In the dark about funding care?
Lester Aldridge explains the ins and outs of accessing health and social care in the New Forest
This month's Life Matters for Lymington is written by James Pantling-Skeet in the Lester Aldridge Community Care team. This new information on the subject is particularly pertinent now during Coronavirus crisis and could be unexpectedly relevant at any time.
"At Lester Aldridge, we frequently find that individuals and their families are left feeling ‘in the dark’ when it comes to understanding funding care.
Many are not sure where to start and the Coronavirus Act 2020 has caused yet further confusion for many struggling to navigate the maze of statutory entitlements.
Earlier this year we endeavoured to answer some frequently asked questions relating to funding care. This article is available by clicking here and contains a thorough explanation of NHS Continuing Healthcare, the NHS Funded Nursing Contribution, along with the eligibility criteria and means-testing thresholds for social care. The purpose of this month’s Life Matters article is therefore to explain the recent changes and the impact on funding care.
The Coronavirus Act 2020 - What has changed?
The key changes to be aware of include:
- A simplified Hospital Discharge process.
- Alterations to Local Authority-funded social care which include the introduction of “Care Act Easements”.
- Modifications to NHS Continuing Healthcare.
Simplified Hospital Discharge process
The idea is to expedite the safe discharge of patients from acute hospitals to free up acute beds as quickly as possible.
At the point at which a patient is deemed safe and ready for discharge, the patient should be discharged that same day, within 3 hours of being deemed fit for discharge. There is an emphasis on returning a patient home, if this is possible.
If a patient is discharged home, the patient should be visited at home on the day of discharge, or the day after, by a lead professional or MDT, to arrange any care support that needs to be put in place at home.
Importantly, for any patient requiring care and support on the day of discharge, a co-ordinator should arrange the necessary provision before the patient leaves the hospital. It should not be the case, therefore, that in a bid to free up acute hospital beds, a patient is discharged without the appropriate support in place to ensure their care needs are appropriately and safely met.
If a patient’s care needs are too great to return home, a suitable bed or temporary care home placement should be arranged. For any patient admitted from a care setting, the patient should be discharged back to the original care setting.
How does the impact funding care?
In terms of funding care, all support provided as a result of Discharge Today will be paid for by the NHS. A Clinical Commissioning Group or Local Authority may refer to this as the “COVID-19 fund” or “COVID funding”.
This simply means that Discharge Today care should be provided on a non-means tested basis – i.e. free, at no cost, to the individual or their representative at the point at which a package of care is arranged.
Any patients requiring palliative care may require NHS Fast Track funding, for which there is a separate process. More information regarding this form of non-means tested NHS funding for palliative care or end of life patients can be found by clicking here.
Experience of these changes so far suggests there seems to be confusion around whether palliative care or end of life patients require COVID funding or if they should be fast-tracked.
It is our suggestion that if a patient meets the criteria for NHS Fast Track funding, this should be explored in the first instance for two reasons.
Firstly, it may negate the need to go through the fast-track process later on, at a time when the focus must rightly be supporting a loved one through a difficult time albeit this form of funding is subject to review and is therefore not necessarily definitive.
Secondly, the legislation provides for the power to retrospectively charge for Discharge Today care. We have no guidance yet as to how retrospective charging may operate in practice and so if a patient can be fast-tracked it seems this funding stream may provide more certainty.
Changes to social care provided by a Local Authority
The status quo continues (i.e. it should be business as usual with regard to the Care Act 2014 duty on a Local Authority to assess and provide care and support to adults, if an assessment determines the eligibility criteria is met and the adult is ordinarily resident in the Local Authority’s area.
Care and support provided is means tested and is therefore subject to a financial assessment. Unlike care provided by the NHS, it is not free of charge.
The Coronavirus Act 2020, Regulations and Guidance do, however, permit a Local Authority to decide not to comply with some of the usual Care Act obligations if, and when, a Local Authority has taken specified steps to activate so-called ‘easement’ provisions provided for within the new legislation.
Where a Local Authority has followed the specified process to trigger the easement provisions if it can demonstrate the criteria has been met, a Local Authority can choose not to comply with the following Care Act duties:
- Duty to assess needs
- Duty to assess the needs of a carer
- Duty to give written records of an assessment
- Duty to complete annual reviews
- Duty to give effect to a preferred place of accommodation
- Duty to conduct a financial assessment before services are provided
An example of the practical effect of this is as follows. When operating under easement, the duty to assess and met needs is downgraded to a power to meet needs, unless a failure to meet care needs would result in a breach of the individual’s human rights.
Rest assured however that there is a clear expectation in the Easements Guidance that Local Authorities should continue operating on the basis of business as usual for as long as is reasonably practicable.
Inevitably, where a Local Authority has triggered the easements, it is going to lead to differences in approach by different Local Authorities which is a big change from the national processes provided for in the Care Act 2014.
At least seven Local Authorities are known to have triggered the easements since these changes became effective, however, a number have reverted back (i.e. turned off the easements) leaving just two reported to be operating under easement. We recently provided an update regarding the Care Act Easements here.
How does this impact funding care?
In terms of paying for care, these changes mean Local Authorities are not required to charge for care during the emergency period. There is, however, the power to retrospectively charge. It is important to be aware of this before agreeing to care and support contracts.
If a Local Authority does wish to charge, they are required to complete a financial assessment before charges are raised. This may happen at any time during the emergency period, or within a reasonable time after the emergency period.
In some instances, a Local Authority may complete a ‘light touch’ financial assessment. This means that, in some cases, a Local Authority may choose to treat a person as if a financial assessment has been carried out. A Local Authority must be satisfied on the basis of evidence that the person can afford, and will continue to afford, any charges due.
Changes to NHS Funding & NHS Continuing Healthcare
Key changes include a suspension on a Clinical Commissioning Group’s (CCG) duty to:
- Assess eligibility for NHS Continuing Healthcare, albeit a CCG can choose to complete an eligibility assessment.
- Have regard to the National Framework for NHS Continuing Healthcare. This means where an NHS body agrees to complete an eligibility assessment or review, there could be variations in the way the assessment and decision-making process is undertaken by different CCGs.
- Complete eligibility assessments, reviews & process appeals within specified timescales. This will cause delays and backlogs.
It is also worth noting that the NHS Funded Nursing Contribution recently increased to a weekly rate of £183.92.
How does this impact funding care?
In terms of paying for care, it is still imperative to consider NHS Continuing Healthcare eligibility if a loved one requires care. It is, after all, non-means tested (i.e. free, at no cost) and so could make a huge difference.
Even though we are seeing delays in processing eligibility assessments or requests for reviews of decisions refusing to award funding, it is vital to lodge an eligibility assessment or appeal with the responsible NHS body to secure a place in the queue.
If, your package of care is not funded through the COVID-19 funding, and you do not satisfy the means tests for social care, meaning your loved one is self-funder, you need to be prepared to fund care until such time as an eligibility decision has been made.
If you subsequently succeed with NHS Continuing Healthcare, it is possible to retrospectively recover care fees incurred through the NHS redress process with interest added.
Our advice is to ensure you work with your loved one and the carer or care provider to keep very careful and detailed care records, diaries, intervention charts, or notes to start building up the evidence required to demonstrate the ‘primary health need’ criteria is met, in preparation for any future review, assessment or re-assessment.
We run a weekly legal advice clinic between 4-5pm every Tuesday where no prior appointment is required if you would like to discuss funding care with a Community Care specialist.
Life Matters: Lester Aldridge Solicitors on a wide range of legal matters
Life Matters is a regular monthly feature on Lymington.com, which covers a wide range of legal subjects and is always written by one of the Lester Aldridge team. You can see a list of all published articles by clicking to the Lester Aldridge Solicitors webpage on Lymington.com here.
Free consultation on any legal matter
Lester Aldridge Solicitors are based in London, Southampton and Bournemouth - where the office covering the New Forest is situated conveniently close to the main Bournemouth train station. Their specialist teams in the various fields of law will be happy to advise and assist you, starting with a completely free initial consultation during which you can decide whether you feel able to trust them with your confidential information. For more information please click here. Currently during the coronavirus crisis of course consultations are via virtual meetings : advice is available through phone, email, Skype and Zoom.