The introduction of the Care Act 2014 can assist families in the continuing fight for NHS funding. If a person has a health need then the NHS have a duty to fund the entire cost of care including accommodation. Frequently the NHS fail to abide by their duties and many individuals are incorrectly paying for their care.
The Local Authority play an important role. The Local Authority limits test is an evaluation of whether a person’s care is beyond that for which the Local Authority can legally take responsibility i.e. where care is merely incidental to the provision of accommodation and where care needs do not constitute a primary health need.
Before the implementation of the Care Act 2014 there were many problems with the Local Authority’s involvement. Very few social workers did not have adequate training on NHS Continuing Healthcare, they do not usually attend Multi Disciplinary Team meetings (which is the meeting between professionals to discuss an individual’s health circumstances) and even if they did attend they did not insist that the Local Authority’s limits were discussed.
Prior to the Care Act 2014 the usual route of being assessed for NHS Continuing Healthcare was via a Checklist on a Hospital ward or in the community or care home by a referral to an NHS Continuing Healthcare team. This way, the control lies totally with NHS staff.
The Care Act 2014 now give families a quicker and alternative referral route. Families should make a formal referral to their local Social Services Department requesting a referral from the Local Authority under the Care Act 2014. Local Authorities have a duty to assess any adult who ‘appears’ to have any level of need for care and support.
At this stage, do not mention NHS Continuing Healthcare. You are merely requesting an assessment of need.
If the Local Authority attempts to discuss finances at this stage, decline to discuss and advise them that the Care Act 2014 states that finance questions must not determine access to an assessment and that finances can be discussed after the assessment of needs by the Local Authority.
Once you receive a date, politely remind the Local Authority that under the Care Act 2014 they have a duty to consider potential eligibility for NHS Continuing Health as per the Care Assessment and Support (Assessment) Regulations 2014 paragraph 7(1) and (3).
Also remind the Local Authority that Regulation 5(1) requires the assessor to have the skills, knowledge and competence to complete the assessment and must be appropriately trained. As such they must know how to assess whether care is beyond the Local Authority limits.
If the Local Authority try to cancel the meeting remind them that you have made a lawful request for an assessment to Social Services under the Care Act 2014 and they have a duty to accept this referral and to assess care needs. You should advise them that to refuse to carry out this assessment would be a breach of the regulations and will lead to a formal complaint.
To finish off your formal notice of what you expect at the meeting, advise the Local Authority that as part of their assessment of care needs that they should consider using the NHS Checklist.
This approach may seem long winded and you may feel uneasy being so assertive. However this strategy will make the Local Authority aware of their duties under the Care Act 2014 which they are obliged to follow.
If you require any further assistance in relation to NHS Continuing Healthcare or your believe that your relative has been incorrectly assessed then please get in touch using our online form or telephone 01536 276300.
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