Care Home Fees…
Should I have to Pay?

We may be able to secure funding for you or your loved ones so you don’t have to pay care fees.

read more eligibility enquiry form

NHS Continuing Healthcare (CHC) is not means tested.

Should I have to pay for care?

If your relation is in a care home because of physical or mental health needs, the cost of their care should be the responsibility of the NHS. Nearly half of Britain’s 440,000 care home residents are self-funding their care. There are many thousands of families in England and Wales who are unnecessarily paying privately instead of the government.

We can represent you if you have:

  • (i) A NEW OR CURRENT CLAIM
  • (i) If your case is new, with no previous involvement with claiming CHC from the NHS we will provide you with sufficient information and shoulder the challenges of making a claim on your behalf

  • (ii) AN EXISTING DISPUTED CASE
  • (ii) If you have had a negative response from your full assessment, and you have considered this carefully and still wish to proceed we will then start the difficult task of challenging the CCG’S (clinical commissioning group) decision, chasing deadlines and collecting more data based on further information from you and taking you through the CHC process

  • (iii) A RETROSPECTIVE CLAIM ARISING FROM A NEW CLAIM OR FROM A PREVIOUS CLAIM AFTER 1st APRIL 2012
  • (iii) We currently act for clients who have been in the system for claiming back health care costs for 2004 to 2012. We are also on standby for whatever system will be in place to allow clients who have been successful in obtaining CHC funding and have a retrospective claim which has not been addressed.

We will guide you through the NHS maze in claiming CHC funding for your loved one.

Click here to complete our free eligibility form to see whether you or your relative would qualify for free care and receive NHS continuing healthcare.

NHS Continuing Healthcare Funding Eligibility Form

Simply complete the form below to get started

We are regulated by the Solicitors Regulatory Authority (SRA) and comply with the solicitor’s code of conduct.

ABOUT US

Hodari HealthCare (HHC) is one of the leading national experts in the recovery of wrongly paid care home fees; we have a specialist dual legal and nursing team who have successfully recovered over £6 million for our clients last year alone.

It doesn’t matter how much money you have in the bank because CHC funding (as opposed to social care) is not means tested.

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WHY CHOOSE US?

  1. We are a firm of Solicitors established in 1984 and have helped clients to claim over £300million in compensation claims.
  2. We have a dedicated team of Healthcare Assessors who are experienced in this special field.
  3. We are regulated by the Solicitors Regulatory Authority (SRA) and comply with the solicitor’s code of conduct. We have a very experienced nursing team who work closely with our fully qualified lawyers who specialise in reclaiming nursing and care home fees.
Read more

About us

Hodari HealthCare (HHC) is one of the leading national experts in the recovery of wrongly paid care home fees; we have a specialist dual legal and nursing team who have successfully recovered over £6 million for our clients last year alone.

It doesn’t matter how much money you have in the bank because CHC funding (as opposed to social care) is not means tested.

WHY CHOOSE HODARI HEALTHCARE TO BE YOUR REPRESENTATIVE?

  1. We are a firm of Solicitors established in 1984 and have helped clients to claim over £300million in compensation claims.
  2. We have a dedicated team of Healthcare Assessors who are experienced in this special field.
  3. We are regulated by the Solicitors Regulatory Authority (SRA) and comply with the solicitor’s code of conduct. We have a very experienced nursing team who work closely with our fully qualified lawyers who specialise in reclaiming nursing and care home fees.
  4. The NHS already recognises that the process is complex and makes provision for a representative or advocate.
  5. Mistakes are often made in assessing the healthcare needs of thousands of cases and Hodari Healthcare has been successful in challenging them.
  6. We can help identify whether you or your relative can access NHS Continuing Healthcare funding. (Even if you're not eligible for NHS Continuing Healthcare, we may still be able to help you access funding from your local authority or the Department for Work and Pensions).
  7. We will hold your hand from start to finish through this complex process and we will shoulder the burden of the challenge.

So why not have Hodari Continuing Healthcare on your side with our joint legal and healthcare expertise to empower you.

Care home fees are expensive and you may not need to pay

You may also be able to claim a refund
eligibility enquiry form

What is NHS continuing healthcare?

NHS Continuing Healthcare is the name given to a package of care which is arranged and funded solely by the NHS for individuals outside of hospital who have on going health care needs. You can receive NHS continuing healthcare in any setting, including your own home or in a care home. NHS continuing healthcare is free, unlike support provided by local authorities for which a financial charge may be made depending on your income and savings. If you are found to be eligible for NHS continuing healthcare in your own home, this means that the NHS will pay for healthcare (e.g. services from a community nurse or specialist therapist) and associated social care needs (e.g. personal care and domestic tasks, help with bathing,


WHO IS ELIGIBLE

Anyone over 18 years of age assessed as having a certain level of care needs may be entitled to NHS Continuing Healthcare. It is not dependent on a particular disease, diagnosis or condition, nor on who provides the care or where that care is provided.

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THE PROCESS

We initially ask for the completion of our Survey form. On receipt of the completed survey form one of our CHC experts will get in touch with you as more detailed information may be required. We will carry out extensive data gathering in preparing our case.

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MY ASSESSMENT

For most people, the first step is to have an assessment with a health or social care professional using a screening tool called the Checklist Tool. If this screening suggests that you may be eligible for NHS continuing healthcare, a full up-to-date assessment of your needs will be arranged, using a tool called the Decision Support Tool.

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Who is eligible for NHS continuing healthcare?

Anyone over 18 years of age assessed as having a certain level of care needs may be entitled to NHS continuing healthcare. It is not dependent on a particular disease, diagnosis or condition, nor on who provides the care or where that care is provided. If your overall assessment of care needs shows that you have a ‘primary health need’, you should be eligible for NHS continuing healthcare.

Once eligible for NHS continuing healthcare, your care will be funded by the NHS, this is however, subject to regular reviews, and, should your care needs change, the funding arrangements may also change.

Whether someone has a ‘primary health need’ is assessed by looking at all of their care needs and relating them to four key indicators:

  • Nature – this describes the characteristics and type of the individual’s needs and the overall effect these needs have on the individual, including the type of interventions required to manage those needs
  • Complexity – this is about how the individual’s needs present and interact and the level of skill required to monitor the symptoms, treat the condition and/or manage the care.
  • Intensity – this is the extent and severity of the individual’s needs and the support needed to meet them, which includes the need for sustained/ongoing care.
  • Unpredictability – this is about how hard it is to predict changes in a individual’s needs that might create challenges in managing them, including the risks to the individual’s health if adequate and timely care is not provided

The National Framework makes it clear that:

  • The CCG must keep the person’s representative or carer fully informed at all stages of the assessment.
  • The result of any decision must be recorded in the patient’s notes.
  • The decision (including the reasons why the decision was reached) should be sent, in writing, to the individual or their carer or representative, as soon as is reasonably practicable.
  • The CCG must explain to the person or their family how to ask for a review if they are not happy with the result of the assessment.

For people whose condition is rapidly becoming worse and who are near the end of their life, doctors or nurses may use the Fast-track pathway tool to enable them to receive care urgently.

THE HODARI HEALTHCARE PROCESS

We initially ask for the completion of our Eligibility Survey form

On receipt of the completed Eligibility Survey form one of our CHC experts will get in touch with you as more detailed information may be required

We will carry out extensive data gathering in preparing our case which will involve many professional areas for presentation to the NHS

We will undertake a full review of your case

It’s important to remember that this is a painstaking process and may take several months or more to reach a result.

HOW WILL MY ELIGIBILITY FOR NHS CONTINUING HEALTHCARE BE ASSESSED?

Please see below extracts from the NHS Choices Website.

The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care

NHS Continuing Healthcare and NHS-funded Nursing Care Public Information Booklet

Decision Support Tool

NHS Checklist

For most people, the first step is to have an assessment with a health or social care professional using a screening tool called the Checklist Tool. If this screening suggests that you may be eligible for NHS continuing healthcare, a full up-to-date assessment of your needs will be arranged, using a tool called the Decision Support Tool.

You should be fully involved in the assessment and decision-making process. Your views about your needs for care and support should be taken into account. If you feel that you need help to explain your views, you may want to ask a friend or relative for support.

Initial screening with the Checklist Tool

The Checklist Tool is used to decide whether you should be referred for a full assessment. It helps health and social care professionals to work out whether your care needs may be of a level or type that indicate you may be eligible for NHS continuing healthcare.

The Checklist Tool is usually completed when a nurse, doctor, other qualified healthcare professional or social worker is assessing or reviewing your health or social care needs. For example:

  • A nurse or doctor could carry out the initial screening before you leave hospital
  • A social worker could do the screening when carrying out a community care assessment

After the initial screening, your local clinical commissioning group (CCG) will write to you to confirm whether or not you will be referred for a full assessment for NHS continuing healthcare.

Full assessment with the Decision Support Tool

If the Checklist Tool shows that you may be eligible for NHS continuing healthcare, the person who completed it will contact your CCG to arrange a full up-to-date assessment of all your care needs.

The full assessment will be carried out by a multidisciplinary team made up of a minimum of two different health or care professionals who are already involved in your care, to build an overall picture of your needs. In some cases, more detailed specialist assessments may be required from these professionals.

The information from your assessment will be used to complete the Decision Support Tool. This tool is used to assess whether your main or primary care needs relate to your health, by looking at the following types of care need:

  • behaviour
  • cognition (understanding)
  • communication
  • psychological / emotional needs
  • mobility (ability to move around)
  • nutrition (food and drink)
  • continence
  • skin (including wounds and ulcers)
  • breathing
  • symptom control through drug therapies and medication
  • altered states of consciousness
  • other significant needs

For individuals who need an urgent package of care because their condition is deteriorating rapidly, the Fast Track Tool may be used instead. This enables the CCG to arrange for care to be provided as quickly as possible.

Should you have to pay for care?

Please fill in our eligibility enquiry form

enquiry form

FREQUENTLY ASKED QUESTIONS

NHS continuing healthcare Funding is the name given to a package of care which is arranged and funded solely by the NHS for individuals outside of hospital who have ongoing health care needs.You can receive NHS continuing healthcare in any setting, including your own home or in a care home.

Essentially, if the majority of your care home fee are spent on managing your health needs or preventing further health needs from developing, then the NHS has a duty to pay for all your care needs and accommodation.

If the NHS fully funds continuing care in a care home, the patient does not have to make any contribution to the cost of that care.

Health Care Needs: Page 50, of the National Framework for NHS CHC and NHS funded Nursing Care paragraph 2.1: “…in general terms…such a need is one related to the treatment, control or prevention of a disease, illness, injury or disability, and the care or aftercare of a person with these needs (whether or not the tasks involved have to be carried out by a health professional).”

Social care needs: Page 50, of the National Framework for NHS CHC and NHS funded Nursing Care paragraphs 2.2 and 2.3: “In general terms…a social care need is one that is focused on providing assistance with activities of daily living, maintaining independence, social interaction, enabling the individual to play a fuller part in society, protecting them in vulnerable situations, helping them to manage complex relationships and (in some circumstances) accessing a care home or other supported accommodation. Social care needs are directly related to the type of welfare services that LAs have a duty or power to provide. These include, but are not limited to: social work services; advice; support; practical assistance in the home; assistance with equipment and home adaptations; visiting and sitting services; provision of meals; facilities for occupational, social, cultural and recreational activities outside the home; assistance to take advantage of educational facilities; and assistance in finding accommodation…”

Currently we can only help you to claim for CHC funding going forward from the present time. However when and if the NHS announces the next cut-off date or a new way to settle these claims we will then be able to look at retrospective claims back to 1st April 2012.

It is essential that you have a primary Health need to be awarded CHC. Therefore the process seeks to assess this fundamental need by scoring you against 12 areas of health, which are: Behaviour, Cognition, Psychological/Emotional, Communication, Mobility, Nutrition, Continence, Skin Integrity, Breathing, Drug therapies and medication, Altered state of consciousness, Other significant care needs.

This describes the Nature, complexity, intensity, and unpredictability of a person’s health needs.

If you don’t qualify for CHC there is a separate NHS funding called funded nursing care (FNC). This is where the individual that is registered to provide nursing care has nursing needs and receive care in a care home. The individual gets a sum towards the total but not the total fees as in the case of CHC.

You might also qualify for social care funding which is means tested but could be paid directly to help with the cost of care.

Consider if it’s appropriate to pursue your claim.

Monitor the Health of the individual for deterioration, which could trigger the need for reassessment.

If you want to continue, you will need to challenge the decision if you believe the criteria were not fully applied. This is a lengthy process but if you are successful you could claim £1000s or 10s of thousands in care home fees that should not have been paid out.

If you feel that you or your relative/friend needs an assessment for continuing healthcare you should ask your GP, social worker, district nurse, care home nurse or other health professional for a Checklist assessment. This is the first stage of the assessment process. However your Clinical Commissioning Group (CCG) may refuse to accept a Checklist from certain professionals if they have not been trained in how to complete it. Alternatively you can contact your Clinical Commissioning Group’s continuing healthcare department directly to request an assessment.

The Checklist threshold is set intentionally low in order to screen people in rather than out. It uses the same 12 care domains as the Decision Support Tool to organise an individual’s needs but instead of containing between 4 and 6 descriptions of need in each domain, it contains 3. These relate to the High, Moderate, and Low/No needs descriptors in the Decision Support Tool. These 3 descriptors are assigned a letter ‘A’, ‘B’ or ‘C’ with ‘C’ being the least intense description and ‘A’ being most intense. A full assessment will be required if you are assessed with any of the following:

  • Two or more domains with an ‘A’ descriptor selected
  • Five or more domains with a ‘B’ descriptor selected or one ‘A’ and four ‘Bs’
  • An ‘A’ descriptor selected in any of these domains: Behaviour, Breathing, Drug therapies and Medication, and Altered States of Consciousness

You do not necessarily have to meet this criteria in order to be offered a full assessment, some people may be offered an assessment with (for example) only four ‘Bs’ at the discretion of the CCG. Likewise it is not always necessary to complete a Checklist; the CCG may decide to carry out a full assessment without the need for a Checklist if they believe there is a reasonable chance that you may be eligible. Eligibility for a full assessment does not necessarily mean that you will be end up being eligible for continuing healthcare.

You should be supported to play a full role in the process, although we are aware that often hospital patients and their families are not told that a Checklist is to be completed or even informed of the outcome. Experience has taught us that this is usually because the health or social care professional completing the Checklist does not understand continuing healthcare procedures and is unaware of the need to involve the patient or their next of kin.

After a Checklist has been completed the outcome should be communicated to you (or your representative where appropriate) in writing with a rationale for how the decision was reached. If the decision is not to proceed with a full assessment the letter should contain details about how to ask the CCG to reconsider its decision.

Health and social care professionals – including care home nurses – do not have the right to refuse to carry out a Checklist or refuse to make a referral to the CCG for a Checklist to be completed, regardless of their opinions on your eligibility. If you are receiving care in a nursing home then you must be screened for continuing healthcare before a NHS-Funded Nursing Care assessment takes place. If you are receiving ongoing care in your own home, in a care home without nursing or in any other setting, you can still request a Checklist assessment from a health or social care professional and this request should be actioned.

Eligibility is based upon the presence of a primary health need which is established through an in-depth assessment process in which a multidisciplinary team fully assesses the totality of your needs. Until this detailed process has taken place nobody can unilaterally decide that you will or will not be eligible. Furthermore, unless the professional concerned has a wide range of experience within the field of continuing healthcare to draw from it is likely that their understanding of what constitutes eligibility will not be entirely accurate.

Checklists are often completed by hospital, care home or community health professionals rather than coordinating assessors. Depending on the quality and substance of the Checklist it is not uncommon for CCGs to ‘re-screen’ a Checklist assessment if they feel it is inaccurate. To avoid this it is best to try and ensure that the Checklist is completed as accurately as possible and backed up with supporting evidence from your recent care records, such as care plans.

If the CCG have altered the Checklist so that you no longer qualify for a full assessment they must provide you with a written explanation about how the decision was reached so that you are able to understand exactly where the difference of opinion lies. If you disagree with the CCG, you have the right to formally request a reconsideration of the decision and then to access the NHS complaints procedure. At Hodari Healthcare we have successfully challenged a number of inaccurate Checklist assessments. We are able to review your Checklist and advise you as to how it can be challenged.

Yes, the Fast Track Pathway Tool should be used by an appropriate clinician such as a GP, hospital consultant or district nurse who need to outline the reasons for the Fast Track decision.

Where a recommendation has been made appropriately, the CCG will work with the individual’s multidisciplinary team to arrange an urgent package of care or an appropriate placement into a care home to support the preferred choice for end of life care delivery when possible.

In July 2007 the Department of Health announced a cut-off date of November 2007 for individuals who wished to request a retrospective review of a period prior to April 2004. This was in response to the high number of cases still in the system since the retrospective review process was initiated in 2003. In March 2012 the Department of Health announced new timescales for challenges to assessment decisions and cut-off dates for individuals wanting to request an assessment for a previously unassessed period of care, in an attempt to end ongoing requests for retrospective reviews completely. This was the first time timescales had been imposed for challenges to assessments. The announcements meant that:

  • If you received long term care between April 2004 and April 2011 but had never been assessed for continuing healthcare you had until 30th September 2012 to request a retrospective review.
  • If you had been assessed for continuing healthcare between April 2004 and March 2011 but not awarded funding, you had until 30th September 2012 to appeal that decision.
  • If you had been assessed for continuing healthcare between April 2011 and March 2012 but not awarded funding, you had until 31st March 2013 to appeal that decision.

It is worth noting that as a result of the media awareness campaign that followed, Primary Care Trusts were inundated with an estimated 60,000 requests for retrospective reviews and a combined restitution bill of £600million. This has led to significant delays and backlogs within the system.

Unfortunately we have worked with many relatives of people who should have been assessed for continuing healthcare long ago but have ‘slipped through the net’. Typically, this happens when the individual in question is self-funding their own care package and chose their care home or agency without the involvement of social services and did not go into care directly from hospital. Nevertheless, if you are receiving care in a nursing home you will almost certainly be receiving NHS-Funded Nursing Care (FNC). Eligibility for FNC should normally be reviewed annually after a continuing healthcare Checklist has been completed, which means there should be no excuse for CCGs not to be aware of nursing home residents even if they are self-funding their care. Managers of care homes with nursing also have a responsibility to ensure their residents have been referred for Checklist assessments.

If you receive care in your own home it may fall to your GP, social worker or district nurse to ensure the appropriate assessments have been carried out. In theory this should mean that nobody falls ‘through the net’ however in reality, appropriate referrals are not always made by health and social care professionals which means many people may have been in receipt of nursing care for years but have never been assessed for continuing healthcare.

Eligibility for continuing healthcare is not dependent on a diagnosis so the short answer is no, suffering from dementia does not automatically indicate a primary health need. Eligibility will be determined by assessing your day-to-day care needs and how those needs should be met.

Depending on the progression of the illness a person with dementia, Parkinson’s disease or any other disability or illness will present with a number of health and social care needs, some of which may well be intense, complex and/or unpredictable. If any one particular health need or a combination of those needs is assessed as being of intensity, complexity or level of unpredictability that means their primary need is for health. They will then be eligible for continuing healthcare.

According to the 1946 NHS Act, nursing care in England must be provided free at the point of delivery. This means that if your needs have been assessed as primarily health needs by law, then the NHS must pay the full cost of your health and social care and accommodation. NHS continuing healthcare is not means tested and financial considerations must not be taken into account. Coordinating assessors should not ask you questions about your financial situation and if they do you do not have to answer them because they do not need that information in order to assess your needs. Likewise a person’s continuing healthcare status should be established before means tested social care is considered.

The National Framework is absolutely clear about this issue and makes provisions to ensure that decisions regarding eligibility are free from budgetary and commissioner influences. We would be able to challenge any interference with this process.

No. Continuing healthcare is based on an assessment of care needs and how those needs should be met rather than on a specific diagnosis, meaning it is common for these needs to change over time. For this reason if you have been assessed as eligible for continuing healthcare, you can expect your needs to be reviewed 3 months from the original decision and annually thereafter.

This does mean that it is possible for individuals to drop out of NHS funding at a later stage despite presenting with very similar needs. If you are in situation whereby eligibility for continuing healthcare is being withdrawn, it is important that you request a thorough explanation in writing from your Clinical Commissioning Group as to why they believe you are no longer eligible. If you disagree, you can challenge that decision.

Some benefits will change when you become eligible for continuing healthcare. If you receive Attendance Allowance (AA) or Disability Living Allowance (DLA) in a care home with nursing, these will normally stop 28 days after continuing healthcare begins, however DLA will not normally stop if you are not receiving care from a qualified nurse or you receive care in your own home. If AA or DLA benefits stop, other disability-related premiums may also be affected.

In any case, if you are in receipt of either AA or DLA when you become eligible for continuing healthcare it is advisable to contact the AA and DLA units.

Prior to March 2010 Primary Care Trusts had the flexibility to choose whether they wished to continue funding people who were previously eligible for continuing healthcare but had been assessed as ineligible at their annual review during the appeal process. Local processes were established between primary care trusts and Local Authorities to ensure that patients would not fall into a funding gap between health and social care just because they wanted to appeal an eligibility decision. If the person in question ultimately lost their appeal, it was unusual for the PCT to try to reclaim funding back from the individual.

This changed in March 2010 when the Department of Health issued new refunds guidance. According to this guidance, the existing status remains until the PCT (now CCG) decision regarding eligibility is made. So if you are assessed as no longer eligible for continuing healthcare then the CCG can stop the funding regardless of whether or not you decide to appeal, so long as the CCG has provided you with a reasonable notice period (usually 28 days). If you ultimately win your appeal then the CCG must refund the cost of your care backdated to the point at which funding ceased.

This does not alter the duty CCGs and Local Authorities have to ensure that alternative arrangements are in place for you if you still require elements of social care.

Care home fees are expensive and you may not need to pay

You may also be able to claim a refund
eligibility enquiry form

A SPECIAL CASE STUDY THAT CLARIFIED THE LAW ON CHC

"Taken from the Care to be different website"

Pamela Coughlan’s case clarified the law regarding NHS Continuing Healthcare

Challenging injustice can be hard. Challenging injustice when you’re severely disabled, like Pamela Coughlan, requires extraordinary courage and determination.

Pamela Coughlan’s legal victory in securing NHS Continuing Healthcare for herself has since helped thousands of families with elderly relatives to also find the courage to fight for what they’re entitled to – and force the NHS to provide free care.

Many families are still fighting that battle and still face many obstacles. However, thanks to Pamela Coughlan they can refer to the ‘Coughlan test’ in their legal argument for the entitlement to care fees.

For this and for everything she went through during her case and beyond, Pamela Coughlan deserves our gratitude.

National Framework for Continuing Healthcare

The guidelines in question are known as The National Framework for NHS Continuing Healthcare. Introduced in 2007 and revised in 2012, they were supposed to streamline the Continuing Healthcare eligibility criteria nationally.

However, there is a legal argument that suggests if Pamela Coughlan’s needs were measured against this National Framework, she would be found ineligible for NHS funding. This indicates that the National Framework itself could well be illegal.

Pamela Coughlan’s case

In the 1970s Pamela Coughlan was paralysed after a road accident and needed full-time care. She had severe physical disabilities including partial paralysis of her respiratory tract.

At the same time, however, she could still speak coherently and with mental clarity, use an electric wheelchair by herself, use a computer with voice technology, and eat and drink with some assistance.

Funding withdrawn

Her care was financed by the NHS until, in the 1990s, the East Devon Health Authority) transferred responsibility for her care to Social Services. By reclassifying her needs as ‘social’ care rather than ‘health’ care, this meant she would now be means-tested and have to pay for her own long-term care.

She pursued a case against the NHS to secure NHS Continuing Healthcare, fighting it in the High Court. It took two years and, in 1999 after an unsuccessful appeal by the then Labour government, she finally won a landmark case in the Court of Appeal (The judgment applies to England and Wales.)

Unlawful NHS decisions

The Court agreed that the actions of the local authority had been unfair and that the NHS had not followed its own guidance. It stated that the NHS had reneged on its promise to provide long-term care, used inconsistent eligibility criteria and had consequently made unlawful decisions.

Nursing care responsibility

The key question was whether nursing care for a chronically ill patient can lawfully be provided by the local authority as ‘social’ care (means-tested) or whether it must be provided free of charge in law by the NHS.

In court the judge ruled that both general and specialist nursing care were the sole responsibility of the NHS. However, the Court of Appeal subsequently found that the local authority can provide some nursing care, but only when…

“…the nursing services are merely (i) 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.”

In Pamela Coughlan’s case, however, the Court of Appeal ruled that her nursing care was the responsibility of the NHS, not the local authority.

The Court also raised the issue of people with needs that are chronic yet stable – as opposed to people with acute conditions. The NHS should address chronic yet stable needs as part of a Continuing Healthcare assessment process. The NHS should also not assume that just because a need is ‘stable’ it is automatically the responsibility of the local authority.

The ‘Coughlan test’

Pamela Coughlan’s needs were greater that those for which the local authority could be expected to provide care. As a result she was eligible for NHS Continuing Healthcare. The ruling also indicated that it would therefore be logical that anyone with needs the same as or greater than Pamela Coughlan should also be eligible for NHS Continuing Healthcare. This became known as the ‘Coughlan Test’.

The case clarified the law regarding fully-funded NHS Continuing Healthcare. The Court of Appeal stated that…

“…where the primary need is a health need, then the responsibility is that of the NHS, even when the individual has been placed in a home by a local authority.”

Continuing Care assessors will often say that the Coughlan case is ‘old’ and therefore doesn’t count anymore. They also often say that the rulings in this case are no longer relevant. Both statements are incorrect. Assessors must still decide whether or not a person’s care needs fall above or below the legal limit for local authority care. If they fall above that line, the NHS must fund care through NHS Continuing Healthcare – and no means testing should take place. Read more about the local authority’s role in NHS Continuing Healthcare.

Primary Health Need Approach

The judgment also concluded that the ‘vast majority’ of people in nursing homes should have their care fees NHS funded, and that only if someone’s health care needs are ‘incidental’ to their overall care needs should the responsibility be passed to Social Services.

This is now known as the ‘Primary Health Need Approach’ and it is applied in all assessments for NHS Continuing Healthcare. It came about in 2007 as a direct result of the Coughlan case. However, there is no definition in law of a Primary Health Need. It means that a culture has developed where NHS funding assessors seem to apply their own subjective interpretation of the guidelines onto funding decisions. The result is that many tens of thousands of people are still illegally charged for healthcare and nursing care in the UK.

Other benchmark cases

Leeds Ombudsman case, 1994:

The patient involved was a man with severe brain damage who was discharged into the community by Leeds General Infirmary with no follow-up care or funding in place. Although his needs had stabilised, he still required a significant amount of nursing care for the rest of his life and so his wife paid for his care in a private nursing home.

The Ombudsman upheld the complaint on the grounds that Leeds Health Authority had failed to appreciate that a need for substantial nursing was itself sufficient to entitle a patient to NHS continuing healthcare and that it was unreasonable for the authority to implement a policy that failed to make long-term NHS care available.

Pointon Ombudsman case, 2003:

Mr. Pointon suffered from Alzheimer’s disease and had a range of mental and physical health care needs. These included incontinence, cognitive impairment, verbal communication difficulties, inability to feed himself and a requirement for constant supervision and reassurance.

The Ombudsman found that Department of Health guidance had not been properly followed because the continuing healthcare assessment tools used in his case were too focused on physical needs to the detriment of his psychological needs. Furthermore, Mrs. Pointon was providing a high level of personalised care with great skill. The fundamental principle established in this case was that the nursing care provided by Mr. Pointon’s wife was equal to, if not superior to that which Mr. Pointon would have received in a hospital dementia ward.

This challenged the assumption that nursing care can only be provided by qualified nurses. The ruling led to the principle that NHS continuing healthcare could be provided in any setting, not just care homes with nursing. Furthermore it led to a cultural understanding that assessment toolkits should be needs focused rather than dependent upon whether or not the need is being met by a specialist.

Grogan, 2006:

In the case of Grogan vs Bexley Primary Care Trust the High Court ruled that eligibility criteria used by the PCT were unlawful because it contained no guidance regarding the primary health need approach which defined the limits of a local authority’s responsibility to provide healthcare. This meant that there was the possibility of confusion around what test should be applied by the decision-makers when deciding upon the eligibility of an individual. The judgment also found the Department of Health’s guidance on the primary health need approach to lack clarity.

The judgement also gave way to the term dubbed ‘Grogan gap’ in which it is possible for individuals to fall between health and social care provision. Strategic Health Authorities and Primary Care Trusts were instructed to review their criteria to ensure that this scenario would not happen and that treatment or care was not delayed by uncertainty over funding responsibilities.

A number of other important principles were established by Grogan, one being the requirement of PCTs to assess all the individual’s relevant needs rather than only their nursing needs. A further principle clarified the interaction between continuing healthcare and the registered nursing care contribution (RNCC). In all cases decision makers should establish whether an individual was eligible for continuing healthcare before considering which RNCC banding to apply to their care.

Pearce Ombudsman case, 2007:

Mike Pearce was forced to sell the family home to fund his mother’s care fees after she was deemed ineligible for continuing healthcare. His mother suffered with Alzheimer’s disease and required full assistance with all activities of daily living. After a 5 year battle with Torbay PCT resulting in one of the first continuing healthcare assessments using the new National Framework (at the time not finalised), the Ombudsman upheld his complaint and recommended Torbay PCT pay £50,000 in retrospective restitution.

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