If an individual is receiving care primarily due to physical or mental health needs, the cost of their care should be the responsibility of the NHS under the Continuing Healthcare scheme.
On the face of it, the system may appear deceptively simple – an individual’s needs are measured and, if their needs are primarily for healthcare, the NHS is required to meet the full cost of their care. Unfortunately, the system is seldom this straightforward, and families are often perplexed by the long and intricate assessment process.
As specialists in the field, SFE lawyers regularly provide assurance to concerned individuals who are struggling with the minefield of the Continuing Healthcare system. In this blog, we will attempt to add clarity to the process by tackling some of the most prominent myths surrounding it
1. “You have to be diagnosed with dementia to be eligible for funding.” – This statement is false!
One of the most common misconceptions regarding NHS Continuing Healthcare is that funding is automatically awarded on the existence of a specific medical diagnosis. However, decisions regarding eligibility are based primarily on care needs, not a diagnosis.
For example, a diagnosis of dementia will not trigger automatic eligibility. However, day-to-day memory loss, severe disorientation and confusion may make someone eligible.
2. “My relative owned a house, and was able to afford their care fees. Does that mean we can’t apply for an assessment?” – This is not true!
NHS Continuing Healthcare is not means-tested. Therefore, the value of the individual’s estate should have no bearing on whether or not they meet/met the eligibility criteria.
3. “My relative has passed away. I’ve been told that it’s too late to request a review.” – This is also false.
Whilst it is advisable to commence the review process as soon as possible, and preferably while an individual is alive, you are still able to request a retrospective review after they have passed away. The review will be completed using their care and medical records.
However, it is important to be mindful that the Department of Health has imposed time limits on how far back you can claim for, which is based on where your relative lived.
4. “The care home has told me that my relative wouldn’t be eligible for NHS Continuing Healthcare, so it’s not worth applying for an assessment.” – This is not true!
Care homes are not qualified to undertake Continuing Healthcare assessments. The only way to ascertain whether or not an individual meets the eligibility criteria is by requesting a formal assessment from your local health authority.
5. “Social services contributed to my mother’s care fees. I’ve been told that I can’t recover any fees paid.” – Once again, this is false!
Any personal monies paid towards care (including any relinquished state or private pensions, and some state benefits) are recoverable, if you are found eligible for Continuing Healthcare. This is true even if care fee contributions were paid directly to social services, and not to a care home.
6. “You have to be in a nursing home to be considered for funding.” – This is simply not true!
National guidelines specifically prevent assessors from considering the setting of an individual’s care when considering whether or not they meet the eligibility criteria for funding.
Despite this, it is not uncommon to discover that this guideline has not been adhered to when formal assessments are undertaken. If there is evidence to suggest that the assessors have factored in the setting of an individual’s care, the decision may be clinically unsound and can be appealed.
Partner at Hugh James
Lisa Morgan is a Partner at Hugh James, a top 100 UK law firm, and head of the Nursing Care department.
She is regarded as an experienced and specialist solicitor leading in the niche area of continuing healthcare.
She has acted for hundreds of clients in England and Wales in challenging current and retrospective decisions to refuse NHS funded continuing healthcare to long-term nursing home residents.
Her department has successfully recovered over £100 million in wrongly paid nursing fees since its inception in 2006.
Lisa won the prestigious and highly acclaimed Law Society Junior Lawyer of the Year 2010 Excellence Award due to her work in an area largely neglected by the profession, for encouraging others to get involved in this field of law, and for the large amount of pro bono work and mentoring she undertakes. In 2015, she received the Cardiff Law Society Simon Mumford award.