Do you really understand the “Well-Managed Needs” argument? - 2018

Published 20/09/2018

Please note: This article was published prior to July 2022, and some information may be outdated.

Well-managed Needs

Well-managed needs – still a hot topic of conversation and controversy that is generally misunderstood by families and the Clinical Commissioning Groups (CCGs) alike. We explain the issues…

Both sides will often quote the “well-managed” needs principle to suit their cause: CCGs use it to reject claims for NHS Continuing Healthcare funding; whereas families quote it to support their claim for free funding for their relative’s care home fees.

So how can both parties be at odds on this issue and who is right?

The issue of well-managed needs tends to raise its head when undergoing a Multi-Disciplinary Team Meeting. The CCG assessors may seek to underplay the individual’s health needs by suggesting that they are “well-managed” – arguably a commonly used metaphor for basically saying that the individual simply won’t qualify for NHS Continuing Healthcare Funding.

Don’t be put off disheartened by these comments as the National Framework states that “well-managed needs are still needs” regardless (see below), and should still be taken into account as part as the overall decision–making process.

However, with all the controversy surrounding the subjective interpretation over the phrase “well-managed needs”, grasping the concept is not quite as simple as it seems at first blush. Of course, your interpretation can largely depend on which side of the fence you are coming from.

The 2012 National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care deals with the well-managed needs principle on page 61 under Practice Guidance Note 11.

Take a look at paragraph 11.1 which states, “This Framework provides that the decision-making rationale should not marginalise a need just because it is successfully managed: well-managed needs are still needs”. Ie don’t exclude or ignore the need as part of the assessment process just because it is being well-managed.

This is good news! What this means in practical terms for you, is that just because the need is well-managed does not necessarily entitle the CCG to play their ‘get-out card’ to decline NHS Continuing Healthcare funding.

But, and this is often overlooked by both families and the CCG, you still have to look at the underlying health needs. You can’t simply trot out this quote and expect the CCG to role over. Read on…

The NHS National Framework also refers to the Decision Support Tool for NHS Continuing Healthcare Amended (Revised 2016) and paragraphs 28 and 29 deal with how this (well-managed needs) principle is applied. The salient paragraphs have been copied below for your convenience.

“28.Needs should not be marginalised because they are successfully managed. Well-managed needs are still needs. Only where the successful management of a healthcare need has permanently reduced or removed an ongoing need will this have a bearing on NHS continuing healthcare eligibility. However, there are different ways of reflecting this principle when completing the DST. For example, where psychological or similar interventions are successfully addressing behavioural issues, consideration should be given as to the present-day need if that support were withdrawn or no longer available and this should be reflected in the Behaviour domain.

29.It is not intended that this principle should be applied in such a way that well-controlled physical health conditions should be recorded as if medication or other routine care or support was not present. For example, where needs are being managed via medication (whether for behaviour or for physical health needs), it may be more appropriate to reflect this in the Drug Therapies and Medication domain. Similarly, where someone’s skin condition is not aggravated by their incontinence because they are receiving good continence care, it would not be appropriate to weight the skin domain as if the continence care was not being provided.”

Critical – and you need to understand this – just because the individual is receiving care and their health needs are being better managed, it does not mean that the underlying need has actually gone away. It is simply just that – ie they are being better managed. The National Framework seems to suggest (although it could perhaps give a clearer example) that only if the needs are reduced or disappear entirely as a result of care intervention can the CCG argue that they have been better managed. The fact the health needs still exist but are better taken care of – has not eradicated the need. It still subsists but is better managed by the care in place.

Take the example provided at Practice Guidance Note paragraph 11.2 of the National Framework where an individual’s challenging behavioural needs might be considerably improved and be better managed (if not eradicated entirely) by changing their environment eg moving them from a hospital setting (where they might feel disorientated or anxious), to a more relaxed environment at a care home or even their own house. That would be an example of a well-managed need.

But, suppose as an alternative example that same individual has hallucinations, displays physical and verbal aggression, is a danger to themselves and others around them, is disorientated and wanders around outside at night time, exhibits inappropriate behaviours (eg smears faeces on themselves and the walls), and generally exhibits other the challenging behaviours – if those behaviours continue to persist in the care home environment, but are better controlled eg by anti-psychotic or other medication, the needs are still there and haven’t gone away; and so whilst they may be well-managed, you cannot ignore the underlying challenging behavioural need which still subsists.

We often hear families saying that their relatives must be eligible for NHS Continuing Healthcare funding because if you take away the 24 hour care package in place, remove medication and other essential needs and don’t feed the individual, they wouldn’t survive. Yes, that is true, but it equally applies to the majority of people in a care home or nursing environment as well. The point is when quoting the “well-managed” needs principle, you cannot ignore basic routine nursing needs either. The individual should still be assessed as if their routine care is still in place, using that as a base-line. It is the management of their underlying health needs over and above the routine that you need to look at and how they are being managed. That is the key.

Otherwise, everyone in a care home or nursing environment would invariably be eligible for free NHS Continuing Healthcare funding, and that is not how it works.

Furthermore, well-managed needs still have to be considered in conjunction with the four key indicators, namely, nature, complexity, unpredictability and intensity of the health needs.

To summarise:

These are the common opposing positions adopted by families and CCGs

Families will argue that just because the CCG say their relative’s needs are well-managed – they are still needs – and so it does not excuse the CCG from paying for their relative’s care home fees as they are still needs.
Conversely, the CCG will argue that as the needs are well-managed, there is no entitlement to free NHS Continuing Healthcare funding (CHC).

Our TIP:

Look at your relative’s underlying health needs first.
Take away routine base-line care required to manage those needs.
Have the underlying needs been reduced or removed entirely by the nursing intervention or is it just a case that they are better controlled?
Even if the underlying needs still subsist regardless, then even though they may well be better -managed, they are still needs – so stand your ground!

Let us know if the CCG have used the “well-managed” needs argument against you, and if so, what you has been your response – and has it changed their mind?

Tagged Categories: CHC eligibility, CHC essentials, CHC funding, NHS Continuing Healthcare

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30 Comments

F.OBrien November 8, 2018 at 6:04 pm

Hi Rita, I should add to my earlier reply today, regarding your statement of having a, previous CCG policy commitment to your 85 individuals the CCG are now attempting to withdraw by reassessment, so they can be moved to cheaper beds. If the new CHC assessment process / procedure including appeals process (together with Ombudsman after that), is being frustrated by the practioners, especially the National Framework "Coordinator", not following the rules & regulations correctly and/or not carrying out their duties owed to you in a "reasonable" period, but causing severe delay to a proper/correct decision, not gathering all the relevant evidence etc. so all the evidence is not considered to keep the desktop study needs assessment LOW (ie. you have a decision but it is wrong and incorrect and you dispute it but resolution is being dragged out frustrating the funding decision, causing financial pressure) this would be an act of "estoppel" (legal case law principle) and breach your legal rights. You have rights to receive from practioners their legal obligation to you, that they perform their work and duty owed to you, correctly and properly with a proper attempt at resolution of your concerns in a reasonable timescale. Not doing that is estoppel. However be warned, your concerns must be in well written documentary evidence and well filed, and you have to write letters, emails, raising those concerns as soon as they become apparent to challenge any practioners decisions. You have rights but you have to fight for them that's the gameplay from the CCG. They hope you give up at your vulnerable time and try to wear you down and not explain anything. You shall require plenty of "needs" evidence for the individuals to establish it's level so it can be compared to case law. A "Specialist" Clinician is the most powerful practioner in that regard, you may have to procure them yourself, the Coordinator probably wont be properly appointed or wont perform correct procedure to manipulate the evidence to deny funding. Your own daily diaries have validity to contribute to the "Needs Assessment" or "DST" if you like, as determination is suppose to be decided in "Totality" (see Coughlan case) of everything required to be done to meet the needs considered in the round together....Quality and Quantity as well (Coughlan)
The NF is available on line and has precis of these cases in Appendices for quick research. That's what the DST is suppose to do, be compliant with case law.
"Continuity" is very important to frail, vulnerable individuals and this should be a major issue for your case. Health bodies have done plenty of research/reports on the importance of maintaining continuity in Care giving. Search online shall give you the research for evidence of this. Think even Royal College of Nursing have completed evidence reports?

F.O'Brien November 8, 2018 at 2:00 pm

Hi. Rita, no reply button on your other 5 Nov 18 post, so replying here. Did you say you have a previous CCG written policy document determining that the 85 individuals "level of need" that shows their condition is high enough, that it would be "wrong & dangerous" to move them? Surely the individuals "level of need" is not going to reduce, but in all likelihood remain stable or increase compared to the already previous high level of need in writing from CCG stating that it is dangerous to move them? Cite Coughlan case in any letters.
The Ombudsman and CHC appeals process (previous to Ombudsman) are what is known as ADR. Alternative Dispute Resolution, the intent of government procedure to mitigate very "expensive" vexatious court proceedings for every CHC decision. This is very costly for both Plaintiff & Defendant in both financial cost & also interestingly, to government legal liability, setting new precedents that could open the door. Main reasons why they exist. From a government chancellor of exchequrer perspective much better to trust decision to a Nurse Assessors of CCG CHC with lack of training, bamboozle vulnerable people and not pay out. The Ombudsman, although the final part of the ADR that the courts do indeed treat seriously, the Ombudsmen in effect, has no legal authority to enforce their decision. Big delay there. Only the court has that, to enforce a court decision to a timetable. So yes the court, would like to see the "process" followed (exhausting possible prior resolutions) before a Judicial Review but if the process itself is being (1) unreasonably delayed or (2) unreasonably administered by not adhering to the standing rules & regulations, then that is wrong-doing causing harm & damage. These are legal matters in themselves before the end of a frustrated unreasonably delayed appeals process because the process (including appeal) decision is being unreasonably delayed & frustrated. You are in a position where the process is so unreasonably delayed and being undertaken with wrong motivations (financial gatekeeping) and not following procedure correctly these are legal breaches and unreasonableness. The NF states financial gatekeeping motivated decisions are wrong-doing as well. (I would expect two months to be reasonable from intial assessment to end of IRP appeal) A "negligence action" has 3 main principles, 1. owed a duty of care (different meaning just means to everyone), 2. breach of that duty, 3. has there been damage from that breach. This is common law.
On a point of law (not the whole case) you also have rights to a "Summary Judgement" case, Judicial Review, for wrong doing actions and/or unreasonable long delay.
The opposition shall take legal concerns with the deadlines alot more seriously than CHC appeals process or Ombudsmen decisions who take their own time doing it without any repercussions to the practioners because they don't have proper accountability.
If you have that previous CCG policy document in writing specifying the CCG stated it would be wrong & dangerous to move them, it appears you have case for a JR straight away. Wording on that document very important for validity of your case though. If nothing else, your strategy should be to delay & frustrate the process by making counterclaims (must be evidence based) as much as possible just like they do to you. This way the decision to move cannot be easily done without further consideration which should delay any decision to move. Court action is not required for that in all instances. You can make counterclaims of evidence and wrongdoing yourself. Written records & evidence in cases must be meticulous and filed really well to keep control of an onerous case, so very important, you must get the evidence file organised, and keep updated contemporaneously.

Rita Brookes November 2, 2018 at 6:28 pm

Hi Chris
Thanks for your reply, our issue involves 85 dementia sufferers so you can imagine we are concentrating, if only this were the case. We have been told by JR lawyers that the JR period begins when the decision you are challenging is "initially made" from that very day.

Chris-G November 5, 2018 at 1:41 am

Rita, the JR decision asked for should in such circumstances, be in relation to the very last refusal to fund. The earlier misbehaviours leading to the last appeal (usually ombudsman) would be part of that argument at JR. i.e. No MDT was formed (single assessor), Only a MDT can complete a DST and make a recommendation etc. If that is ignored at IRP and then Ombudsman then that very early argument made at local appeal, is valid because the Ombudsman has not ruled within the law. It is that failure that is Judged at JR.
As others have already mentioned the courts will not consider JR on strict CHC matters until all appeals have ben undertaken. There has been cases thrown out before they even began because there is an 'appeal process'. Of course if some extraneous law was broken that could not be appealed within the CHC process then that could be J.R'ed. That is why appeals are sooooo long and cumbersome. They want you to go away and not even contemplate JR or higher court actions.

Frank October 29, 2018 at 9:43 am

I must commend the website which is excellent.

Yes, I know the risk of legal action that can be very costly if you do not
know of such risk or legal matters involved. And most do not.
Solicitors can often mislead you and good ones hard to find.

It is always the last resort & only to be attempted when all other avenues
have been investigated and expended. Sometimes the threat alone with a full
file concentrates the mind.

The crux of the matter, you cannot rely and trust the LA and CCG to follow
correct prodeure is my experience, even when challenged. They ignore you.

I didn't make myself clear, I did not mean instigate legal in the first
instance, only if wish for a quick correct decision. There is alot of work
you have to do prior yourself for that route.

Once you understand the National Framework procedure,

(1) gather all the evidence yourself

(2) complete the DST yourself.

(3) understand the case law precedent judgements as that is how the limit
shall be defined legally, there is no prescriptive formula.

(4) Organise and liase with the practioners & attend the DST being aware of
the 28 day timescale, the Practioners are not going to inform you of the 28
days or work to it.

(5) Obtain a DST recommendation in 28 days to final panel, that shall be a
No, it nearly always is.

(6) Then with your "full" case file consider judicial review if you
evaluate the file evidence is robust to challenge the No.
Sometimes the file and legal notice gets a result without court.

The practioners, especially the LA and CCG have their own agenda to follow.
The data shows hardly any DSTs are carried out in the National Framework
government guidelines timescale of 28 days.

In our case 10 months of delay before DST for something that should have
taken one month and also NONE of our concerns about following the standing
rules and regulations were followed either.

In our case, Practioners forced the DST without me, despite our concerns
and failings, which remained unresolved and the evidence file severely
incomplete, I believe, so the "No" recommendation would be recorded.

The correct relevant evidence was not gathered or correct MDT personnel
with relevant credentials & expertise, were constituted either, and also
most disturbingly, incorrect facts were recorded in the DST. Lies to you
and me.

If you do not have the correct recorded evidence or correct clinicians with
relevant "Specialist" credntials involved, the DST just becomes a tick-box
form by a Social Worker and a general young inexperienced Nurse, based on
the sparse evidence. That is what happened to us.

That is the LA and CCG strategy (in our case anyway) as the final panel
decision role is to compare the DST EVIDENCE FILE TO BE COMPLIANT WITH CASE
LAW.

The individuals needs are.....secondary...... to that.

If you were to look back at our DST form together with evidence file, the
level of need evidence records are not recorded there. So if someone
investigated the case much later, then the high level of need cannot be
established from a desktop study of the DST data file and the form has been
completed and signed off by L.A. and CCG inexperienced personnel. It is
deliberately misleading.

My judicial review point was intended to communicate a strategy based on
what you shall nearly always come up against.

Not a must do in all cases.

Every case is different but if yours is complex, which they usually are
then.

Be aware from the start of the following you cannot trust the LA and CCG to
follow correct procedure.

(1) A severe delay shall be instigated by Practioners to the procedure I
believe, to wear people's resolve down and deliberately bamboozle the
procedure.

(2) The correct evidence shall not be gathered and recorded, because there
is a risk of a high level of need being in the evidence that attracts a
cost to the CCG.

(3) A Coordinator (usually a Nurse Assessor from the CCG) shall either not
be appointed properly, or if so, shall not put the family representative at
the "centre of the process", explain the procedure and guide you through it
all either despite what the National Framework says

In our case the Nurse Assessor was deliberately obstructive by,

A. not answering calls, emails, letters,

B. did not perform any updating visits to the house,

C. did resolve any reasonable written concerns,

D. arranged visits to the house by personnel to a very vulnerable sick
person, doubly incontinent and immobile without an appointment,

E. deliberately withheld the evidence file saying not allowed to hand over
the documents despite citing national framework clause 33.1b.

F. when raising concerns about lack of a Coordinator, I met numerous times
with a senior L.A. manager at our home instead, at his behest I might add,
raising this issue & other health matters and procedure issues and I,
issued Meeting Minutes which he ignored. Very misleading.
He was recorded by me as the "acting Coordinator" and was informed that is
the role he had undertaken and shouldnt be. All the actions from the
minutes were accepted in the meeting by the LA manager who sits on the
Final Panel review board resolved non of them. Then a DST was convened
without me without proper written notice or resolving matters raised. etc.
When questioned why this happened he said the CCG has senior authority over
him and that is why he sent a Social Worker to the meeting without
resolving all our queries. The Nuremburg defence.

He did not even understand the role of the "Coordinator" till I informed
him, neither did the CCG Nurse Assessor who had herself recorded in her
letter to us as a MDT decision maker, no Coordinator appointed at all, so
that informs of how procedure is wrongly executed in my area.

I must stress we have held our dignity and been civil with everyone despite
extreme provocation. We would lose our argument if we did not, I understand
that is very important matter to adhere to.

Families need to understand that the LA and CCG shall obstruct National
Framework correct procedure to get the "level of need" decision required as
they are in control of procedure, so do not gather the correct relevant
evidence, and have the power of DISCRETION when performing the protocol and
making a decision.

Unfortunately if you do not understand this, Practioners shall either wear
family down to give up, or cause an unreasonble long delay during a
vulnerable time of life when the help & support is needed urgently or the
individual dies.

Data also shows "retrospective" cases and claims against CCGs because of
the strategy the LA & CCG employ as a common working practice.

The recorded evidence is the key to the door, the LA and CCG fully
understand this.....

If the file has all the correct relevant evidence the LA & CCG find that
more difficult to deal with, so in my view, you have to gather it yourself.

That's why the correct evidence in the file is missing in most cases so a
"No" decision can be awarded and the case closed.

I understand "most" people are not able or have the fortitude to spend time
on a case during a vulnerable time when overloaded caring, skills to
navigate the protocol, case law and Standing Rules & Regulations. Even most
of Practioners do not. So judicial review is not the best advice for
everyone.

I understand what you are saying.

The LRP and IRP processes are slow with another more long lengthy wearing
delay and the file evidence is not recorded properly yet because it is
sparse and incomplete, despite 10 months of going around in circles. Not
much to review.

CCG have tried referring me to their outsourced Complaints company, but I
have just ignored that deliberate distraction strategy, it's a an attempt
again to bamboozle and cause more delay. ie. Wear me down.
No attempt was made to explain the LRP or IRP framework protocol until I
requested. Deliberately referred me to "complaints" without consultation
because that is better obfuscation.

I am still working on our case, the procedure was so distracting it was at
the detriment to the needs I was meeting. I have had a rest from it for a
few weeks.

Great site, keep up the great work.

Chris-G November 5, 2018 at 1:33 am

It has been lawful for some time to instruct your own Barrister. One time I tried that route with someone advertising their CHC credentials and he did not appear to know as much as I did. So in such matters be very careful or it could prove stupidly expensive. But it does avoid the double costs in talking to a solicitor before action is taken.
That potential cost is why in the past we used the council on a recharge basis and simply refused to pay them. Then it is a different matter. They chase for the money year in and year out with our repeated response being 'puleeeese do it' . We of course instruct them that as respondents we are entitled to ensure that the money is not in fact owed by the NHS and as such they will need to be present. Then of course the decision not to continue funding someone that was earlier funded could be compared against many legal precedents including their own precedents from when the were funded.
This is unlikely to work if someone has to self fund the entire sum..... But maybe this will help those that are frustrated beyond caring what happens...… Even then the amounts risked are only those belonging to the patient (which should be held in case that happens), and supposedly owed to the council. But doing this does prevent the need to take them to the courts and the costs of instructing a barrister would be reclaimable if you were successful and chargeable to your loved one if not. If nothing else, it lowers the amount that the council can take from savings and the fight has been fought and perhaps has made some of the anger (even if lost) go away. In both family cases they have never acted via courts to collect the amounts allegedly owed. Very soon they will be out of time to take that action. Fingers crossed.

Rita Brookes November 1, 2018 at 7:34 pm

Hi Frank
Thank you for this excellent and informative reply, I just have one thing I am not sure of, how can someone bring a Judicial Review until they have completed the whole CHC appeal process. Completed it all the way through to the Ombudsman. The judge would insist this was done before court proceedings, this process could take 2 years according to our solicitor, then you are out of time for the JR which has a time limit of 3 months?
Thanks

Frank October 27, 2018 at 8:35 am

It is clear to me, certainly in our case, so long as family & friends have
engaged meeting the Primary Need care work then they are happy to do a
tick-in-box procedure to keep it that way. "Regardless" of the individual
concerned or their Carers needs or health risks. If they get sick because
needs are not managed not bothered. So long as there is a completed DST in
the file to answer any later investigation should it occur. If it did not
include all the relevant evidence or the specialist clinical assessments
that should be conducted for the DST that are relevant, if unchallenged it
shall be deemed a true and correct record much later.

So you know you are not alone, in our case they,

1. did not gather all the relevant evidence,
2. did not engage and gather all the relevant clinical specialist
assessments for the specialist medical conditions presented
3. did not arrange & chair a DST meeting properly with correct attendees
and reasonable notice
4. did not engage and resolve reasonable family concerns on non-compliant
procedure
5. did not did not appoint a distinct separate Coordinator to manage the
above
6. did not disclose the case evidence file to the family even when
repeatedly requested to do so
7. conducted a DST meeting with only a District Nurse & Social Worker as
decision makers who knew next to nothing about the individual having only
spent a couple of hours with them.

The non-compliance to procedure is so grave the only conclusion a
reasonable person can draw is that it was a deliberate tick-in-the box
decision to deny CHC funding and correct clinical help at home.

This is happening all around the country despite National Framework as
government guidelines instigated in 2012. Revision amendment to it due for
publication soon, I hear.

It is the "level of need" that has to be established as the Legal Test. See
Coughlan, Pointon cast law etc.
The DST is only suppose to be government guidelines to gather evidence and
not the lawfull decision in itself. It is only suppose to assist
practioners to gather the corrext relevant evidence in a UK wide coherent
way. Before that each council did it differently.
The DST recommendation goes to the Panel for a Final Decision for this
reason. To make sure the evidence file complies with the case law when
compared to it.
So you can see why they do not gather the evidence or conduct relevant
specialist evidence to that file.

Aquire the evidence yourself and file for a judicial review is the quickest
best way.
LA & NHS CCG cause a long delay deliberately I think by not doing it
properly, even tho suppose to do it properly in 28 days National Framework.
Most people are bamboozled. I know I was at the start a year ago.

Jenny October 26, 2018 at 12:55 pm

Thanks. This is really helpful.
I shall be fascinated to see how the NHS attempt to apply this to my relative's retrospective case where, all too frequently during the relevant period, there was no attempt to manage the needs at all. Either the care wasn't happening, or any documentation of it was inadequate. The Nature of the needs were Non Routine, not least because of their complexity between domains and their Intensity. There are plenty of documented examples of the consequences of non management of needs, and fortunately our own simultaneously recorded evidence, and so the opportunity for them to fall back on "If it's not in the care home notes, it didn't happen" should have limited effect. I hope so anyway!

Chris Gallagher October 17, 2018 at 12:29 am

Given the successful Coughlan argument/conclusion..... That all care provision to someone incapable, is nursing care and that social services cannot really provide any required Registered Nursing care and that the cost of any registered nursing care should reflect the actual cost, then the same would apply to anyone not wishing to go private and to self fund.

A baby is nursed by way of feeding at the very least by it's parent because it cannot yet do it for itself.
What is obvious here is the need for some years of continuity of care in this instance.
If that continuity is withdrawn then the well met needs provided for, at even the most basic level to the baby, prove to be more than needs of so called daily living because the baby would die.

The whole matter of well met needs might be to be looked at in conjunction with the fifth and almost hidden criterion of 'continuity of care' which I believe resides within the intensity criterion.
Then what must be addressed is..... what is intensity?.... Five minutes being slowly shot at in a trench might seem intense...… five months at risk of being shot at whilst preparing to be shot at for five minutes in a trench could equally seen as intense.

Continuity of necessary care over a long period is a display of intensity in meeting what many assessors wrongly view and then disregard as 'needs of daily living' that they ,when challenged, equally dismiss as well met even though there is almost always intensity by virtue of repeated long term provision of necessary care....
Beware the word 'assist'. Doing something for some one might assist them but it is not to assist them to do it. So often used to imply that needs are easy to meet well because the patient helps themselves too, when in fact they are much more complex etc.
Repeated and necessary continuity of care and therefore intense care provision, even if the needs appear 'well met' is still intensity in the provision of that care.

Now repeat with variations, the thoughts above whilst using the other eligibility criteria.

However, just for a laugh, also always ask what the assessors and decision makers have used to compare against the legal tests of a LAs remit to provide care. They will likely make no logical reply...… Most likely they will argue that they have compared needs against the CHC eligibility criteria, which have little or no basis in law at all.
If the standing rules regulations etc. are read, these two tests relating to LAs are in fact the only law regarding eligibility.

Tom Yarwood October 15, 2018 at 5:40 pm

Hi! I have read this fairly quickly, but it is still very unclear to me. I'm not sure anyone understands this issue, in fact.... But if you think you do understand it, can you find a way to explain it more clearly? It seems to me there's a completely absurd problem of defining terms going on -- the NHS is playing Alice-in-Wonderland-style games with language. The entire thing is just a simple problem of logic:

1. All applicants for NHS CHC funding have private funds, otherwise they would just go to social services for help
2. A need is "well-managed" when it is "managed" roughly as well as modern technology, medicine and care methods allow -- that is, as well as money can buy. (Thus someone might be in terrible pain, but if they have all the best painkillers on the market as well as physiotherapy and massage and soothing words from the best carers, then their need is "well-managed")
3. Private funds and NHS CHC funds are able to "manage needs"in this sense equally well -- the colour of my money and the NHS's is the same
4. Therefore all applicants for NHS CHC funding have "well-managed" needs at the time of making their application (unless they're simply not spending enough on care, in which case they should just cough up)

It follows EITHER that the NHS should not give CHC funding to ANYONE, or that the whole question of "well-managed" needs should be dropped, and instead judgments about who to fund should be made based on the relative severity/ extremity of their needs.

Can you explain to me where I've gone wrong here? Big thanks if you can! I had an initial meeting over NHS CHC funding for my mother in which this "well-managed" term was bandied about, and when I tried to explain to the other side that they were being completely illogical, they could neither grasp the point I was making nor explain the principle at stake clearly to me. Tom

F.OBrien October 26, 2018 at 12:11 pm

The determination and quantitification of the "level of need" is at the "discretion" of the Council and the NHS CCG. (See the Local Authority Care Act and the National Framework.) The DST is not suppose to be a tick-box-decision form in itself, but that is how unfortunately, it is used and manipulated. I think it is designed to bamboozle the public. The intention of the DST, (Decision Support Tool) is just that, a tool, and as such only suppose to be a guidence and reference for its practioners to gather all the "relevant" EVIDENCE specific to your case in a nationwide consistent way. Specialist as well if relevant. If the relevant evidence is not gathered and recorded the DST just becomes a tick box form to disregard you and close the case.

If the L.A. and NHS CCG do not gather the correct relevant specialist evidence, they can manipulate answers on the DST form, either by not being correct or by omitting to record evidence, is my experience.

If all the help & support was removed from the individual tomorrow, then that gives the real picture of the individuals needs for a Primary Needs determination for CHC funding. Your legal right.

ie... if friends & family support disappeared tomorrow what would the local authority have to do and what salaried services welfare & health, would have to be legally procured to meet the "Presenting Needs" currently being met by friends & family? National Assistance Act 1948 Section 21 subsection 8 think it was? Still applies.

This power of authority of quantification of "primary need" is unfortunately with the local authority when conducting a Care Act "Needs Assessment" in the FIRST instance as they are usually the first party to conduct an assessment for "presenting needs".
You should challenge all recorded written information on this document, very important you do so. Otherwise council will deem you have eligible needs for care & support to be means tested self funded Social Care only. Eligible Needs here are only Social Care Needs in Care Act not the section 22 Exception for Primary Health Needs to be NHS funded even if you remain at home.

In my area there is no mechanism at all in the local authority "Needs Assessment" to quantify the level of need at all. Not one question. Thus everyone becomes self funded means tested social care in all my authorities assessments. Primary Need is only recognised if the individual is in the back of an ambulance here it seems!

So it is the quantification of level of need by "Relevant Recorded Evidence" you need. Even those needs that currently friends & family are currently meeting. Keeping a diary is a good idea but what you really require is "Specialist" evidence by the specialist clinicians with correct credentials and experience to do so.
As far as I can see the system is made very complex and onerous so that people at a vulnerable time of their lives have to pay for care the state should legally provide till that vulnerable individual has no money left, ie below the 23k net worth means test cap.

My area Local Authority and NHS CCG did not even fundamentally understand the different separate role of the specific "Coordinator" to be separate and different person to the "Decision Makers" who are the LA together with the NHS MDT Multi Disciplinary Team members for a DST procedure to be conducted. We had no Coordinator, a Nurse Assessor was proposed to be the only NHS MDT decision maker together with the Local Authority Social Worker decision maker. We had no Coordinator gathering all the correct relevant evidence for the file, together with the "LA social workers decision makers" and the "MDT clinician specialist decision makers". Quite astonishing.

Trust has to be earned, so my advice is make anyone you deal with earn it before giving anyone your trust.

Care to be Different October 19, 2018 at 2:09 pm

Hi Tom

Hope this helps.

The local authority as well as the NHS has a duty to provide care to those who, as a result of illness or disability, require such care / accommodation, which can include an element of nursing care. The element of nursing care must be no more than incidental or ancillary to the provision of accommodation which the Local Authority (whose primary responsibility is to provide social services), could be expected to provide.

The fact that an individual requires domiciliary specialist support, either in a residential, nursing or EMI unit, does not in itself reflect the need for quality or quantity of health care which qualifies a patient for CHC funding. A primary health need is not about the reason why someone requires care or support, nor is it based on diagnosis, but it is about the overall actual day-to-day care needs taken in their totality.

The National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care 2018 (revised) Section 142-146 suggests:

“142. The decision-making rationale should not marginalise a need just because it is successfully managed: well-managed needs are still needs. Only where the successful management of a healthcare need has permanently reduced or removed an ongoing need, such that the active management of this need is reduced or no longer required, will this have a bearing on NHS Continuing Healthcare eligibility.
143. An example of the application of the well-managed needs principle might occur in the context of the behaviour domain where an individual’s support plan includes support/interventions to manage challenging behaviour, which is successful in that there are no recorded incidents which indicate a risk to themselves, others or property. In this situation, the individual may have needs that are well-managed and if so, these should be recorded and considered in the eligibility decision.

144. In applying the principle of well-managed need, consideration should be given to the fact that specialist care providers may not routinely produce detailed recording of the extent to which a need is managed. It may be necessary to ask the provider to complete a detailed diary over a suitable period to demonstrate the nature and frequency of the needs and interventions, and their effectiveness.
145. Care should be taken when applying this principle. Sometimes needs may appear to be exacerbated because the individual is currently in an inappropriate environment rather than because they require a particular type or level of support – if they move to a different environment and their needs reduce this does not necessarily mean that the need is now ‘well-managed’, the need may actually be reduced or no longer exist.

146. It is not intended that this principle should be applied in such a way that well controlled conditions should be recorded as if medication or other routine care or support was not present (refer to Practice Guidance note 23 for how the well managed needs principle should be applied). The multi-disciplinary team should give due regard to well-controlled conditions when considering the four characteristics of need and making an eligibility recommendation on primary health need”

EXAMPLE

Patient X displays challenging behaviour but this is now well managed within an EMI Unit. We need to consider that X will still at times be resistive to care interventions but not to a degree where this is recorded in care delivery records. The care strategies in place are of a nature which effectively reduces any risk to X or others around him in that he is no longer displaying behaviours to the same extent that he previously did.

If the level of care which is currently provided were to be taken away, it is safe to assume that X’s behaviours potentially would increase and return to their previous state. Similarly, if he was not provided with medications covertly and was not concordant with this, he may relapse and behaviour increase.

X was previously in a residential setting and did not therefore have access over a 24 hour period to the services of a Registered Nurse, specially trained in the care of individuals with mental health-based needs. The move to a facility providing this care has been incidental to stabilising his behaviour and reducing any risks of harm.

It is important therefore to consider X’s needs prior to admission to Nursing Care and look at whether the level of behaviour was such that the nature of his needs at that point combined to create a primary health need. The level of resistance is evidenced to produce a need for placement in a facility registered for providing Dementia Nursing Care but not of a level where emergency interventions were required nor was there evidence of a barrier to care provision to an extent where harm is caused.

In conclusion it would be reasonable to say that X would not have demonstrated a primary health need and as such would not meet the well-manged needs criteria.
The quality of interventions required are not in themselves over and above that which a local authority could legally provide with the assistance of outside organisations eg.GP, District Nurses, SALT, etc. Whilst there may be an element of nursing care in looking after X this is incidental and ancillary to the provision of accommodation which a Local Authority Social Services are under a duty to provide in line with the Care Act 2014.

Kind regards

Care to be Different October 12, 2018 at 9:58 am

Hi Sue - it does sound as though you mother has significant needs which may lead to eligibility for CHC funding but it is difficult to be sure without more information. It may be worth a call to Farley Dwek who provide an initial free advice and work with CHC nurses who may be able to assist you. Kind regards

Sue October 1, 2018 at 8:58 am

My mum cannot do anything for herself. She is bed bound and has to be turned by care staff. She can only move her eyes and mouth. Speech is limited. She is doubly incontinent, has to be fed, offered fluid. She would never say she was hungry or thirsty. She has severe cognitive impairment, has had pressure sores in the past due to bad care, cannot assist in washing, changing etc. Where do you think she sits on the “managed need” argument? We have another DST soon because the first one was a complete sham.

Care to be Different October 10, 2018 at 3:09 pm

Hi Sue - it is hard to say with limited information. I suggest you contact us if you would like some initial free advice on it.Kind Regards

Hannah Hardy September 30, 2018 at 11:42 am

Where in the Care Act 2014 and statute does it say this about "manage Needs" etc?

Jeannette September 25, 2018 at 1:00 pm

This is an excellent evaluation and explanation however, it is difficult to apply and follow this re the revised October 2018 Framework as the page and paragraphs references are different.

Care to be Different September 26, 2018 at 12:35 pm

Correct. The new 2018 NHS National Framework only comes into effect on the 1st October. However, the principles and concepts are virtually identical to the 2012 Framework and equally apply (although we prefer the layout in the 2018 Framework!). So don’t worry. But for further reading and comparison, we suggest you look at the 2018 NHS National Framework – particularly paragraphs 63, 65, 141 to 146, and Practice Guidance Note 23 - which you will find of assistance here. Kind regards

Care to be Different September 25, 2018 at 1:08 pm

Hi Jeanette - thanks for your feedback. Kind regards

Craig September 25, 2018 at 11:33 am

Thanks. A useful summary. What constitutes routine nursing care though and when does that routine care tip over from FNC to CHC ? For example, does prescribing anti-psychotics on a routine and PRN basis, and monitoring for side effects constitute routine FNC or CHC care ?

Care to be Different September 25, 2018 at 1:07 pm

Hi Craig - thanks for your comments. CHC is about having a totality of need over an d above what can be expected to be provided by a Local Authority not just in one area - Medication. It is difficult to say without more detailed information. Regards