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NHS continuing healthcare | a grey area of law

NHS continuing healthcare funding continues to remain a contentious area of care provision. This is not surprising when you consider that a decision that someone is eligible can save them thousands of pounds per month in care fees. It is concerning then that the guidance around eligibility is perhaps the ‘greyest’ of all health and social care guidance, fuelling myths about ‘the rules of eligibility’ and adding to stress and worry for many families.

The boundary between eligibility for health and social care is set out in section 22, Care Act 2014 and comes from the most famous Court case in this area, commonly known as the Coughlan case. In effect, if your nursing needs are more than ‘incidental or ancillary’ to other services which the local authority could be legally expected to provide, you have a ‘primary health need’ and should be funded by NHS continuing healthcare. The wording of section 22, and the guidance in the National Framework, leave the door open for a great deal of interpretation. This is reflected in the findings of the National Audit Office Report (July 2017) into NHS continuing healthcare funding, which noted that; “There is significant variation between Clinical Commissioning Groups in both the number and proportion of people assessed as eligible for continuing healthcare”.

Whilst the report notes that more people than ever are being assessed for this funding, the reality is that if you are referred for an assessment through the standard process (rather than Fast Track), you will probably not be found eligible (only 29 per cent of those referred for a full assessment were found eligible). Our team, who support and represent people at assessments and appeals, have found the eligibility criteria being squeezed; the continuing healthcare assessor’s often rigid interpretation of each sentence relating to need or eligibility leads to ‘line by line’ haggling over the framework at the expense of looking at someone’s needs as a whole. There are plans to review the Framework, possibly issuing new guidance, but we fear this will make things more difficult for service users. To add to these concerns, NHS England has funding cuts firmly in its sights and proposes cuts of £855 million to the continuing healthcare budget by 2020-21.

The best chance to secure funding requires collaboration with care providers, analysis of care needs and an in depth understanding of the framework - don’t miss out, speak to a member of our team today! Contact Debbie Anderson, Head of Health and Community Care Team on 01926 491181 or email:

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