If an individual is receiving care primarily due to physical or mental health needs, the full cost of their care should be the responsibility of the NHS under the NHS Continuing Healthcare scheme.
On the face of it, the system may appear deceptively simple – an individual’s needs are measured and, if their needs are primarily for healthcare, the NHS is required to meet the full cost of their care. Unfortunately, the system is seldom this straightforward, and families are unaware the NHS make wrong decisions and are often perplexed by the long and intricate assessment process.
As specialists in the field, we regularly provide assurance to concerned individuals who are struggling with the minefield of paying for care and the NHS Continuing Healthcare system.
In this blog, we will attempt to add clarity to the process by tackling some of the most prominent myths surrounding NHS Continuing Healthcare.
- “My relative owns a house and can afford their care fees. Does that mean we can’t apply for full NHS funding for care fees?”
This is not true.
NHS Continuing Healthcare (unlike local authority social care) is not means-tested and is not based on wealth. The NHS is available to everyone if they qualify for the funding. Therefore, the individual’s wealth has no bearing on whether or not they meet/met the eligibility criteria.
- “You have to be diagnosed with dementia to be eligible for funding.”
This statement is false!
One of the most common misconceptions regarding NHS Continuing Healthcare is that funding is automatically awarded on the existence of a specific medical diagnosis. However, decisions regarding eligibility are based primarily on care needs, not a diagnosis. To be eligible for full NHS funding, the primary consideration is the type and amount of care required to meet the health needs.
For example, a diagnosis of dementia will not trigger automatic eligibility. However, day-to-day memory loss, severe disorientation and confusion may make someone eligible.
- “My father is receiving excellent care in the care home. Receiving full NHS Continuing Healthcare will change the quality and level of care”
This is false!
NHS Continuing Healthcare is solely in relation to the funding of the care – who pays? If eligible for NHS Continuing Healthcare, the NHS pays the full cost of the care package and it removes a huge financial burden on families. In our fifteen years of experience, a patient has not been moved as a result of receiving full NHS funding for the care and has not received a lower level of care.
- “The care home has told me that my relative wouldn’t be eligible for NHS Continuing Healthcare, so it’s not worth applying for an assessment.”
This is not true!
Care homes are not qualified to undertake NHS Continuing Healthcare assessments. The only way to ascertain whether or not an individual meets the eligibility criteria is by requesting a formal assessment from your local health authority.
We have been successful for many clients where the care home advised the family their relative would not qualify. Read Mr Gibson’s story.
- “The NHS has assessed my father and said he is not eligible. Surely, we can trust the NHS to make the right decision.”
Sadly, the NHS make unlawful decisions. Many of our clients have appealed NHS decisions and they have been overturned, resulting in individuals receiving NHS Continuing Healthcare. Department of Health statistics show that 22% of NHS decisions are overturned at the first appeal stage at local level and 30% at the national ‘NHS England’ level.
Our clients are testament the NHS can make the wrong decision.
- “Social services contributed to my mother’s care fees. I’ve been told that I can’t recover any fees paid.”
Once again, this is false!
Any personal monies paid towards care (including any relinquished state or private pensions, and some state benefits) are recoverable, if you are found eligible for NHS Continuing Healthcare. This is true even if care fee contributions were paid directly to social services, and not to a care home.
- “You have to be in a nursing home to be considered for funding.”
This is simply not true!
National guidelines specifically prevent assessors from considering the setting of an individual’s care when considering whether they meet the eligibility criteria for funding.
Despite this, it is not uncommon to discover that this guideline has not been adhered to when formal assessments are undertaken. If there is evidence to suggest that the assessors have factored in the setting of an individual’s care, the decision may be flawed and can be appealed.
- “My relative has passed away. I’ve been told that it’s too late to request a review.”
This is also false.
Whilst it is advisable to commence the review process as soon as possible, and preferably while an individual is receiving care, you are still able to request a retrospective review after they have passed away. The review will be completed using their care and medical records.
However, it is important to be mindful that the Department of Health has imposed time limits on how far back you can claim for, which is based on where your relative lived. In England, you can request a review of unassessed periods of care back to April 2012, but in Wales you can only claim for 12 months from the date of request.
- “Surely, my mother would only be eligible for this funding if she needed end of life care.”
When an individual is at end-of-life care, they can receive funding through the Fast track process. However, eligibility for NHS Continuing Healthcare is awarded on the type and amount of care provided and is awarded at any stage when an individual requires long-term care.
- “The Integrated Commissioning Board (ICB, formerly Clinical Commissioning Board) have told me I don’t need a solicitor to help me to appeal.”
It is possible for you to pursue a claim independently without instructing a solicitor or advocate. However, it is a difficult process and we have many clients who have initially tried themselves and found the process challenging. There are many companies who specialise in this area and may be recommended by the ICB. However, as solicitors, we must act independently, are regulated and very experienced in what we do. Our Nursing Care team have more than 15 years of experience and have won awards from The Law Society and Age Cymru for their work. Some of our clients question how non-medically qualified professionals can challenge health decisions. Whilst the people making decisions regarding eligibility for continuing healthcare are health and social care professionals, their decisions are being challenged and it is our job to demonstrate they are unsound by analysing medical evidence and applying it to the criteria. Whilst the process is not legal, it is a dispute resolution process and many Independent Review Panel chairs are former solicitors and barristers.Due to our experience and depth of knowledge, we are respected by health and social care professions and panel chairs for the work we do. Our track record shows, by recovering millions of pounds, that we hold the NHS to account.