What is NHS Continuing Healthcare? An overview of the assessment and appeal process
Did you know that if your relative has healthcare needs, they may have all their care and accommodation paid for in full, free of charge, by the NHS, and such funding is not means-tested?
This funding is known as NHS Continuing Healthcare (or ‘CHC’ for short) –a pot of funding which is available for individuals with intense, complex and unpredictable healthcare needs.
Unfortunately, most people have never heard of this CHC funding, and even many medical professionals, GPs and top consultants, don’t really know or understand what it is, or how you go about claiming it. Of course, the NHS don’t advertise the availability of CHC funding as it comes out of their budget, which they naturally want to protect. Instead, many thousands of unwary families have been forced to sell their relative’s home or assets to pay for care needlessly, which could and should have been provided free of charge by the NHS.
Make no mistake though, getting an award of CHC funding is not a straightforward process and there are several steps along the route before funding is granted. Nor do the NHS make life easy for you to get CHC funding. The assessment process is complex, and it can be a daunting uphill struggle as you battle against the NHS to secure your right to CHC funding.
Here is an overview of some basics steps and terminology that you need to know when applying for CHC funding.
Am I eligible for CHC?
To determine whether your relative is eligible for NHS Continuing Healthcare funding, they must have a ‘primary healthcare need’.
NHS Continuing Healthcare is described as a “package of ongoing care that is arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need…Such care is provided to an individual aged 18 or over, to meet the health and associated social care needs that have arisen as a result of disability, accident or illness….. Eligibility for NHS Continuing Healthcare is not determined by the setting in which the package of support can be offered or by the type of service delivery.”
In simple terms, primary healthcare needs are those needs over and above which a local authority can lawfully be expected to provide.
Many people fail to grasp the vital significance between healthcare and social care needs. The difference is critical as it determines who pays for your relative’s care – the NHS, the local authority, or your relative from their private funds and savings.
Healthcare needs are provided by the NHS, free of charge and are not means-tested. Care can be provided in any setting, whether in your own home or a care facility (eg care or nursing home), and regardless of your wealth. When being assessed for CHC funding, your finances, wealth and means of funding care should never be discussed. Remember our motto, “It’s health, not wealth” that is the key consideration.
Social care needs are things like assistance with daily tasks to help with your well-being. Common examples include help with mobility, getting dressed, personal hygiene and toileting, cooking, and assistance when out and about to avoid wandering and falling. Social care needs are provided by the local authority (social services/local council) and are means-tested. If you have capital assets (eg a home, land, buildings and savings) worth more than £23,250, then you will have to pay for all of your care.
Who carries out the CHC assessment?
The NHS carries out assessments of eligibility for CHC funding through its local Clinical Commissioning Groups (CCG). There are approximately 200 CCGs in England, although this number can fluctuate due to some CCGs merging.
CCGs have responsibility for assessing, decision-making, implementing and providing NHS packages of free care.
Are there rules about conducting a CHC assessment?
When undertaking assessments of eligibility for CHC, CCGs follow the guidance set out in the National Framework for NHS Continuing Healthcare Funding and NHS–funded Nursing Care (the National Framework).
The National Framework was first introduced in 2007 as a nationwide tool to promote greater clarity, consistency and uniformity between local health authorities, who each had their own assessment criteria as to who was eligible for CHC funding, and who wasn’t. The results were inconsistent throughout the country, with some areas known to be far more likely to award CHC than others – a national postcode lottery. The National Framework has undergone several revisions since 2007, culminating in the latest edition which came into effect on 1st October 2018.
The National Framework is not law, but guidance, which the CCGs’ appointed assessors throughout the country are obliged to follow strictly. Unfortunately, whether due to a lack of training or understanding, and some may say budgeting constraints, adherence to the National Framework still remains inconsistent and can be applied selectively by some CCGs depending on whether it suits their cause.
These are the NHS’s own rules which currently span 167 pages, and which you need to know, if you are going to have a chance of securing CHC funding for your relative.
Any deviation or abuse of the assessment process set out in the National Framework, may give you valid grounds to appeal a decision where CHC funding has been rejected or withdrawn. So, we strongly encourage you to familiarise yourself with the National Framework to ensure (a) you know how the assessment process works and what are your rights; (b) can check that the CCG complies with its own guidance and carries out a fair and robust assessment; and (c) you can challenge any errors or outcome that you do not agree with and do not have the wool pulled over your eyes.
An outline of the assessment process
If your relative is already resident in a care home, or about to be discharged from hospital back to their own home or into a care home for the first time, they should consider having an assessment for CHC funding if they have a primary healthcare need – ie the main reason for care is due to health reasons, not social reasons (see above).
You can ask the hospital, your relative’s GP or other medical clinician, social worker or the care home manager to arrange a Checklist assessment.
This is a simple screening tool used to see whether your relative has sufficient healthcare needs to pass on to the next stage – a Full Assessment.
If, therefore, you are screened out at this stage, unless the Checklist assessment is defective, it indicates that your relative has low healthcare needs, and instead will need to consider alternative means of funding their care – eg a social care assessment to see if they can get any financial assistance from their local authority, or else, pay privately.
If your relative gets a negative outcome at this stage, they can always request that another Checklist is carried out in the future in the event their health deteriorates or their healthcare needs increase.
You will be provided with a copy of the completed Checklist which you should keep safe in case you need to refer to it at any future assessments.
In the current COVID-19 climate, Checklist assessments are currently on hold pending release of social isolation restrictions being lifted.
If your relative has a “rapidly deteriorating condition that may be entering a terminal phase” in their life and needs access to CHC with minimum delay, they can request a Fast Track Pathway assessment and bypass the usual Checklist assessment which is slower. If successful, Fast Track CHC funding can be implemented within 48 hours of the assessment. Fast Track funding is generally thought of as an end-of-life scenario, where often, patients are not expected to live for more than 3 months.
In some cases, CCGs are granting Fast Track funding just to get patients out of hospital more quickly, even if their healthcare needs don’t necessarily meet the CHC criteria for funding. Of course, some families may get a shock when their relative’s needs are reviewed at 3 months only to find their funding is withdrawn.
In all other non-urgent cases, the CCGs will use the Checklist assessment.
Multi-Disciplinary Team (MDT)
If your relative gets a positive Checklist outcome, they will move on to a Full Assessment, which is carried out by a Multi-Disciplinary Team (MDT), who use a different scoring tool called the Decision Support Tool (DST).
The MDT is convened by the CCG and should comprise of at least 2 members – a healthcare and a social care professional – who have both been involved in your relative’s care and trained in the National Framework. The National Framework deals extensively with the MDT process and what constitutes a good MDT. We encourage you to read the process.
You will be invited to attend the MDT and it is essential that you do so. If you are not invited, that is ground for appeal.
This is your first chance to secure CHC for your relative, so it is vital that you prepare for the meeting well in advance. You may know your relative’s day-to-day care needs better than anyone, and so you must attend the MDT to ensure that the CCG’s appointed assessors get the full and correct picture of your relative’s healthcare needs.
Don’t be afraid to challenge any misinformation or wrong conclusions that they may draw when seeing your relative or from reading the care home records (which can contain blatant or deliberate errors and missing or misleading information). That’s why it is important you are there to correct any misunderstandings and to oversee the process is carried out thoroughly, fairly and robustly. If there is anything you are not happy about, raise your objection with the CCG’s assessors and make sure they note it down.
As this is such an important meeting, we recommend that you have a professional advocate with you to argue your case and ensure that the assessment is properly conducted.
Farley Dwek offer representation at MDTs using one of our CHC specialist nurses who will fight your corner. Visit our Supported Assessment Service page for more details.
After the MDT, the CCG’s assessors will send the completed DST to the CCG with their recommendations for funding. The outcome decision should be notified to you within 28 days after the MDT. Don’t be afraid to chase the outcome.
If unsuccessful, the decision letter should provide detailed reasons why and tell you about your rights of appeal (see below). Do not ignore the appeal deadline! Your relative may be entitled to Funded Nursing Care instead – see below.
If successful, and found eligible for CHC funding, all your relative’s assessed healthcare needs, associated social care needs and accommodation should be paid in full by the NHS and you should not be asked to pay any unlawful top-up fees.
For more information on top-up fees, read our blog: Top-Up Fees – Are They Ever Lawful?
However, be aware that once awarded, CHC funding is not guaranteed indefinitely for life. An individual’s healthcare needs can fluctuate, meaning that over time, they may increase or decrease.
Once a CHC package of care is in place, the National Framework obliges CCGs to review it after 3 months, and then again every 12 months thereafter, to ensure that it is still adequate to meet the individual’s assessed healthcare needs. If their needs increase, then the package of care will need to be adjusted to meet the increasing cost of care. Conversely, if the healthcare needs decrease or no longer exist, then CHC will be withdrawn upon review.
The National Framework makes it clear that the intended purpose of a reviews is to consider “the appropriateness of the care package, rather than reassess eligibility.”
Farley Dwek Solicitors attend review meetings to support families who worry that the CCG’s representatives could inappropriately use the opportunity to carry out a fresh reassessment of eligibility instead, and recommend that funding be withdrawn – even in cases where it seems obvious that the healthcare needs remain the same, if not increased. See our Advisory service page.
In the current COVID-19 climate, these 3 and 12 monthly reviews are being postponed, so that CCGs can release more staff onto the front line to help accelerate patient discharge from hospitals and free up beds more speedily.
Funded Nursing Care
If your relative is unsuccessful at the Full Assessment (MDT), they should automatically be considered for Funded Nursing Care (FNC), which is a weekly sum (currently £165.56) paid by the NHS to the care home if your relative has nursing needs which are provided by a registered nurse. FNC is not means-tested and is tax free.
In the current COVID-19 climate, CCGs are not obliged to carry out FNC assessments.
If your relative is unsuccessful at the MDT and you disagree with the decision, or believe that the National Framework has not been followed, or allege there has been an abuse of process, then you have 6 months to lodge a written appeal to the CCG. But, do read the CCG’s outcome decision letter carefully in case gives any different timescales and do challenge any period less than 6 months.
Local Resolution Meeting (LRM)
Initially, the appeal will be referred to a Local Resolution Meeting which is conducted by the CCG themselves at local level.
This is a two–stage process:
Stage 1 is optional and involves an informal discussion/review where you can raise any concerns with the CCG and get to understand their reasoning for rejecting funding.
Stage 2 is more formal and involves formal written appeal submissions pointing out why you disagree with the MDT’s decision. This is effectively your second chance to secure CHC funding for your relative. The appeal will be dealt with in a face-to-face meeting. However, in the current COVID-19 climate, some CCGs are conducting these appeals by telephone or video-conferencing; others are cancelling or postponing them.
If you remain dissatisfied with the LRM’s outcome, your next appeal is to an Independent Review Panel.
Independent Review Panel (IRP)
You must lodge your appeal to the IRP within 6 months of receiving the MDT’s outcome decision.
An IRP is conducted by NHS England, and is considered your last opportunity to mount a challenge and get CHC funding in place (or reinstated if existing funding has been withdrawn).
The IRP usually consists of 3 members – a lay Chair, a CCG representative and a local authority representative (both of whom have not been involved in the matter), plus a notetaker, and occasionally, a clinical advisor.
Due to COVID-19, some IRPs are still proceeding by telephone, but many have been postponed until further notice.
As ‘the buck’ effectively stops here and there is much to be gained financially (and lost if you fail), we strongly recommend you consider instructing a professional advocate to review your case, collate any missing records and information, prepare your written appeal submissions and attend the IRP with you as your appointed representative.
Warning! So many families leave it too late to get professional help – and are therefore left to fight their appeal alone without advocacy support – usually ending with a poor outcome and having to pay many thousands of pounds per month for their relative’s care.
Good early preparation is essential to give yourself the best chance of success!
Farley Dwek Solicitors offer invaluable help with your appeal. For more information, visit our Help with Appeals page.
Parliamentary Health Service Ombudsman (PHSO)
If you remain dissatisfied with the CCG’s conduct, for example, their refusal to investigate or pursue an assessment (including a retrospective period of claim), or believe there has been an abuse of process, you can lodge a formal complaint with the CCG.
Once you have exhausted their internal complaint’s procedure, if still unhappy with the outcome, you will be invited to complain to the PHSO. The PHSO will investigate a claim for abuse of process, but will not overturn a decision where CHC funding has been rejected or withdrawn just because you disagree with it. For example, the PHSO will intervene where a CCG wrongly refuses to consider a valid appeal or a previously un-assessed period of care in a retrospective claim.
In the current COVID-19 climate, the PHSO have put all complaints (new and existing) on hold for the time being, in order not to burden the NHS resources with information and evidential documents that may be needed as part of an investigation.
Farley Dwek Solicitors can offer help and advocacy support at any stage of the CHC assessment or appeal process.
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