What is Continuing Healthcare?
NHS Continuing Healthcare is a way in which the NHS solely funds care for elderly and
unwell people who are aged 18 or over in order to meet physical or mental health needs
which are more than just social needs.
Many individuals will be assessed as requiring some health care and will receive some NHS funding
to meet any nursing needs. The remainder of the care will be provided by Social Services, which is
not free of charge and can become extremely costly.
Therefore, whenever care is provided and it seems that the needs of that person are primarily health
related, it may well be that they should not be paying for their care at all and it should be funded by
the government through NHS Continuing Healthcare.
The first and most important thing to do is to ensure that a proper assessment has taken place and
that family members and anyone involved in the care of the person being assessed is consulted and
given an opportunity to provide relevant information as to their needs.
Assessment process
It has become common place for anyone entering the care system from a hospital admission or
requiring care for the first time to be assessed for eligibility for NHS Continuing Healthcare.
The first step is to assess whether or not they meet the 'Checklist.' This is a guide for practitioners
and assessors to assist in determining who needs to undergo the full assessment.
Full Assessment
If the individual passes the checklist stage, the local Continuing Healthcare team will ask a MultiDisciplinary Team (MDT) to undertake a full assessment in order to determine eligibility for
Continuing Healthcare. The tool used is called the 'Decision Support Tool'. Family members should
be asked to contribute to this.
The tool is used to determine whether a person's primary need is a health need. Deciding whether
this is the case involves looking at 12 different aspects ('domains') of their presentation including as
mobility, cognition and incontinence, and working out whether the level of need within each 'domain' is
low, moderate, high or in some areas, severe.
Consideration is given to the nature, intensity, complexity and unpredictability of an individual's needs.
Someone may be assessed as having only low or moderate needs across the majority of the
domains, but because their behaviour is so unpredictable, or the nature of their illness means that
health care is absolutely necessary, they will be assessed as being eligible. It is very much a clinical
decision.
The MDT will make a recommendation to the Clinical Commissioning Group (formally 'PCT')
responsible for commissioning Continuing Healthcare based on its clinical expertise. The Clinical
Commissioning Group usually makes decisions on eligibility by convening a Commissioning Panel.
The Panel will either agree, or disagree with that recommendation.
If Social Services support will not be sufficient to meet an individual's needs and providing social
support only would risk their life or wellbeing, then the person should be eligible for NHS Continuing
Healthcare.
Appealing against the Panel's decision
Should you, or your family member, make an unsuccessful application for Continuing Healthcare we
can review the evidence to consider the prospects of a successful appeal. We may be able to assist
you in sourcing and putting forward the correct evidence to ensure that the individual's health needs
have been fully considered by the MDT and the Panel.
In the usual course, if you wish to appeal the Panel's decision, you must write detailing the reasons
for your appeal within six months from the date of the decision letter. There is no funding provision
during the Appeals process in line with the Department of Health National Refunds Guidance (March
2010). However, if the Panel decision is subsequently overturned the funding will be re-instated to
include the back-dated payment.
The reasons for appeal must be as follows:

that you believe the process is flawed; and/or

the eligibility criteria has been misapplied.
You will be required to provide the following:

grounds for the appeal, giving as much detail as possible; and

evidence to support each area of your claim.
When you appeal the Continuing Healthcare team (not the MDT) will consider whether there is
sufficient evidence or reason to refer the matter back to the Panel; if there is it will support you in
doing so. If not, all NHS Continuing Healthcare departments will offer some form of local resolution.
This is commonly in the form of a Resolution Meeting where the family is invited to meet with one of
the clinical leads in the department to discuss the reasons for ineligibility.
If the appeal is unsuccessful, or the Continuing Healthcare team does not support the case returning
to the Panel, there is the option to take the matter to NHS England (formally the Strategic Health
Authority) if you are still not satisfied with outcome.
We would provide you with further advice on the prospects of successfully taking the case to this
stage.
If NHS England does not agree that the individual is eligible for Continuing Healthcare funding, the
final point of appeal is with the Parliamentary and Health Ombudsman. There are a large number of
cases with the Ombudsman at this time and as decisions become available, these will be published to
act as additional guidance to practitioners and lawyers who are concerned with Continuing Healthcare
appeals but as a guide, the Ombudsman has generally not overturned decisions where the process
has been flawed unless the evidence supports eligibility for Continuing Healthcare.
Retrospective Assessments
It is no longer possible to ask for a retrospective assessment of eligibility if you or a family member
thought that you should have been eligible for Continuing Healthcare funding for any period between
1 April 2004 and 31 March 2012.
However, if you asked for a retrospective assessment of eligibility on or before 31 September 2012
but have not yet had the opportunity to complete the paperwork, we may be in a position to advise
and assist you further.
For further information on the above or on any other Private Capital matter you may have, please
contact:
Anthony Fairweather, Partner
Jess Flanagan, Solicitor
T: 0845 209 1265
anthony.fairweather@clarkewillmott.
T: 0845 209 1160
[email protected]
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statement of the law. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability
to anyone who does rely on its content. Last updated: June 2013. Ref: -15683-1
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