‘Primary health need’ made simple – what does it really mean?

Please note: This article was published prior to July 2022, and some information may be outdated.

In NHS Continuing Healthcare assessments you’ve no doubt heard the expression ‘primary health need’

It’s a curious thing – because in other areas of NHS healthcare – e.g. going to see your GP, being admitted to hospital or accessing other kinds of NHS services, the chances are you’ll never hear the words ‘primary health need’.

Why? Because it’s an expression that was included in the first main NHS Continuing Healthcare funding assessment guidelines in 2007 (the National Framework for NHS Continuing Healthcare and NHS funded Nursing Care).

It’s an expression that was created to describe eligibility for NHS Continuing Healthcare funding.

A ‘primary health need’ is a concept, not a legal definition of care or care funding.

Page 7 of the National Framework (October 2018) states:

“Primary health need’ is a concept developed by the Secretary of State for Health to assist in deciding when an individual’s primary need is for healthcare (which is appropriate for the NHS to provide) rather than social care (which the Local Authority may provide under the Care Act 2014).”

So the first point to make here is not to get confused by the terminology. The concept is actually very simple – as we explain here…

Let’s look in more detail at what a ‘primary health need’ actually is

…plus what it means and how it affects you when being assessed for NHS Continuing Healthcare.

The National Framework guidelines were drafted in response to the Coughlan case, a landmark case in NHS Continuing Healthcare law:

In simple terms, there is a dividing ‘line’ between care that the NHS must pay for and care that is the responsibility of a local authority.

When a person’s care is the responsibility of the NHS, that care is free of charge.
When it is the responsibility of a local authority, the person may be means tested.

A ‘primary health need’ is simply a way of describing that a person’s care is on the NHS side of that line.

At this point it’s worth reading about the Coughlan case – because it was the judgment in this case that established the dividing line.

Essentially Pamela Coughlan challenged a decision that her needs were on the local authority side of that line, and successfully argued in the Court of Appeal that the NHS should fund all of her care.

The description of a ‘primary health need’ in the National Framework comes from the Coughlan case:

In a nutshell, a person has a ‘primary health need’ when the nature of their care is beyond that which a local authority can legally provide. Just like in Pamela Coughlan’s case: her care needs were the responsibility of the NHS to fund.

So a local authority cannot take responsibility for care that is on the NHS side of the line. If it does, the local authority will be in an illegal position.

But how do you know which side of that line your care needs fall?

Essentially, by going through the NHS Continuing Healthcare assessment process.

Questions have been raised, however, about the legality of the assessment ‘tools’ and eligibility criteria in Continuing Healthcare guidelines; if Pamela Coughlan were assessed against them, there is some debate about whether she would actually have been found eligible.

This excellent video by Professor Luke Clements explains more.

That said, the assessment process (the Checklist, the full multidisciplinary team (Decision Support Tool) and the Fast Track) are the assessments that people needing care do currently have to go through – and so it’s vital to familiarise yourself with them.

Keep in mind always, though, that any assessment for NHS Continuing Healthcare must be Coughlan compliant. In other words, it must comply with the judgment in the Coughlan case – and take account of that dividing line we mentioned earlier.

The National Framework itself on page 153 confirms that Pamela Coughlan’s needs were of a level that meant she did indeed have a ‘primary health need’:

“In respect of Ms Coughlan, her needs were clearly of a scale beyond the scope of local authority services.”

How does a ‘primary health need’ relate to the Fast Track process?

A person whose condition is rapidly deteriorating and who may be at end of life should be Fast Tracked through the NHS Continuing Healthcare assessment process. Once they’ve been Fast Tracked, they should automatically be deemed to have a ‘primary health need’, as outlined on pages 63- 67 of the National Framework (revised October 2018):

217. “Individuals with a rapidly deteriorating condition that may be entering a terminal phase, may require ‘fast tracking’ for immediate provision of NHS Continuing Healthcare.”

218 .”Therefore, the completed Fast Track Pathway Tool, with clear reasons why the individual fulfils the criteria and which clearly evidences that an individual is both rapidly deteriorating and may be entering terminal phase, is in itself sufficient to establish eligibility.”

In summary, saying that someone has a ‘primary health need’ is the same as saying they are on the NHS side of the funding dividing line – and therefore eligible for full NHS Continuing Healthcare funding.

How to quickly find what you need in the guidelines

Read about the Grogan case

The vital question to ask the social worker

If you’re new to Care To Be Different and to NHS Continuing Healthcare, the links on our Get Started page will help you

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

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35 Comments

Maxwell October 14, 2020 at 4:20 pm

Whilst I note that posts her are few and far between they are nevertheless of great help to some I suspect. Can I offer a positive note and an effective way in my experience of overturning decisions by difficult CCG. Long story short. Family friend was awarded CHC but that decision was reversed by the CCG following a so called "verification". (rules say they cannot do that except in four clearly defined circumstances) This CCG decision was immediately appeal and unbeknown to the CCG I applied for the CCGs "Verification Policy and Process" as an FOI. Got the usual handoff about how good the CCG verification process was. Then hit them with a formal complaint (copy ombudsman) pointing out that they had declared via the FOI that they did not have a verification process. Family friend suddenly received circa £80K and full funding. Whilst I know that there are some good CCG out there always remember that the majority are there not to spend money and thus spin them on the fishing line until you break it. Track all correspondence, forget phone calls and file everything! That how I defeated this particular CCG

Steve October 13, 2020 at 3:13 pm

Hi Paul

Thanks for your reply and apologies for late reply.

It looks like they have agreed 100% funding care, thought it was going to be a struggle to be honest. The reason they have agreed to it is because she meets the requirments to be NHS funded. The only downside is that once she is moved to a nursing home, when her "needs" get less they will then start to look at her finances and start to get her to pay. But I will cross that bridge if and when it happens. I have also got a solicitor involved to take a look at whether we have a case to sue the hospital she was injured at. She only went in for suspected UTI and anemia, but once she was in the ward, had a fall and broke her hip. The result of this is that it looks 99.9% certain she will never be going back home. The operation has really taken it out of her and progressed her illness to a point she is not safe to be left on her own.

I will keep you and this post updated in the future, as it might be help to others in a similar situation. If the CTBD would like to give my email address to Paul, please go ahead.

Thanks

Steve

Why It’s Vital To Get A NHS Continuing Healthcare Assessment October 9, 2020 at 10:48 am

[…] package of free-funded care provided by the NHS that is free at the point of need if you have a ‘primary health need’ and which is not means-tested. Arguably, had her mother been properly assessed at the outset […]

Steve September 14, 2020 at 3:53 pm

Hi, I know its am old post but hoping I will get some advice.

My 86 years old mum has Alzheimers, diagnosed 3 years ago. She was living at home on her own and was self funding for her care that she had twice a day, I am her Power of Attorney for property and finance. My mum took a turn for the worse and was admitted to hospital for a suspected water infection and anemia. We had waited 3 weeks for UTI test results, we had 3 samples done and all came back either spoilt or inconclusive. Once in hospital, they found that she did have a UTI, she was anemic and they also found a small chest infection. They started to treat her for this and I was hoping she was going to be home again within 10 days. Unfortunately after just a few days in hospital, my mum had a fall, they found her on the floor of the ward. She was in lot of pain. They done an x-ray on her spine, this showed no damage. Left her for the weekend, thinking with pain relief the pain would reduce. But on the Monday, when they realised the pain was not going and through further assessment, they decided to do another x-ray, this time on her hip. This showed that my mum had broken her hip, when she had the fall. Up until she was in hospital, my mum had NO falls at home or anywhere else, I checked this with her carers to confirm. On the Wednesday, they operated and she had a hip replacement. Since having the operation (nearly 4 weeks ago now), my mum is unable to walk and her speech has been virtually non existent. Just sounds for words, noises with her tounge and the cry of "mum" virtually all day. Before the operation, she was walking and talking. She was moved to another ward in the hospital that can help her recover, although she has improved a little, she is miles away from being anywhere near how she was prior to the operation. They have today moved he to another hospital for further assessment. I am told this will be funded by the NHS, but I am getting very worried about what happens when they decide she has been assesssed and needs to be moved to either a care home for 24/7 care, or home again for what they have said could be 2 carers 4 times a day. Who will be liable to pay for the further care? Mum owns her house and still has a good income from her pensions. Surely if she has been under NHS care and its through their own negligence that she needed to have an operation, it should be paid for by the NHS. I am right or wrong on this? Is there anyone that can recommend what I should be doing now? Even now after chasing the ward that she had her fall, they are not being responsive in letting me see the report into why or how she fell. Something just doe not seem right to me.

Any help would be very much appreciated.

Thank you

Peter October 27, 2020 at 8:18 am

Good Morning Steve, I have only just seen your post so am behind the power curve. You mention that you are POA for property and finance which is with regard to this event irrelevant. Of much greater importance is are you the POA for health and welfare? If you are then in short order the NHS can do nothing with regard to your mother`s well being without you being fully involved. One would think that as NOK you have power well you do not!! The "law" only requires them to take note of your views whereas as POA they can do nothing about her general arrangement without your agreement.I turn to finance can I suggest that you research Primary Health Care needs in fact this web site has it well laid out. Bottom line is that the State will do all in its power not to pick up the cost of your mother`s care. Finally record/log all contacts with the the NHS and all correspondence by email. If you do make a phone call send a summary email afterwards

good luck and come back if I can help

Paul2 September 16, 2020 at 8:56 pm

Hi Steve,
I have been there with my mother, also with Alzheimer's. She passed away in 2011, after six years in EMI care system having to pay for her own nursing fees! Some 14-years on I am still fighting my mother's case for CHC funding, as she paid for her care home fees. You have a lot to read up on.........
If your mother goes into EMI they will soon find out about her property ownership, and try to avoid at all costs any access to a fair CHC funding process.
You do not sign any "deferred payments scheme" with the LA. You are her financial EPA, so you have control.
The council will put a HM Land Registry property "CHARGE" on, behind your back, even tough you are her EPA, which should be illegal. o when you come to sell her property, the council will automatically seize the fees for her EMI care home.
You must write officially informing the council, that you are in dispute with any paying for EMI care fees, It is nursing care.
That CHC funding disputes are a matter for NHS England to resolve, as written in the National Framework. CHC funding disputes should take 28 days to resolve, Mine has taken over 14 years !
If the council do slap a CHARGE on her property, the lodge complaint with the COP. There should be a formal HM Land Registry process to appeal process against a "CHARGE". I think you may see a "LD" form, but depends of your mother's property has deeds still in paper form or electronic data base.

First of all ensure that Social Services know that you are well equipped about EMI care, especially 24x7 care being free.
That they must apply legislation first , from the "Standing Rules Part 6." That social services CANNOT provide 24x7 care for your mother. Legislation meaning the 1999 Coughlan and Grogan test cases. That social services can no longer go beyond their “legal responsibility of care”. The EMI care system is a complex and well managed nursing care institution( without the hospital geriatric ward naming convention from the 70's)
The following was written in mother's social services care plan; “FREE NURSING CARE” – Only applies to people in 24 hour care”
You mother's safety would be at risk if she continued to remain in her own home, without 24x7 care. So ensure your mother gets admitted into EMI that CHC funding is already granted. Otherwise hold your ground and do not allow your mother to go into EMI care system.

In a nutshell, legislation is reference to the Standing Rules;
“The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012”, This document is available via the URL link; https://www.nhs.uk/choiceintheNHS/Rightsandpledges/Waitingtimes/Documents/nhs-england-and-ccg-regulations.pdf
With reference to Part 6, item 7, on page 14:-
“(7) In deciding whether a person has a primary health need in accordance with paragraph (5)(b), a relevant body must consider whether the nursing or other health services required by that person are—
(a) where that person is, or is to be, accommodated in relevant premises, more than incidental or ancillary to the provision of accommodation which a social services authority is, or would be but for a person’s means, under a duty to provide;
or
(b) of a nature beyond which a social services authority whose primary responsibility is to provide social services could be expected to provide

EMI is NOT ancillary "accommodation". It very specific to their mental incapacity. Violence etc:-
Where an EMI care system is a 24x7, locked down facility specific to the constant needs of chronically mentally ill patients, providing a well-managed nursing care, With over 29 logs and reports being tracked including “Collaborative care” , BADLS and HoNos specific mental capacity care logs. Including “safeguarding” techniques constantly required for unpredictable and violent mental patients. My mother was violent and had already been on the receiving end of violence from fellow EMI patients, and was hospitalised a few times due to injury, This was way above the remit of social services responsibility and their level of care, but that of nursing care. EMI is not a normal accommodation only "residential" care for the elderly. It is specifically setup, managed and controlled for the specific nursing needs of chronically ill mental patients. Ask the EMI care home manager to move you mother down to the normal residents floor, and see what response you get back! Your mother will NOT be a normal elderly residential person.

Maybe best to ask CTBD to share my direct email address as well, for any finer points if you wish.

Richard Saul February 22, 2020 at 1:36 am

Help - my mom has just been assessed for NHS continuing health care. Before assessment, she was moved from a care home to a nursing home and placed in a more secure unit. The care home asked for her to be moved as her actions were causing problems (attempting to bite, hiding in wardrobes, etc...). The assessment determined the actions were frustration at not being able to hear or see very well, although I believe much of it is a mind set that staff are against her. She needs help with bathroom activities, but is generally alert and with it. She is now stuck in this unit, but should be moved to where care and help with medication and bathroom activities exist. I have no idea what type of care this is placed under and no one seems interested in sorting it out - I would be most grateful for any advice

Paul2 February 25, 2020 at 2:50 pm

Hi Richard,
So your mom meets the CHC funding criteria? right.
So maybe the previous care home may not be making sufficient profit I wonder?
I can't tell if your mom was in a normal resident's care floor, but it sounds like she is in an EMI sectioned off floor.
Ids there a pin code access to stop the patients getting out?
My mom was in EMI locked down mental section 24x7, but she did not qualify for CHC funding. Still fighting the case though.
She was violent to others, holding knives at meals times to patients faces, and was also hospitalized twice with male patients pushing her to the ground. She was found in wardrobes too ! The staff have to perform SAFEGURDING skills for violence!!!!

ASK for MCA/DOLS process for your Mom, to deny her rights and freedom if being locked up.
Mental Capacity act.
Mental Care Act (MCA), or sectioned as per Section 117, for her protection and loss of liberty to be locked away within a 24x7 mental unit providing health care, for their own safety and protection from the public.
National Framework quote: PG 9 When is it appropriate to involve an Independent Mental Capacity Advocate (IMCA)? 9.1 An IMCA does not routinely need to be appointed in the context of an NHS Continuing Healthcare assessment. However, NHS bodies and LAs have a duty under the Mental Capacity Act 2005 to instruct and consult an IMCA if an individual lacks capacity in relation to, serious medical treatment or a change of accommodation for a certain period (at least 28 calendar days for a hospital admission or a stay of eight weeks in a care home), and has no family or friends that are available (or appropriate) for consultation on their behalf .

Mom should be getting a full 29 plus care home log reporting , daily, weekly , monthly and annual reviews.Here goes:-
1. Chiropodist visits (records held)
2. Doctors Visits
3. Opticians visits
4. Dental visits
5. Collaborative Care logs <--- Important “Collaborative Care” is Nursing Care
6. Residents Daily Report
7. Residents Daily needs care plan
8. Residents Record File Monthly Evaluation
9. Residents handling Assessment
10. Residents Ongoing Review Form – every 6 months
11. Residents Weight Monitoring ( gain or loss)
12. Dependency Assessment Evaluation ( monthly)
13. Aggression Reports ( Care Monitoring Log)
14. Moving and handling assessment
15. Food monitor Log
16. Nutritional Monthly Evaluation
17. Care Monitor Log
18. Dependency Assessment Waterflow
19. Investigation/Specimen Details
20. Pressure Sore Risk Assessment
21. Daily activity and Recreation Record
22. Authorisation for Administering Flu Vaccination
23. Monitor logs - every morning, afternoon and evening – documenting- food , fluid, catheter chart, bed
turn chart, signed by carer and senior staff.
24. Assisting Clients Each Morning logs (out of bed, assist toilet, wash and dress, dental hygiene,
applying creams prescribed, tidy room and bathroom (and no items to be lying around), among others
25. Toileting Charts
26. Night Checks Record – on every hour, with status is sleeping, incontinent
27. Bath record
28. Observation Charts ( Sheraton Court held these charts for EMI patient’s recording incidents)
29.Including staff training and skill set for “Safeguarding” of mentally ill patients and
30. Administration of medicine regimes
31. Patient “Health of the Nation Outcomes Scales”
Where the HoNOS consists of 12 items which measure behaviour, impairment, symptoms, and social functioning. Required for mentally ill patients.

There is a lot to learn I'm afraid.

Richard November 27, 2019 at 3:20 am

Everybody who has had a hospital admission should be offered a continuing care assessment before discharge

David Gallone July 31, 2019 at 8:21 am

Dear CTBD,
I often feel that commentators and Documentaries on CHC miss the point. The Judges in the court of appeal and there were 3 did not use the Primary Health need test approach this is the incorrect test from the start! Wrong framework guidance and is illegal because it does not follow case law. The judges only commented once about the Primary Health Need and that was if the main reason for care was for health reasons then the care was the full responsibility of the NHS and the secretary of state agreed. The test applied by the judges was the one born out of Section 21(8) of the 1948 Care Act which is to be found replicated exactly in the 2014 Care Act section 22. Legislation has not changed. This is "If a service can be provided by the NHS it cannot be provided by Social Services unless it is merely incidental and ancillary to providing the accommodation and of a nature that you would expect social services to provide. Social services cannot provide registered nursing care except only in an emergency, on a temporary basis and only with the permission of the NHS. Where did this come from that Pam Coughlan had Autonomic Dysreflexia – a life-threatening condition which can result in sudden death? So can a stroke or a heart attack probably the most unpredictable condition of all. There is no mention of this in Pam's own letter where she explains her daily care needs, nor do the judges mention this in the court hearing. This is because CHC eligibility is not based on a clinical condition but on the general condition of the patient and what their daily care needs are required. So if you need a lot of low-level care 24/7 and turning and monitoring and the services of an RGN nurse on a daily basis this will qualify you for CHC because social services are not allowed to provide overnight care, continence care, and such nursing services on a continuous basis. This is nursing, not social services and beyond social services remit.

Paul2 November 15, 2019 at 11:15 pm

Hi David,
Your post about a “lot of low level care 24x7 needs, constitutes for CHC funding. Do you have an example to give this credence without being too specific?
Our parent had a chronic condition of one of their organs.
Medically, their brain was shrinking causing great loss of control, awareness and any understanding of their environment or safety to themselves. This being Alzheimers. One example would be that they would run across the road oblivious to any danger to themselves and others round them. Their social services Fair Access to Care rating was “critical” as they were unable to feed themselves with hygiene reasons being important factor, and had issues going to the toilet with faeces still on her hands. The only solution for such patients and what social services wanted, was to lock them away from society within a 24x7 EMI care system. So the environment is an important factor. They would consistently need looking after when going to the toilet ,with faeces on their hands, carpet and bathroom sink. They would also visit other patient's rooms, use their toilet, and do the same thing to their room. Be found within wardrobes in various patient rooms. If they had not being locked away they would not be any primary health care to maintain.

I maintain that when a patient steps into an EMI 24x7 locked sectioned ward, their main primary health care need is being managed day in day out,to keep them alive and safe, and not be a danger to themselves or others. Imagine if we let these patients free to wander the streets day or night unattended! Possible law suits!

Maureen September 25, 2019 at 1:49 pm

David, this end bit of your post: *So if you need a lot of low-level care 24/7 and turning and monitoring and the services of an RGN nurse on a daily basis this will qualify you for CHC because social services are not allowed to provide overnight care, continence care, and such nursing services on a continuous basis. This is nursing, not social services and beyond social services remit.*

Would you have a source for this please, I want to include it in an appeal for CHC. Thank you.

Kelly June 17, 2019 at 3:56 pm

Hi
My father has recently been assessed for CHC Funding and found to be not eligible. Would you say that someone who having had a massive stroke and has been left sided hemiplegic, unable to sit unaided as his balance is also gone, doubly incontinence, unable to carry out DoL’s by himself including feeding himself also on soft diet. He also has to be turned regularly as he has lost lots of weight and has a high water low score. I myself struggle to see how this is social care, please tell me if this would come under CHC Funding?

phillip wade February 3, 2021 at 12:13 pm

hi kelly we are in the same situation mum doubly incontinent needs help getting in and out of bed and needs turning she has recently been admitted to a care home via hospital following a stroke and the nurse at the hospital said if she was to go home she would need two carers 4 times a day to help her out of bed to clean her and replace her pads etc..been refused chc after the DST assessment this can not be a social care so we are fighting this

Care to be Different June 17, 2019 at 8:38 pm

Hi Kelly - this doesn't sound right at all. Do get in touch with us if you would like to chat it through. Kind regards

Kathy Sawdon April 11, 2019 at 7:57 am

Mum has had review of continuing health care funding
and was thankfully found still eligible.
I found your website and e book invaluable.
It has been a difficult and harrowing process as the funding was refused at first. My advice is not to give up.
Kathy

Care to be Different April 12, 2019 at 10:13 am

Many thanks for your kind words Kathy - so good to hear some positive stories. Kind regards

Simon Cherrill February 26, 2019 at 11:51 am

Hi. Simple question (at least I thought it was); when should someone be assessed for NHS CHC? This isn't a fast track scenario. The checklist was completed with/ for my Mum just before Xmas when I became aware of CHC and at my insistence but she had already been in the care of social and health providers for nearly 3 years after a dementia diagnosis. We are fortunate, she is still at home, but I thought the idea of the National Framework, checklist & DST was to remove the subjectivity of assessment? In our case, health and social care professionals did not consider it 'appropriate' for mum to be assessed. Given no one told us about NHS CHC or that mum had been considered or the criteria used or the decision it seems both secretive and subjective. How can we challenge the appropriateness of the decision not to put mum forward to the formal checklist if we haven't been told anything?

Care to be Different February 26, 2019 at 12:51 pm

Hi Simon - there is no reason at all why a Checklist assessment should not be carried out at any time. Did your Mum pass the Checklist stage? If so then they will need to arrange a full MDT meeting in order to carry out the Decision Support Tool which will recommend whether she is eligible for CHC Funding or not. Do get in touch if you would like to discuss this via enquiries@caretobedifferent.co.uk Kind regards

Tracey Murphy July 4, 2018 at 3:52 pm

My mother was discharge from hospital with end stage life illnesses, mid 2017. Heart failure, heart only working at 20%, 3rd stage kidney failure and most recently diagnosed with severe sleep apnoea now having to wear a mask every night to assist her breathing. She is bed ridden and totally dependent on the care provided. Continuing Healthcare (CHC) are now chasing a review, but have failed to provide me with medical records and questions that they are to refer to in the meeting. All the bodies who are to assess mum have been evasive to say the least with why they need to assess my mother. Whilst it's great my mother is still with us, the pressure of CHC threatening to take away funding is now making her more agitated and stressed than she has ever been. Can anyone advise me on the conditions above and are they classed as primary health care needs?

Paul February 9, 2018 at 11:44 am

My relative was placed ina nursing home from hospital six years ago and thereafter was deemed to be self-funding . We suspect that a Checklist for consideration for a full assessment for nhs continuing care funding was never undertaken and since admission to the nursing home immediately was subject to self-funding which has continued to this date. Does anyone know what the legal position on this is and where can I locate the specific legislation and regulations etc that will address this particular process. My understanding is that the Local Authority should have engaged the process of looking at entitlement to possible NHS Continuing Healthcare Funding before setting up and means testing of her finances and thereafter billing her for her residential care. It appears to me that in the absence of following this process the Local Authority has acted illegally.

Kate Parsons February 8, 2018 at 11:43 am

My husband was fast tracked with NHS Continuing Healthcare (CHC) as he has a brain tumour and on end of life. We were due an assessment from CHC after three months in a nursing home. There was a mixup so a new assessment is due on 26th February.
Any tips for us when we have the meeting or anything we should be aware of that will be beneficial to our case. My husband needs 24 hour caring.

Chris-G February 9, 2018 at 2:07 am

Paul, the fact that it is mentioned in standing rules is still not a definition. As such it is an even greater disingenuity.

Chris-G February 9, 2018 at 2:04 am

Kate, remember that it is needs in close detail that you should concentrate upon. Then examine any input from carers that seems similar to what might be given in a hospital.... Remember, nursing care is limited as far as councils and self funders to what a council could lawfully provide. Registered nursing is not possible at all if the council accepts responsibility. So examine any registered nursing given to date within the home, in close details as to frequency intensity, complexity

Paul Clarke February 2, 2018 at 10:36 am

The National Framework 's statement: "The term 'primary health need' does not appear, nor is defined, in primary legislation, although it is referred to in the Standing Rules..." is disingenuous to the point of being misleading.
It is true that the Standing Rules aren't primary legislation. So what? They are secondary legislation and still form part of the law of the land, and trump departmental guidance like the National Framework (NF). And 'primary health need' is more than just 'referred to' in the Standing Rules as the NF claims.
Section 21 (7) imposes two imperatives and permits no wiggle room. To paraphrase:
Assessors "must" consider whether the healthcare need is more than just incidental to the provision of accommodation or is beyond the normal scope of social services. If either alternative applies, then a primary health need "must" exist.
Once they have weighed the evidence as required by the NF, the assessors must run this test in order to reach their conclusion, or the decision will be unlawful.
As a matter of law the Standing Rules specify when a primary health need exists. A working definition would be: "A primary health need is a healthcare need which is more than just incidental to the provision of accommodation or which is beyond the normal scope of social services."

Tracy Begley January 31, 2018 at 1:56 pm

My mum passed away in April 2016. When her health began to deteriorate we requested an NHS Continuing Healthcare assessment. When the local CCG contacted me to make an appointment for assessment I explained that my mum was at that point end of life and I was told if mum passed away they would carry out a retrospective assessment. It is now almost two years later and the assessment still hasn’t been done. The member of staff at the CCG who made the appointment with me denied making it but fortunately there was written evidence in the form of a diary entry confirming the appointment. To say it is frustrating is an understatement because it seems that the CCG’s are untouchable. I have complained to PALS and also the Parliamentary & Health Service Ombudsman but it seems there is very little they can do.

Chris-G January 31, 2018 at 5:02 pm

Tracy, if end of life was obvious then Fast Track was the course to take and not some nonsense about retrospective assessments. Gather medical evidence if medics recorded anything. Or use care notes and if the same care staff and nurses are still around, it might be worth working out relevant questions and getting them to write their answers. Fast Track is an uncontestable right.... If rapid decline is apparent.

Sara January 31, 2018 at 3:48 pm

Tracy, it sounds as though they should have done Fast Track Assessment...in which case NHS Continuing Healthcare WAS due! Have you tried complaining on that basis?

Chris-G January 31, 2018 at 12:18 pm

Nicely written. I think that many posting with questions will thank you.