Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

The Impact of the Coronavirus Act 2020 on NHS Continuing Healthcare

NHS Continuing Healthcare is a package of care funded entirely by the NHS for individuals who have complex, ongoing needs. To be considered eligible for this type of funding, which is not means tested, an individual has to demonstrate that they have a primary health need, which means that their need for care and support exceeds the level of support that a Local Authority (social services) can reasonably be expected to provide.

There is detailed guidance around the eligibility criteria and how to assess an individual for NHS Continuing Healthcare, which is set out in the National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care. Importantly, this framework was created based on case law arising from legal challenges to the previous system and aims to remove the “postcode lottery” for funding NHS care. The National Framework implements national policies and procedures which are in keeping with judicial guidance set out in the two key cases, Coughlan and Grogan . Full details of the assessment process set out within the National Framework can be found on our NHS Continuing Healthcare pages, or our Factsheet – NHS Continuing Healthcare for Adults.

Unsurprisingly, in light of the global pandemic COVID-19, the Government have had to reconsider the obligations that the National Framework places on the NHS in terms of NHS Continuing Healthcare.

On 25 March the Coronavirus Act 2020 received Royal Assent and came into force, bringing with it significant changes across the board, including removing the duty on the NHS to assess an individual’s eligibility for NHS Continuing Healthcare funding. Section 14 of the Act states that a relevant body or NHS Trust does not have to comply with their duties to:

a) assess an individual for eligibility; or
b) have regard to the National Framework in relation to assessing individuals for eligibility.

Crucially, this section of the Act applies to the duties arising both before and after the commencement of the Act, meaning that if an individual was waiting for an assessment of their eligibility for NHS Continuing Healthcare, this no longer has to take place. Without this assessment an individual will not be entitled to NHS Continuing Healthcare funding and will therefore have to pay for their own care home fees or support at home until such time as eligibility can be established. Retrospective assessments can be requested, and we would urge anyone in this situation to contact us for more detailed advice on their individual circumstances.

Fortunately, the Government have agreed that the NHS will fund all new, or extended, out of hospital health and social care packages to enable faster discharge and free up numerous hospital beds which may be required for other acute patients. The COVID-19 Hospital Discharge Service Requirements state that for individuals who are to be discharged from hospital with ongoing needs, or who would otherwise need to be admitted to hospital, care and support at home, or in a care home, will be provided free of charge by the NHS. A new “discharge to assess” process has been set out and individuals with any questions about this are encouraged to contact us for more detailed advice on their specific circumstances.

While new assessments are no longer required, if an assessment on eligibility has already taken place, there is nothing in the Coronavirus Act 2020 that removes or dilutes the duty on the NHS to provide the necessary care and support to an individual, or to have regard to the National Framework in this respect. In addition, if an individual does not agree with the outcome of an assessment and wishes to challenge this, the guidance has not changed and therefore the time limits to notify the NHS of your intention to appeal ought to be adhered to as far as possible. We are however likely to see further delays in these appeals being dealt with while the NHS direct their valuable resources towards acute services during this period of crisis. If you are considering an appeal following an assessment of eligibility for NHS Continuing Healthcare please contact us for a free, no obligation discussion.

It is clear that these are unprecedented times and the impact on the NHS is immeasurable. We welcome the changes brought in by the Government to alleviate the pressure but note that they are only temporary. These changes are designed to assist the NHS to manage this crisis and do not address the ongoing issues within the wider health and social care sphere. When the Act is suspended and we revert back to our previous policies and procedures there will inevitably be a backlog of eligibility assessments required and we hope that the Government will continue to take positive steps to provide our NHS with the necessary resources and support to enable them to meet their obligations.

If you have questions on anything discussed in this article, or on NHS Continuing Healthcare in general, please contact Mea North on 02380 71 8195, or email mea.north@mooreblatch.com 


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