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Continuing healthcare New Forest update from Lester Aldridge

Health: fundamental to wellbeing

Continuing healthcare post Brexit update for the New Forest, from Lester Aldridge Solicitors

At the top of the list of requirements for wellbeing in these challenging times is for our health to be as good as it can be. If you are concerned for yourself or somebody else, it's important to know that assessment of an individual presenting with a ‘primary health need’ is non-means tested which means that any care, support and accommodation required, must be provided without a charge to the individual. This month's Life Matters by Lester Aldridge features an update a year on from the previous report and now post Brexit too, on the important subject of NHS Continuing Healthcare, NHS Funded Nursing Care & challenging NHS funding decisions. 

woman in bed being examined by doctor

What is NHS Continuing Healthcare?

NHS Continuing Healthcare, sometimes referred to as ‘fully funded NHS care’, means an individual is assessed as presenting with a ‘primary health need’. In consequence, their needs go above and beyond what a Local Authority is lawfully able to provide.

If an adult (aged 18+) has a ‘primary health need’, it is the statutory responsibility of the NHS to ensure assessed care needs are met. NHS Continuing Healthcare is non-means tested which means that any care, support and accommodation required, must be provided without a charge to the individual.

Contact the Community Care team at Lester Aldridge today on 02380 827483, or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.

More information about the eligibility criteria and assessment process for Continuing Healthcare is available by clicking here.

NHS What is the difference between NHS Continuing Healthcare & NHS Funded Nursing Care?

The NHS Funded Nursing Contribution (‘FNC’) is a set, weekly rate of £183.92, paid directly to a provider to assist with the cost of nursing care, where an individual is not eligible for NHS Continuing Healthcare but requires care from a Registered Nurse in a Nursing Home. FNC is not available to those who require residential (non-nursing) care only and the weekly rate is subject to change.

Is NHS Continuing Healthcare for life?

No. Securing a package of non-means tested, NHS Continuing Healthcare, does not, however mean that the NHS will fully fund the cost of meeting all of an individual’s needs for care, support and accommodation indefinitely.  NHS Continuing Healthcare funding is subject to an initial review and an annual review.

Initial & Annual Reviews

Where a patient has been found eligible for NHS Continuing Healthcare, the National Framework (the rules and principles which govern NHS Continuing Healthcare) provides that an initial review should be completed within 3 months of the eligibility decision. After this, reviews should be undertaken on at least an annual basis, or, as and when a person’s needs have changed.

The National Framework’s guidance is clear that these reviews should primarily focus on whether the care plan or arrangements remain appropriate to meet the individual’s needs. Furthermore, it is expected that in the majority of cases there will be no need to reassess eligibility as a result of an annual review.

Despite this very clear guidance, we often find that reviews are wrongly used as an opportunity to withdraw funding. In some cases, funding is withdrawn based on the annual review alone, and a full eligibility assessment is not completed contrary to the procedural requirements of the National Framework. In other cases, slight changes in need or alterations to a patient’s presentation may be used as a reason to commission a full re-assessment of eligibility, during which it can be hard to successful argue eligibility remains if the assessment focuses a very short snapshot of time (sometimes referred to as the evidence period or period of review).

Often this occurs in the case of a patient with Alzheimer’s Dementia who may have been  resident for a number of years in the same nursing home and the reason why there is less evidence of intensity, complexity and unpredictability at face value is because their needs are well-managed by very familiar care staff. There may also have been slight changes in need with the progression of the disease. It is, however, possible to argue that eligibility remains but to do so requires a very thorough, detailed review of all the evidence and careful consideration of the day to day interactions between needs to identify why they remain intense, complex and/or unpredictable to manage. If there have been any changes in need, it is essential to identify why and whether in turn those changes create intensity, complexity and/or unpredictability.

Refusals to award NHS Continuing Healthcare funding, or decisions to withdraw funding following a re-assessment of need, can be challenged. There is a two-staged appeals process.

Local Resolution

The first stage of the appeals process is known as Local Resolution. Every Clinical Commissioning Group (‘CCG’) should have a Local Resolution process, which entitles you to request the CCG reconsider its decision. Someone from the CCG, independent of the original decision-making process, should conduct the review process. Often the patient, family and/or representatives will be invited to attend a Local Resolution Meeting (‘LRM’) to discuss the reasons why the appellant(s) disagree with the CCG’s decision.

If the CCG does not overturn its decision (for example, a refusal to award NHS Continuing Healthcare or decision to withdraw funding) it is not the end of the road. You are at liberty to challenge the outcome of the LRM by requesting that NHS England consider convening an Independent Review Panel (‘IRP’).

NHS England

The second stage of the appeals process is to escalate the matter to NHS England. If NHS England agrees that a review of the CCG’s eligibility decision is necessary, a group of individuals from CCGs and Local Authorities (unconnected to the original CCG) will form a Panel. The IRP will be made up of a Chair, a clinical advisor, and health and social care professionals. The benefit of an appeal to NHS England is that you are taking the review out of the hands of the original decision-making body and placing the case in front of an independent body of professionals. The IRP has the power to overturn the CCG’s eligibility decision.

Right of Redress

If successful at any stage in the appeals process, the right of redress means the patient is entitled to recover any care costs incurred during the period in which it is deemed that the CCG should have been legally responsible for meeting the patient’s assessed needs, along with interest added.

Depending on the period of review, the CCG may also be legally responsible for meeting ongoing care costs if an eligibility decision is overturned.

COVID-19, Eligibility Assessments & Appeals

The previous suspension on NHS Continuing Healthcare related processes, because of the Coronavirus Act 2020 and associated Regulations, has ceased.

With effect from 1 September 2020, all CCGs should be completing eligibility assessments and processing appeals, albeit that the process is likely to be conducted remotely using video technology.

It is essential, particularly when you are not able to meet with assessors in person, to work with carers or care providers in advance of any assessment or appeal to collate as much evidence as possible.

NHS Continuing Healthcare is an evidence-based process and so you will need to present an evidence-based argument as to why a person is eligible, or why eligibility remains present. Review care records, diaries, interventions charts, and notes to identify entries which demonstrate that the ‘primary health need’ criteria is met to help with preparing to argue the case.

James Pantling-SkeetIndividuals, families and representatives not only need to critically analyse the evidence in advance of any assessment or appeal, but also any gaps in the evidence need to be identified and addressed. If there have been any changes in need, it is necessary to identify why, the impact those changes may have had on the totality of the patient’s needs (i.e. the overall picture) and importantly, whether it is remains to possible to argue that needs are intense, complex and/or unpredictable to manage.  

Thorough preparation and detailed knowledge of the ‘primary health need’ criteria, National Framework rules and a practical understanding of how to apply evidence to support arguing the case for eligibility is critical to success.

Free initial consultation and weekly legal advice clinic

If you have any questions, or, would like to discuss funding care, please do not hesitate to contact the Community Care team today on 02380 827483, or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

We offer a free initial consultation by telephone or Zoom and run a weekly legal advice clinic between 4-5pm every Tuesday where no prior appointment is required.

James Pantling-Skeet
Chartered Legal Executive at Lester Aldridge
www.lesteraldridge.com

Life Matters: Lester Aldridge Solicitors on a wide range of legal matters

Life Matters is a regular monthly feature on Lymington.com, which covers a wide range of legal subjects and is always written by one of the Lester Aldridge team. You can see a list of all published articles by clicking to the Lester Aldridge Solicitors webpage on Lymington.com here.Life Matters from Lester Aldridge Solicitors - logo

Free consultation on any legal matter

Lester Aldridge Solicitors are based in London, Southampton and Bournemouth - where the office covering the New Forest is situated conveniently close to the main Bournemouth train station. Their specialist teams in the various fields of law will be happy to advise and assist you, starting with a completely free initial consultation during which you can decide whether you feel able to trust them with your confidential information.  For more information please click here. Consultations are also available via virtual meetings : advice is available through phone, email, Skype and Zoom.

Other Life Matters Articles by Lester Aldridge

January 2021 Ins and Outs of Spousal Maintenance  
November 2020 Buying a property with someone else
October 2020 Upate on funding care
September 2020 Pitfalls of hastily made wills
August 2020 Inheritance tax planning
July 2020 Cohabiting considerations
June 2020 Accessing health and social care 
May 2020 COVID-19 and contracts, meetings and signatures 
Apr 2020 Are your legal affairs up to date? 
Mar 2020 Child contact during lockdown
Feb 2020 Don't leave it too late - power of attorney
Jan 2020 Funding care: frequently asked questions
Dec 2019 Are you ready? Make time to get your affairs in order
Nov 2019  What happens to your digital assets after death
Oct 2019  DIY divorce
Sept 2019  NHS continuing healthcare
Aug 2019  Mediation
Jul 2019  Expert advice on divorce
May 2019 Financial abuse of older and vulnerable people: the signs and what to do  
April 2019  Divorce law reform: no-fault divorce explained
March 2019 Separation and the legal rights of grandparents to see their grandchildren
February 2019  Crisis in health and social care - but help at hand
January 2019 The importance of precise instructions to avoid disputed wills 
December 2018  Abusive Relationships - help is at hand
November 2018  Benefits of giving cash as Christmas presents
October 2018  Getting our affairs in order (don't put it off!)
September 2018 Inheritance tax planning
August 2018  Lasting powers of attorney demystified
July 2018  Making time to make a will

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