Will The Care Act Affect NHS Continuing Healthcare?

It is common knowledge that there are many complaints about NHS Continuing Healthcare funding and the way care needs are assessed.

During the NHS Continuing Healthcare assessment process, there is a Panel meeting consisting of medical and local authority representatives. The role of the local authority is important because they must establish that it is out of their remit to fund.

The local authority limits test is an evaluation of whether an individual’s care is beyond that for which the local authority can legally take responsibility. If care is merely incidental to the provision of accommodation and the needs do not constitute a primary health need then the local authority can take responsibility.

In NHS Continuing Healthcare assessments, the assessment is mainly focused on whether a person has a ‘primary health need’ – and if they don’t then by default they must have only a social care need. In this case, the individual is then means tested.

However, if a person has care needs that are more than simply social care then by default they have a health care need – and the NHS have to cover the entire cost of care.

It is a legal requirement for the NHS to consider local authority limits in every assessment for NHS Continuing Healthcare funding. If a local authority cannot lawfully provide their services, then care needs have to be seen as a primary health need and the individual is eligible for NHS Continuing Healthcare funding.

The new Care Act 2014 upholds and reaffirms the need to consider if needs are greater than what the local authorities can provide.

The Care Act also resolves some common problems.

One previous problem was that most health and social care professionals do not consider NHS Continuing Healthcare funding when they engage with families. With every review undertaken by a social worker, they should determine whether the care needs are beyond being social care. This has now been imposed as a duty.

Previously a person could only be assessed for NHS Continuing Healthcare in Hospital or by a referral. The Care Act has given a quicker and alternative route in that families can contact Social Services direct to request an assessment. Local authorities must assess any adult who appears to have any level of need for care and support.

When you ask for a meeting, do not mention NHS Continuing Healthcare as the local authority may push you to the NHS. Instead, arrange a face to face meeting and when the local authority start talking about finances, remind them of their duty to assess an individual’s needs before discussing finances. Then, when an assessment is set, remind the local authority that as part of their assessment, they have to consider NHS Continuing Healthcare.

If you do not make it clear to the local authority what their duty is, they will likely not comply with the regulations. Many social care workers are unaware of their responsibilities.