Questions about funding care?
The Coronavirus Act 2020 and its impact on NHS Funded Care: Life Matters for October from Lester Aldridge is an update with more answers
This the latest "Life Matters" article has been written by James Pantling-Skeet, one of the talented Community Care Chartered Legal Executives from the Lester Aldridge Healthcare Team. James has written a response and update to one of his previous articles in the summer about the impact of covid on NHS funded care.
"Earlier this year Lester Aldridge 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.
In response to the coronavirus pandemic, Parliament passed the Coronavirus Act 2020. We sought to explain the implications of the Coronavirus Act 2020 on funding care in our Life Matters article published in the summer. This article is available by clicking here.
The purpose of this month’s Life Matters article is, therefore, to provide readers with an update in light of further changes to funding care effective from 1 September 2020.
A reminder: The Coronavirus Act 2020 changes
By way of reminder, 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.
On 31 July 2020, NHS England set out the third phase of the NHS’s response to COVID-19 in a letter to relevant bodies and partners. The letter sets out five principle priorities for the next phase of the NHS’ Coronavirus response. The intention is to accelerate “the return of non-COVID health services, making full use of the capacity available in the window of opportunity between now and winter”.
NHS England’s letter summarises the revisions, which have been made to the Hospital Discharge Service Requirements as follows:
“The Government is continuing to provide funding to support timely and appropriate discharge from hospital inpatient care in line with forthcoming updated Hospital Discharge Service Requirements. From 1 September 2020, hospitals and community health and social care partners should fully embed the discharge to assess processes. New or extended health and care support will be funded for a period of up to six weeks, following discharge from hospital and during this period in a comprehensive care and health assessment for any ongoing care needs, including determining funding eligibility, must now take place. The fund can also be used to provide short term urgent care support for those who would otherwise have been admitted to hospital”.
With regard to NHS Continuing Healthcare, it states:
“The Government has further decided that CCGs must resume NHS Continuing Healthcare assessments from 1 September 2020 and work with local authorities using the trusted assessor model. Any patients discharged from hospital between 19 March 2020 and 31 August 2020, whose discharge support package has been paid for by the NHS, will need to be assessed and move to core NHS, social care or self-funding arrangements”.
Crucially, for patients in receipt of care funded through the temporary COVID-19 NHS funding, which was announced in tandem with the simplified Hospital Discharge Process known as Discharge to Assess (or D2A) earlier this year, the Hospital Discharge Process will be updated from 1 September 2020.
Clinical Commissioning Groups (CCGs) must resume NHS Continuing Healthcare assessments. According to the Reintroduction of NHS Continuing Healthcare guidance, from 1 September 2020 all NHS Continuing Healthcare related process should have recommenced, including eligibility assessments, 3 month and 12 month annual reviews, and individual requests to review eligibility decisions, both at a local level via the local resolution process and through independent review by NHS England.
In terms of paying for care, the transition back to assessing eligibility for NHS Continuing Healthcare is a reminder of the real importance of considering NHS Continuing Healthcare eligibility if a loved one requires care.
Once the temporary COVID-19 NHS funding ceases, patients, families and representatives will need to think very carefully about funding care, particularly given the average costs. Any patient currently in receipt of a temporary COVID-19 NHS funded package will be re-assessed.
According to Laing Buisson’s research, the average cost of residential care in the UK in 2019 was £33,852 a year. This had risen to over £47,320 a year if a patient required nursing care. When the average costs of care are so high, identifying how to meet these costs in a way which maximises a patient or loved one’s income is vital.
If a package of care is not funded through the COVID-19 NHS funding, and the patient does not satisfy the means tests to qualify for a Local Authority funded package of social care, the patient will be a self-funder unless and until eligibility for NHS Continuing Healthcare or NHS Fast Track funding has been established. This means the patient, their family or representatives will need to be prepared to fund the cost of care unless and until an eligibility decision has been made.
If the patient is likely to be a self-funder, it may be helpful to consider taking specialist financial advice about other care funding mechanisms available (for example, a care fees annuity) to maximise income and help manage the potentially huge costs of care.
If a patient was discharged from Hospital between 19 March and 31 August 2020 and is in receipt of COVID-19 NHS funded care, will the funding automatically stop?
No. Anyone funded through the COVID-19 NHS funding between 19 March and 31 August 2020, will continue to be funded through those arrangements until the relevant assessments have been completed to transition these patients to normal funding arrangements.
This means if a patient currently has a COVID-19 NHS funded package of care and support, this must continue until the relevant assessments have taken place to determine eligibility for means-tested Local Authority funded social care, or, non-means tested NHS Continuing Healthcare, NHS Funded Nursing Care, or NHS Fast Track funding.
Can a patient who has self-funded care between 19 March and 31 August 2020 apply for NHS Continuing Healthcare or Local Authority funded social care?
Yes. Where individuals are assessed and found eligible for NHS Continuing Healthcare and the individual, or the Local Authority, funded any part of their care whilst awaiting an NHS Continuing Healthcare assessment during this period, CCGs should arrange for refunds to take place. This process should be managed in accordance with the usual processes set out in the National Framework for NHS Continuing Healthcare.
Discharge to Assess Funding
The Updated Hospital Discharge Service Requirements include Discharge to Assess or D2A funding for a period of up to a maximum of 6 weeks.
Importantly, the Guidance is clear that “eligibility assessments for care and health needs should not take place in acute hospital settings”. The reason is twofold: firstly, to ensure the aim of freeing up acute hospital beds as quickly as possible is achievable. Secondly, because it is very difficult to accurately assess a patient’s needs in an acute environment.
How does this impact funding care?
This means that a patient, upon discharge from hospital, may be provided with non-means tested D2A funded care for a period of up to a maximum of 6 weeks.
What happens after the 6-week period has expired?
Whilst the aim is to ensure all the relevant assessments have been completed before the end of the 6 week period, the Guidance is clear that:
“On the rare occasion that a decision is not reached within this time frame, the parties paying for care should continue to do so until the relevant ongoing care assessments are complete”.
This means that no patient should be responsible for funding care until all the necessary health and social care assessments are complete and an eligibility decision has been made. After week 7, the Guidance provides Local Authorities and CCGs with information about how public bodies should continue to fund care until the necessary assessment processes are complete.
Has the eligibility criteria for NHS Continuing Healthcare and NHS Fast Track funding changed?
No. A detailed explanation of the criteria to qualify for non-means tested NHS Continuing Healthcare is available by clicking here.
If an assessment does not identify eligibility for NHS Continuing Healthcare or NHS Fast Track funding, can I challenge such a decision?
Yes. There is nothing within the Coronavirus Act 2020 which prohibits appealing a refusal to award NHS Continuing Healthcare or NHS Fast Track funding. An explanation of the process for challenging NHS funding decisions can be found by clicking here.
As with eligibility assessments, most appeals are likely to be conducted remotely using video technology. This is something we have seen a number of CCGs embracing to assist with tackling the backlog of local resolution requests.
How can I prepare?
In order to prepare, it is essential that a patient or family representative works with any carers or care providers to collate as much evidence as possible. NHS Continuing Healthcare is an evidence-based process and so it is vital to ensure detailed care records, diarises, intervention charts, and notes are available to demonstrate the ‘primary health need’ criteria is met. Thorough preparation is critical to success.
We offer a free initial consultation and 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. Consultations are also available via virtual meetings : advice is available through phone, email, Skype and Zoom.