Where are we since the Coughlan Judgment and the introduction of the National Framework?
No longer should you need to sell your house to pay for your care or give up work to be a carer for a relative, spouse or friend as a result of incompetent or flawed NHS Continuing Healthcare assessments. The principles behind this statement are sound, so why aren’t they being applied? Why are so many thousands of people still being compelled to sell their home to pay for their care? How has society come to this malaise and what can be done to rectify the problem?
Where the problem started: The background
In 2002, regional health authorities were renamed and merged to form 28 Strategic Health Authorities (SHAs). Each SHA had its own governance and responsibility for running and commissioning local NHS services. With its own autonomy, each SHA had its own interpretation of what healthcare needs qualified for Continuing Healthcare – i.e. the long-term funding of elderly and disabled patients by the NHS, to meet the overriding principle of healthcare being ‘free at the point of need’.
Unfortunately, this resulted in nationwide inconsistency as to who qualified for funding, dubbed the ‘postcode lottery’. Success or failure was entirely in the hands of your local SHA and how they chose to apply their own assessment methods and criteria. As a result, your chance of securing NHS-funded care was largely determined by where you lived.
What happened to change all this?
The landmark 1999 Court of Appeal decision in the Pamela Coughlan case was the precursor to the creation of a nationwide, consistent approach in determining eligibility for Continuing Healthcare.
In short, the Coughlan judgment established that where a person’s primary need is for healthcare, the NHS is responsible for the full cost of the placement and care package (i.e. health and social care needs, and accommodation).
The Local Authority may only commission nursing care (and pass the cost to the individual, subject to means-testing) if the individual’s need for healthcare is:
(i) merely incidental or ancillary to the provision of the accommodation which a Local Authority is under a duty to provide; and
(ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide.
So, the Coughlan case was fundamental in clarifying the legal distinction between health and social care needs, and determining responsibility for meeting – and funding – those needs.
What happened after Coughlan?
In response to the Court of Appeal’s findings, the Department of Health issued guidance asking health and local authorities to ensure their policies were in line with the Coughlan Judgment. However, confusion and inconsistency continued.
Something had to be done to rectify the situation and reimburse those individuals who had been the victim of flawed assessments. Many thousands had been charged for care that should have been funded by the NHS.
The emergence of national assessment criteria
In February 2005, Ann Abraham, Health Service Ombudsman, reported to the Select Committee on Health* that there were still significant flaws in the system, noting:
“In more than half of the cases my Office examined we found that the assessments had not been carried out properly. The problems included poor quality clinical input to both assessment and decision making, inadequate documentation, failure to consider changes in a patient’s health care needs over time, and lack of involvement of, and poor communication with, patients, carers and relatives.”
There was a need to create a comprehensive, user-friendly reference tool to ensure fair and consistent decision-making.
And so, in 1997, the National Framework for NHS Continuing Healthcare was born.
The National Framework for NHS Continuing Healthcare and Funded Nursing Care
The National Framework defines the process and criteria for assessing CHC eligibility with the aim of improving standards and eliminating the postcode lottery.
The National Framework has been revised several times since its inception – 2009, 2012, 2018 and 2022. Each version has sought to improve the assessment process and ensure compliance with the underlying Coughlan principles.
For example, the 2018 edition of the National Framework incorporated the Care Act 2014, clarifying the limits on the type of care Local Authorities can lawfully provide. It also reinforced the duty on the health and social care authorities to carry out proper assessments for NHS Continuing Healthcare first, before there is any mention of how the care will be funded.
While the implementation of the National Framework has certainly been beneficial, the problem of subjectivity remains. There is still much inconsistency in interpretation and approach, meaning the postcode lottery is as much alive today as it was in the 1990s. Individuals are still denied Continuing Healthcare funding due to flawed or unfair assessments and subjected to inordinate delays in processing retrospective reviews. Homes and assets are still being sold, and hard-earned life-savings are being eroded to pay for care that ought to be funded by the NHS.
To achieve greater consistency and reduce the stress caused by incorrect decisions, there needs to be better training of NHS assessors and less room for subjective interpretation of the rules and guidance. Admiral Philip Mathias has publicly called the misery foisted by the NHS on individuals who have been let down by the system and flawed assessments as, “probably the biggest financial scandal in the history of the NHS.” The winds of further reform are gathering…
Read our recent blog Admiral Philip Mathias blog:
Admiral Mathias Continues His Fight For Justice For Families Who Missed Out On NHS Continuing Healthcare Funding
We hope that the next revision of the National Framework addresses these concerns and more.
For further background reading as to historical issues and the evolution of the National Framework, read:
Memorandum by The Law Society (CC 35)
https://publications.parliament.uk/pa/cm200405/cmselect/cmhealth/399/5031738.htm
*Memorandum by the Health Service Ombudsman for England (CC 23)
https://publications.parliament.uk/pa/cm200405/cmselect/cmhealth/399/5031702.htm
Memorandum by the Department of Health (CC 9)
https://publications.parliament.uk/pa/cm200405/cmselect/cmhealth/399/5031708.htm
Farley Dwek Solicitors work with a team of specialist nurses who have all spent many years working within the NHS, specialising in Continuing Healthcare Assessments. Together, we can offer you expert advice and professional advocacy support. You don’t need to fight this battle for NHS funding alone. Visit our website for more information about the expert services we offer.