It has become essential for private client solicitors to identify who should pay for long-term care. The appointed deputy of an individual and all members of staff delegated with deputyship should know how to access appropriate advice and expertise on NHS Continuing Healthcare (CHC). It is crucial to ensure an individual has been properly assessed for CHC and whether a retrospective review should be completed.
If an individual’s primary need for care is for health, CHC should be provided free by the NHS, regardless of the individual’s means or setting of their care. However, health authorities across England and Wales continue to wrongly assess individuals’ needs, leading to a significant financial burden and individuals having to sell their family homes to pay for nursing home costs.
In 1999, the Court of Appeal determined when a person’s care would be the NHS’s responsibility. The court held that a local authority is only responsible for nursing services if the individual’s needs are incidental or ancillary to the provision of accommodation that a local authority is under a duty to provide. Following this case, the Department of Health and Welsh Assembly Government issued guidance stating that all NHS bodies must review their eligibility criteria to make it compliant with guidance and the Coughlan judgment.
The National Framework for NHS Continuing Healthcare (the Framework) is now in place, with the aim of clarifying who is eligible for CHC. The Framework includes a number of assessments, a checklist to screen eligibility, a fast-track assessment for end-of-life care, and a comprehensive assessment, the Decision Support Tool (DST).
In completing the DST, Multi-Disciplinary Teams (MDTs) often fail to identify the correct levels of need across various care domains, fail to consider the overall interactions between needs, and base eligibility on factors that should not influence decision-making. There are strict time frames to challenge a decision, and if these are missed by professional Deputies or Executors, they place themselves at risk of complaints and potential professional negligence claims.
The first step for a solicitor is to check that an individual has been properly assessed, if at all, for NHS CHC by way of an MDT assessment. If no assessments have been completed, the client will be advised on the prospects of successfully claiming NHS CHC. If there is merit in challenging a negative decision through the appeals process, the solicitor will prepare written submissions to demonstrate the health authority’s decision is unsound.
It is possible to request retrospective reviews for periods of care that have not been assessed since April 2012 in England. However, in Wales, this is limited to only one year from the date of the request.
In conclusion, private client solicitors must be aware of the need to identify who should pay for long-term care. An individual must be properly assessed for NHS CHC, and if the decision is incorrect, a retrospective review may need to be completed. The appeals process is strict, so professional Deputies or Executors should be aware of the time frames and avoid potential professional negligence claims. The role of the solicitor is to ensure the client’s interests are safeguarded, and the client receives the appropriate care they are entitled to receive.
Our Nursing Care department is one of the leading national experts in the recovery of wrongly paid care home fees; our specialist nursing care team have successfully recovered over £200 million for our clients since the department was set up in 2006.
We are also able to support our clients access NHS Continuing Healthcare funding even if they have not started paying for nursing care fees.
