Should the NHS pay for care during an appeal? – Part 1

We’re often asked who should pay for care when the NHS has refused to provide Continuing Care funding and the family is going through an appeal.

It can help to have some key points to argue if you’re in this position and your relative is told to start paying care fees. The information we’ve included here has already helped families avoid paying for care through appeal – and it may help you too.

Once the NHS has made a decision that the person needing care is ‘ineligible’ for Continuing Care funding, the assessors will say that the person must now start paying care fees.

However, many people find this highly questionable – especially as the original funding assessment will often have been done without full regard to Dept of Health guidelines and it will often have involved maladministration on the part of the NHS.

However, if you suggest to the NHS that it should pay for care while you appeal their decision, you may be asked to show the assessors exactly where in the National Framework for NHS Continuing Healthcare it states that they should. (The National Framework is the document that outlines the formal Dept of Health guidelines governing Continuing Care assessments.)

However, the answer won’t be found in the National Framework in isolation; the NHS’s responsibility for continuing to pay for care during an appeal is supported by a principle that is actually far more powerful than any single clause in the National Framework.

The principle of continued NHS funding is supported in the law that covers free nursing care and free healthcare in the UK. Indeed, legal opinion from the well-known Coughlan case suggests that the National Framework itself is seriously flawed, if not illegal, because it does not match the principle of free healthcare available to all.

It’s not surprising that health and social care employees ask the question about the National Framework though. Many people working in health and social care and involved in Continuing Care assessments and reviews are not familiar with the law and the legal framework in which they operate. Some are not even familiar with the National Framework, or with the Practice Guidance for Continuing Care. Feedback from families suggests that many assessors do not look beyond the ‘tick list’ approach of current Continuing Care assessments and clauses in the National Framework – if they even look that far.

The National Framework and the whole assessment paraphernalia surround Continuing Care would appear to be financially motivated, and yet budgetary concerns should never be a part of any decision about Continuing Care funding.

In addition, nowhere do the Continuing Care guidelines – or the law – give the NHS permission to force someone to pay for care when a funding decision is unsafe, and then make them fight to get the money back retrospectively.

Nor do the guidelines state that you have to start paying for healthcare before a proper decision has even been made – and by proper we mean where everything is thorough and above board, and has been done entirely in accordance with the guidelines.

Being asked to pay before this has happened goes against all principles of state healthcare provision in the UK.

The only way it can be decided who should pay for care at any given time is for the proper and full Continuing Care assessment process to have been carried out.

Any assessment carried out without full adherence to the guidelines – which means not following the proper process in all respects and/or not taking into account all health needs and risks, including those likely to emerge or worsen in the coming months – is neither a proper nor a full Continuing Care assessment, and does not form any safe basis for a decision about funding.

It is therefore inappropriate for the NHS to tell you to pay for care before this process has been properly followed. They cannot possibly find your relative ‘ineligible’ without doing this.

In part 2 we’ll look at some additional things to do when you’re faced with this situation.

Applying for Continuing Care? Explore our helpful step-by-step guide.