The Decision - Continuing Care

How Will it be Decided Whether I am Eligible for Fully Funded NHS Continuing Care?

To establish whether a person is eligible for fully funded NHS care, to meet their continuing care needs, a comprehensive Continuing Care Assessment will take place.  A Continuing Care Assessment will take past and current health problems into account, so that the ultimate decision may be applied retrospectively.

Legal Guidance

Specific guidance has been given by the Courts to the National Health Service and Local Authorities as to how a person’s eligibility for fully funded NHS care should be assessed.

There are two leading cases on whether the responsibility to fund a person’s continuing care falls on the National Health Service or upon the Local Authority:

The Coughlan Case

The Health Authority proposed that the responsibility for Ms Coughlan’s care should pass to the Local Authority, when her residential care home was considered for closure.  If the Local Authority became responsible for her care, Ms Coughlan may have had to pay a contribution towards the cost of her care, subject to a means test.

Ms Coughlan required care 24 hours per day, she was tetraplegic, suffered recurrent severe headaches, was doubly incontinent and partially paralysed in her respiratory tract.

The Court of Appeal held that the eligibility criteria for health care services of Ms Coughlan’s local Health Trust, were unlawful.  The Local Authority could provide some nursing care in connection with the provision of accommodation and social care, but only to a limited extent.  The Court proposed two tests, known as the “quantity” test and the “quality” test, for establishing whether the type and level of nursing care to be provided to a patient was below a certain threshold, and thus would fall within the scope of a Local Authority. Effectively, the nature of the nursing care provided, and whether it is ancillary or incidental to the provision of accommodation, are the key issues.

The Grogan Case

Mrs Grogan was initially assessed as not being eligible for fully funded continuing NHS care.  The Court overturned this decision, finding that, as with the case of Coughlan, the criteria applied by the NHS were unlawful.  The Judge was also highly critical of the Guidance published by the NHS and endorsed the approach taken earlier in Coughlan.

Relevant Factors

The Continuing Care Assessment should consider factors that would enable the Health and Local Authority to identify whether the person meets the two stage test set in Coughlan. 

However, most Health Authorities identify the following factors as being crucial to making a decision, which in fact largely reflect the test for eligibility for higher levels of Registered Nursing Care Contribution towards the cost of nursing care, rather than the test set in Coughlan:

  • Whether the person’s health needs are so complex, intense and/or unpredictable so that they require regular interventions by an NHS professional
  • Whether the person’s physical or mental health condition is rapidly deteriorating or unstable and requires regular interventions by an NHS professional
  • Whether the person requires palliative care and is likely to die in the near future, in which case remaining as a fully funded patient should be an option

When deciding whether a decision about eligibility for continuing care is lawful, it is often necessary to scrutinise the eligibility criteria of the Health Authority, as they may in themselves be unlawful.  This confusion will hopefully be clarified when the nationally approved eligibility criteria are published.

Re-Assessment and Review

Because a person’s health care needs are likely to change over time, their entitlement to NHS Continuing Care will continually be reviewed.

The Health Services Ombudsman (HSO) has found that the criteria used by some health authorities between the dates of April 1996 and March 2004 were not always strictly compliant with national guidance or law. Because of this, many people were inappropriately assessed for eligibility for continuing care between those dates. 

Initially, people who are not happy with a decision can write to their local Health Authority to ask for a review of the decision.  For decisions made after 31 March 2004 they should write to their local Primary Care Trust (PCT).  If they are not happy with the response to that decision, it is possible to request that the local Strategic Health Authority arrange an Independent Review Panel to comprehensively review the case and decision.

What Happens If I Have Already Paid For My Care?

Following the recommendations of the Health Service Ombudsman (HSO) the NHS in Essex has agreed to review retrospectively any decisions on eligibility for continuing health care that have been made since 1 April 1996.  This means that if it is accepted that a past decision was wrong, the NHS in Essex will not only refund fees that have been paid, but also pay interest on these.  This refund can be paid to the patient, or where the patient has since died, to their estate.

Who Can Ask for a Review?

  • The patient / person receiving care;
  • Someone with written authorisation to act on the person receiving care’s behalf, for example:
    • A Solicitor / Legal Representative
    • Carer
    • Independent Advocate;
  • A Receiver appointed by the Court of Protection in relation to the person receiving care;
  • A person with an Enduring Power of Attorney that has been registered with the Public Guardianship Office in relation to the person receiving care;
  • The Executor of the person receiving care’s estate if they have died;