Annex F: Eligibility and Disputes

Annex F: Guidance on responsibilities when a decision on NHS Continuing Healthcare eligibility is awaited or is disputed

1.    This guidance sets out the approach to be taken by the Board, CCGs and local authorities (LAs) in three situations:

a) where there is a need for health or community care services to be provided to an individual during the period in which a decision on eligibility for NHS continuing healthcare is awaited, in a case that does not involve hospital discharge47

b) where the Board or a CCG has unjustifiably taken longer than 28 days to reach a decision on eligibility for NHS continuing healthcare; or

c) where, as a result of an individual disputing an NHS continuing healthcare eligibility decision, the board or a CCG has revised its decision.

a)Where  care  needs to  be  provided  whilst  a  decision  on  NHS  continuing healthcare  is awaited, in a case that does not involve hospital discharge

2.   A person only becomes eligible for NHS continuing healthcare once a decision on eligibility has been made by the Board or a CCG, informed by a completed Decision Support Tool or Fast Track Pathway Tool. Prior to that decision being made, any existing arrangements for the provision and funding of care should continue, unless there is an urgent need for adjustment.

3.   If, at the time of referral for an NHS continuing healthcare assessment, the individual is already receiving an ongoing care package funded by the Board or a CCG, or an LA, or both, those arrangements should continue until the Board or CCG makes its decision on eligibility for NHS continuing healthcare, subject to any urgent adjustments needed to meet the changed needs of the individual. In considering such adjustments, LAs and CCGs/the Board should have regard to the limitations of their statutory powers.

4.    Some health needs fall within the powers of both CCGs/the Board and LAs to meet.

However where:

i)  an LA is providing services during the period in which an NHC continuing healthcare eligibility decision is awaited; and

ii) it is identified that the individual has some health needs that are not within the power of an LA to meet (regardless of the eventual outcome of the NHS continuing healthcare eligibility decision); and

iii) those health needs have to be met before the decision on eligibility is made;

the Board CCG should consider its responsibilities under the NHS 2006 Act  to provide such health services to such extent as it considers necessary to meet all reasonable requirements. The Board or CCG should therefore consider whether the individual’s health needs are such that it would be appropriate to make services available to help meet them

47   The position where an individual is being discharged from hospital is set out in paragraphs 62 – 67 of this Framework in advance of the NHS continuing healthcare eligibility decision.

5.   Where an individual is not already in receipt of an ongoing care package from the LA or CCG/ Board (or both), they may have urgent health or social care needs which need to be met during the period in which the NHS continuing healthcare eligibility decision is awaited, for example because previous private arrangements are no longer sustainable or there were not previously any care needs requiring support. Where there are urgent healthcare needs to be met, these should be assessed by the relevant healthcare professional.

6.    Where the individual appears to be in need of community care services, the LA should assess the individual’s eligibility for these under section 47 of the NHS and Community Care Act 1990 (the 1990 Act), including consideration of whether there is a need to provide services urgently in advance of such assessment, using their powers under section 47(5) of the 1990 Act.

7.   If, in carrying out an assessment, the LA identifies that there may be a need for health services under the 2006 Act, the LA should invite the CCG/the Board to participate in the assessment (see section 47(3) of the 1990 Act). The Board or the CCG should consider and meet its responsibilities under the NHS Act 2006 pending the NHS continuing healthcare eligibility decision, as explained above. The LA and CCG/ the Board should jointly agree actions to be taken in the light of their statutory responsibilities until the outcome  of  the  NHS  continuing  healthcare  decision-making  process  is  known.  No individual should be left without appropriate support because statutory bodies are unable to agree on respective responsibilities.

b) Where the Board or a CCG has unjustifiably taken longer than 28 days to reach a decision on eligibility for NHS continuing healthcare

8.   Decision-making on eligibility for NHS continuing healthcare should, in most cases, take no longer than 28 days from receipt of a completed Checklist (or, where no Checklist is used, other notification of potential eligibility for NHS continuing healthcare).  See paragraph 95 of this Framework.

9.    When

i)  the Board or a CCG makes a decision that a person is eligible for NHS continuing healthcare; and

ii) it has taken more than 28 days to reach this decision; and

iii) an LA or the individual has funded services whilst awaiting the decision;

the Board or the CCG should, having regard to the approaches set out in paragraphs 11 to 13 below, refund directly to the individual or the LA, the costs of the services from day 29 of the period that starts on the date of receipt of a completed Checklist (or where no Checklist is used, other notification of potential eligibility for NHS continuing healthcare), and ends on the date that the decision was made. This period is referred to below as the “period of unreasonable delay”. The refund should be made unless the Board or the CCG can demonstrate that the delay is reasonable as it is due to circumstances beyond the Board’s or the CCG’s control, which could include:

i)  evidence (such as assessments or care records) essential for reaching a decision on eligibility have been requested from a third party and there has been delay in receiving these records from them;

ii) the individual or their representatives have been asked for essential information or evidence or for participation in the process and there has been a delay in receiving a response from them;

iii) there  has  been  a  delay  in  convening  a  multidisciplinary  team  due  to  the  lack  of availability of a non-CCG practitioner whose attendance is key to determining eligibility and it is not practicable for them to give their input by alternative means such as written communication or by telephone.

10. In  all  of  the  above  and  other  circumstances,  the  Board  and  CCGs  should  make  all reasonable efforts to ensure the required information or participation is made available within 28 days. This should include developing protocols with services likely to be regularly involved in NHS continuing healthcare eligibility processes that reflect the need for information or participation within 28 days. Where the Board or CCG commissions the service from which information or participation is regularly required, it may be appropriate to consider placing such expectations within the specification for the relevant service.

11. The Board, CCGs and LAs should be aware of the requirements of the Standing Rules Regulations and Directions to LAs for the Board or a CCG to consult the relevant LA, wherever reasonably practicable, before making a decision on NHS continuing healthcare eligibility  and  for  the  LA,  wherever  reasonably  practicable,  to  provide  advice  and assistance to the Board or to the relevant CCG.

12. Where unreasonable delay has occurred and it is an LA that has funded services during the interim period, the Board or the CCG should refund the LA the costs of the care package that it has incurred during the period of unreasonable delay. The Board or CCG can use its powers under section 256 of the 2006 Act to make such payments. The amount to be refunded to the LA should be based on the gross cost of the services provided. Where an individual has been required to make financial contributions to the LA as a result of an assessment of their resources under the 1990 Act, the above approach should be adopted rather than the Board or the CCG refunding such contributions directly to the individual as the refund of contributions is a matter between the LA and the individual. Where the Board or a CCG makes a gross cost refund, the LA should refund any financial contributions made to it by the individual in the light of the fact that it has been refunded on a gross basis, including interest.

13. Where the Board or a CCG has unreasonably delayed reaching its decision on eligibility for NHS continuing healthcare, and the individual has arranged and paid for services directly during the interim period, the Board or the CCG should make an ex-gratia payment in respect of the period of unreasonable delay.

14. Such payments would need to be made in accordance with the guidance for ex-gratia payments set out in Managing Public Money48.  This sets out (in paragraph 4.12.4) that, where public services organisations have caused injustice or hardship, they should provide remedies that, as far as reasonably possible, restore the wronged party to the position that they would have been in had matters been carried out correctly. This guidance (in Annex

4.14) sets out other issues to be considered and the Board and CCGs should take these into account in reaching their decision.

48 http://www.hm-treasury.gov.uk/psr_mpm_index.htm

c)  Where,  as  a  result  of  an  individual  disputing  an  NHS  continuing  healthcare  eligibility decision, the Board or a CCG has revised its decision

15. When the Board or a CCG has made a decision on NHS continuing healthcare eligibility, that decision remains in effect until the Board or the CCG revises the decision. This Framework sets out that IRPs make recommendations but that these recommendations should be accepted by the Board or a CCG in all but exceptional circumstances. Where the Board or a CCG accepts an IRP recommendation on NHS continuing healthcare eligibility, it is in effect revising its previous decision in the light of that recommendation.

16. Where:

i) an LA has provided community care services to an individual in circumstances where the Board or a CCG has decided that the individual is not eligible for NHS continuing healthcare, and

ii) the individual disputes the decision that they are not eligible for NHS continuing healthcare and the Board’s or the CCG’s decision is later revised (including where the revised decision is as a result of an IRP recommendation),  the Board or the CCG should refund the LA the costs of the care package. This should be based on the gross care package costs that the LA has incurred from the date of the decision that the individual was not eligible for NHS continuing healthcare (or earlier, if that decision was unreasonably delayed – see the previous section) until the date that the revised decision comes into effect. The Board or a CCG can use its powers under section 256 of the 2006 Act to make such payments. Where the LA has collected an assessed charge from the individual, the refund from the Board or the CCG should include interest on that amount so that this can be reimbursed to the individual (see paragraph 16 below)

17. Where the Board or a CCG makes such a refund, the LA should refund any financial contributions made to it by the individual (with interest) in the light of the fact that it has been refunded on this basis.

18. Where:

i) no LA has provided community care services to an individual in circumstances where the Board or a CCG has decided that the individual is not eligible for NHS continuing healthcare, and

ii) the individual has arranged and paid for such services him or herself; and

iii) the individual disputes the decision that they are not eligible for NHS continuing healthcare and the Board’s or a CCG’s decision is later revised (including where the revised decision is as a result of an IRP recommendation), the Board or the CCG should make an ex-gratia payment directly to the individual. When the Board or a CCG has revised its decision, whether as a result of an IRP process or not, this is a recognition that the original decision, or the process leading up to the decision, was incorrect. An ex-gratia payment would be to remedy any injustice or hardship suffered by the individual as a result of the incorrect decision. The Board or a CCG should take into account the Managing Public Money guidance as explained above.

Disputes

19. It is important that the Board/ CCGs and LAs have clear jointly agreed local processes for resolving any disputes that arise between them on the issues covered in this guidance. The Standing Rules Regulations and Directions to LAs require the Board or CCGs and LAs to have an agreed local process for resolving disputes between them on issues relating to eligibility for NHS continuing healthcare and for the NHS elements of joint packages. The Board, CCGs and LAs could extend the remit of their local disputes process to include disputes over refunds. Whatever disputes process is selected, it is important that it should not simply be a forum for further discussion but includes an identified mechanism for final resolution, such as referring the case to another CCG and LA and agreeing to accept their recommendation.

20. Where an individual disputes the Board’s or a CCG’s decision on whether to provide redress to them, or disputes the amount of redress payable, this should be considered by the Board or CCG through the NHS complaints process

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s