, where appropriate.

Equally, families quote the “well-managed needs” principle to us, to argue that of course their relative must qualify for CHCF – take away the 24 hour care, remove medication and their special diet (or stop feeding them) and they wouldn’t survive! Yes, that is true, but equally it would be true for the majority of people in a care/nursing environment as well. The argument is obviously not quite as simple as that, otherwise 99% of people in care would receive CHCF. The patient should still be assessed as if their routine care is still in place. You have to judge the individual assuming that this baseline care is still in place and you cannot simply ignore it.

The National Framework states that, “only where the successful management of a healthcare need has permanently reduced or removed an ongoing need, such that the active management of this need is reduced or no longer required, will this have a bearing on NHS Continuing Eligibility”.

Furthermore, The NHS National Framework issues a word of cautions and states that, “Care should be taken when applying this (well-managed) principle. Sometimes needs may appear to be exacerbated because the individual is currently in an inappropriate environment rather than because they require a particular type or level of support – if they move to a different environment and their needs reduced this does not necessarily mean that the need is now “well-managed”, the need may actually be reduced or no longer exist”.  For example, in an acute hospital setting, an individual might feel disoriented or have difficulty sleeping and consequently exhibit more challenging behaviour posing a risk to themselves or others, but as soon as they are in a care home environment, or their own home, their behaviour may improve without requiring any particular support around these issues”.  So, this scenario, their needs may become well-managed by a change of environment and the underlying challenging behavioural problems reduced or removed entirely, and as such, should be recorded and taken into account in the eligibility decision”.

In summary when considering what is a well-managed need you have consider the needs in conjunction with the four key indicators of need when making a determination of eligibility on primary health needs, and a well-managed need is only one such factor that should affect eligibility for CHCF if that need is reduced or removed.

We have been receiving an increased number of enquiries recently regarding top-up fees and whether they are lawful in circumstances where the patient is already receiving NHS Continuing Healthcare Funding.

According to the National Framework for NHS Continuing Healthcare (paragraph 51):

“NHS care is free at the point of delivery. The funding provided by the CCGs in NHS Continuing Healthcare packages should be sufficient to meet the needs identified in the care plan. Therefore it is not permissible to for individuals to be asked to make any payments towards meeting their assessed needs”.

Thus, if your relative is found eligible for Continuing Healthcare funding they shouldn’t be charged any extra top-up fees by the care home – so how do some care homes get away with it?

Top-up fees are usually associated with the additional costs of accommodation. This is a complex area and the answer really depends upon the basis or purpose for which the top-up fees are being charged.  Essentially, you need to establish whether this additional cost (top-up fee) is for the patient’s assessed core healthcare needs or for their social needs or ‘wants’?

In short, referring again to the NHS Framework above, the answer is that top-up fees should not be charged where there is already a package in place for NHS Continuing Healthcare Funding. NHS Healthcare is supposed to be provided free at the point of need. Such top-up fees for the provision of nursing care are therefore unlawful as the cost of additional care should be met by the NHS. For example, if an individual has complex and intense needs that require a number of specialist carers throughout the day to be present (ie as opposed to generic needs) e.g. help with hoisting and mobilisation, medication and feeding ie more time consuming and intense than some other residents – then that is not an adequate and lawful justification to for a care home to impose extra top-up fee charges as the increased charges reflect the clinical needs.  Similarly, the Framework gives an example wherein if an individual with challenges behaviours needs a bigger room as their behaviour is connected to their clinical needs (eg feeling confined), and who may need specialist care intervention, then again it may be unlawful to charge extra fees for the larger accommodation. The extra cost of accommodation is due to their assessed clinical needs and not just because it would be nicer to have a bigger room.

However, those people who wish to supplement the NHS care package to meet their personal preferences can still of course do so, but at their own expense, and provided that they do not replace or conflict with elements of care funded by the NHS. For example, permitted arrangements may include hairdressing, beauty treatments and other spa-type services (manicures etc).

Let’s take a different scenario. Say, the care home provides standard accommodation, but the individual chooses to have a larger than standard room with a better view or private balcony, and enhanced facilities such as a kitchenette, en-suite bathroom etc. (i.e. related state of accommodation, rather than clinical health needs), then it may be lawful for the care home to charge a top-up fee for the additional ‘hotel-style’ facilities/services that extend beyond the person’s assessed care needs even if NHS Continuing Healthcare Funding is in place. The top-up here doesn’t relate to the assessed healthcare need provided – but for a social care element – perhaps a ‘lifestyle’ choice, often referred to as the ‘luxuries of living’ as opposed to a clinical need for them. In such circumstances the care home can charge for a ‘personal want’ as it is unconnected to their NHS care package.

Therefore, it is important to clarify with the provider what is the basis for the proposed top-up charges.


If an individual is already receiving NHS Continuing Healthcare Funding, the care home or nursing home should apply to the CCG to argue that the top-up fees required for this individual are more expensive than the average fees payable due to their various clinical needs, and it is the NHS therefore that should be paying these top up fees, rather than individual. Push for your rights.

If, however, the care is being already funded by the Local Authority, then the care home should ask the Local Authority to pay the for top up fees, not the family.

In the case of a private paying patient who does not have NHS Continuing Healthcare Funding in place, then I’m afraid if you want these hotel-style luxuries then you’ll have to pay for them.

Useful tools:

The Care Act 2014 provides

  • Top up fees should always involve the informed consent of all the parties
  • involve a written agreement and that the arrangement should be revised regularly. (i.e.annually).
  • Top up fees must always be optional, affordable and transparent.
  • They are not intended to cover any shortfall in Local Authority funding.
  • See also the NHS National Framework 2012 (Practice Guidance, paragraph 99)