It’s recently been brought to my attention the difference between care in general (referred to as social care) that you might receive in a care home and Nursing Care, which one would receive in a Nursing Home or in Palliative Care. The typical chain of homes for those in need is as follows:
- Assisted Living -where help is optional. A person may have their own flat but have a buzzer to ring for assistance if and when required.
- Retirement Home -can be referred to as Assisted Living but may or may not be speacialist eg Dementia. Is for those retired.
- Care Home -where ‘social care’ i.e. basic care needs are met by care staff, washing, dressing, going to the toilet, providing meals etc, helping you to maintain social activity and general day to day life.
- Nursing Home -nurses are on hand where a person needs ‘social care’ (general care) and where a person also needs nursing care: wounds to be dressed, medication to be given in a certain way, catheterization, or other medical practices that cannot be performed by a carer, only a nurse.
- Palliative care -specialising in end of life care.
A recent article on finding out whether you should be paying for your care or another person’s care and what you’re actually entitled to (may surprise you) I stumbled across recently on the Care To Be Different Website and I reference such here.
It may seem lengthy but you may well find that you or your loved one is paying for care and needn’t be.
Cutting through the confusion in care funding assessments: 12 links to help you
In this article, we explain the basic principles of how things work, and we look at the sticking point in all Continuing Healthcare funding assessments.
There is still a lot of confusion about paying for care – when do you have to pay, what funding is available, when does it apply, how do you get it, etc.
We often hear from people who tell us that they’ve ‘had an assessment’ and they now understand that they’ll have to pay for care.
The first question we ask is, “What kind of assessment did you have?”
The answer is usually, “Well, it was a financial assessment of course.”
At this point the person in question usually doesn’t realise that such an assessment should not have taken place.
This lack of knowledge is not their fault; hundreds of families report that the health and social care authorities often omit to explain the actual criteria for care funding – and that not all care is the same.
In addition, media articles – and also sometimes well-meaning friends – often promote the notion that you have to be means tested and pay for care if you have savings or a house. And yet this is not true.
Whether or not you pay for care does not depend on your money or whether you have a house. It depends on your care needs only.
If you know someone who’s about to start paying for care – or who is already paying – please share this article with them.
How care funding works
Let’s boil things down to the essence of how care funding works. There’s a very simple ‘divide’:
- Local authorities/councils provide social care which is means tested.
- The NHS provides healthcare/nursing care, which is not means tested.
It’s the difference between these two things that is at the heart of care funding assessments – and it is also at the root of almost all disputes about NHS Continuing Healthcare funding.
(Just to clarify: NHS Continuing Healthcare funding is NHS funding for people whose care needs are primarily healthcare needs. Find out more below.)
Here’s a typical scenario…
You need care, and so:
“Local authorities have a duty to carry out an assessment of needs…” (National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (the guidelines for NHS Continuing Healthcare assessments and funding) page 50, paragraph 1.1 and the Care Act)
This does not mean a financial assessment or a means test. Instead it’s an assessment of your actual care needs. At this point no one should ask you about your money or your house.
The next question is:
Which side of that local authority or NHS divide do your needs fall into?
If it’s the social care side, you are means tested. (Alternatively, you can simply pay – you don’t have to undergo a financial assessment).
However, if your care needs are primarily on the NHS side of that divide, you should not be means tested, i.e. there should be no financial assessment.
If your care needs are primarily on the NHS side of the divide, the NHS has a legal duty to pay for your care – and this covers all your assessed care needs PLUS the costs of living in a care home. You should not be asked to contribute to this. This funding is called NHS Continuing Healthcare.
But if you have some healthcare/nursing care needs and also some social care needs, how do you know which side you’re on? It’s simple: It’s through an assessment for this NHS Continuing Healthcare funding. Local authorities must refer you for a Continuing Healthcare assessment if there is even a small indication you could be eligible for this.
No one can tell you whether or not you have to pay for your care (i.e. which side of that divide you’re on) until this has been done.
Remember, this is not a means test or financial assessment; it’s an assessment for full NHS funding. Your money has nothing to do with it – and you should not be asked anything about your savings, assets, pension, house or any other money you may have.
Let’s look at a few points from the National Framework:
Page 50, paragraph 1.1: “Local authorities cannot lawfully commission services that are clearly the responsibility of the NHS…”
In other words, if your care needs are on the NHS side of the divide, it is illegal for a local authority to take responsibility for care; in such situations, if a local authority tells you your needs are just social care needs, and they do a financial assessment, they are acting illegally.
Page 50, paragraph 1.2: “…there is a legal upper limit to nursing and healthcare that can be provided by local authorities.”
Local authorities can in some situations provide a small degree of nursing care but it’s essential for you to have an assessment for NHS Continuing Healthcare before any decision is made about who will be providing and paying for that care.
Page 50, paragraph 1.2: “The powers and duties of local authorities are a matter of Statute and case law, including the Coughlan Judgment.”
The Coughlan case is an important legal case that’s worth reading about (see below). It reinforces the principles outlined here – and it’s still just as valid today as it was in 1999 when Pamela Coughlan won her case at the Court of Appeal.
So what’s a social care need (local authority) and what’s a healthcare need (NHS)?
The difference between these needs is not defined in law, but the National Framework guidelines make it fairly clear:
Page 50, paragraph 2.1: “…in general terms…such a need is one related to the treatment, control or prevention of a disease, illness, injury or disability, and the care or aftercare of a person with these needs (whether or not the tasks involved have to be carried out by a health professional).”
Social care needs:
Page 50, paragraphs 2.2 and 2.3: “In general terms…a social care need is one that is focused on providing assistance with activities of daily living, maintaining independence, social interaction, enabling the individual to play a fuller part in society, protecting them in vulnerable situations, helping them to manage complex relationships and (in some circumstances) accessing a care home or other supported accommodation. Social care needs are directly related to the type of welfare services that LAs have a duty or power to provide. These include, but are not limited to: social work services; advice; support; practical assistance in the home; assistance with equipment and home adaptations; visiting and sitting services; provision of meals; facilities for occupational, social, cultural and recreational activities outside the home; assistance to take advantage of educational facilities; and assistance in finding accommodation…”
(The different lengths of these two descriptions have no bearing on their relative importance.)
The sticking point in all Continuing Healthcare funding assessments
If you’re told in an NHS Continuing Healthcare assessment that your needs are just social care needs, and that you will be means tested, you may want to refer the assessor(s) to the above descriptions.
If your needs are primarily an NHS responsibility, you are said to have a ‘Primary Health Need’. It’s a concept rather than a legal term but, as the National Framework guidelines state very clearly:
Page 51, paragraph 3.1: “‘Primary health need’ is a concept developed by the Secretary of State to assist in deciding when the NHS is responsible for meeting an individual’s assessed health and social care needs as part of his overall duties under the NHS Act 2006 to provide ‘services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness’ [NHS Act 2006, section 3(1) (e)].”
If you’re eligible for NHS Continuing Healthcare, the NHS must cover the cost of not only your healthcare and nursing care needs but also your social care needs. It’s a full package.
Page 51, paragraph 3.5: “…an individual has a primary health need if, having taken account of all their needs… it can be said that the main aspects or majority part of the care they require is focused on addressing and/or preventing health needs.”
It’s about the degree of needs that you have, not their cause or any specific diagnosis; instead, it’s about a full picture of your day-to-day care needs.
Social care is not the same as healthcare/nursing care when it comes to funding
If your care needs are on the NHS side of the divide, and you receive NHS Continuing Healthcare funding, be alert for any attempts to get you to pay a contribution. You should not be asked to do this.
Just because you maybe older and just because you may be living in a care home or other care environment (including your own home), doesn’t change your right to NHS care. After all, if you go to A&E or to see your GP, they don’t generally debate with you how much they’ll do and what you might have to pay them to finish the job. It’s no different when you need care. If your needs are of such a level that you require NHS care, then you should receive NHS funding to pay for all your assessed care needs.
It’s the divide between local authority and NHS care that is at the centre of NHS Continuing Healthcare assessments and decisions. If you’re having a Continuing Healthcare assessment, make sure you’ve read the eligibility criteria and that you’ve pulled together as much information as you can to support your case for this funding – and to show that your care needs are on the NHS side of that divide.