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31 January 2022 | Comment | Article by Michelle Evans

NHS continuing healthcare in Wales: revised national framework

Michelle Evans, Senior associate in our Nursing Care department discusses the revised 2021 NHS continuing healthcare framework which is due to come into force April 2022.

Following the original introduction of a national framework for NHS continuing healthcare in Wales in 2010 and an update in 2014, the Welsh Government published a revised national framework for continuing healthcare which replaces the previous arrangements set out in the 2014 national framework. The effective date for implementation of this framework was due to take effect from 1 November 2021. However, in light of the pandemic, the implementation has now been deferred until 1 April 2022.

The revised 2021 framework was published, but minor corrections to the 2021 documents are being made and will be re-published soon. However, I had an opportunity to review the document before the deferred announcement was made.

The revised framework does not seek to change the eligibility threshold for NHS continuing healthcare funding. Which is explained in our blog: ‘What is the difference between health and social needs‘.

If you would like to talk about any of the topics raised in this post, you can contact our Nursing Care department today.

The most significant change introduced by the framework is that individuals or their representatives must inform local health boards, in writing within 28 days, of their intention to appeal a decision not to find eligibility for NHS continuing healthcare funding. The 28 days begins from the date of receipt of the outcome letter from the health board.

An individual or their representative then has 6 months to submit their appeal in writing.

The framework does allow for deviation from these timeframes ‘in exceptional circumstances’. However, this is not explained further.
This is in contrast to England who do not have a strict 28 day time limit. It is therefore imperative that individuals or their representatives act promptly to avoid any appeal being out of time and effectively stuck out.

The 28 day time limit is very restrictive and provides families limited time to seek advice from care homes and advocates on a complex process.
The national framework for NHS continuing healthcare for implementation in Wales also includes an assessment tool for health boards to use when assessing eligibility for funding. This is called the Decision Support Tool (DST). This has also been revised.

Within the DST there are domains for a number of categories such as cognition, behaviour, continence, breathing, skin integrity etc. and the provision of continuing healthcare can be dependent upon the level awarded in one or more of the domains. The higher the levels of need awarded the more likely a finding of eligibility will be made.

The revised DST has reordered the care domains to bring them in line with the DST used in England. However, there are some marked differences within some of the care domains that, will disadvantage Welsh applicants.

The main area of concern is the domain of Cognition. The 2010 DST was widely criticised regarding the levels of need that could be awarded within this domain. Only a ‘high’ level of need could be awarded within the previous framework, but in England a severe level could be awarded for cognition. This was rectified in the 2014 DST bringing it into line with the DST in England.

The revised 2021 DST provides a ‘severe’ level of need in cognition, but has amended the descriptor for the high level of need. Which in our experience, will make it more difficult for practitioners to assess an individual as having a severe level of need. This will particularly affect those suffering with dementia. The postcode lottery that had previously been removed is likely to return again placing Welsh individuals at a detriment to those across the border.

This is disappointing given individuals receiving care in Wales are already at a significant disadvantage when asking the NHS to review a case retrospectively. In England, an individual or their estate, if the person in care has died, are able to ask the NHS to review eligibility for NHS continuing healthcare funding as far back as 1 April 2012. In Wales, an individual or their estate is only able to ask the NHS to undertake a review for 12 months from the date the request for a review is made. This is having a huge detrimental impact on families in Wales as it is not well known and especially during the past 2 years, when families have had limited access to their relatives in care due to the pandemic.

It remains to be seen if our concerns of the framework will be corrected before the revised 2021 framework is implemented. However, what is clear is that families need to be informed of the changes so that they can act promptly.

Author bio

Michelle Evans

Legal Director

Michelle Evans is a Legal Director in the niche area of continuing healthcare, and has represented many clients, in both England and Wales, in challenging current and retrospective decisions to refuse NHS funded continuing healthcare to long-term nursing home residents.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.


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