When community care minister Stephen Ladyman promised to produce a
national framework for assessing funding for continuing care, he
said it would not “constitute a break from past practice” and that
current criteria “are fair and legal”.
But according to health ombudsman Ann Abraham and many on the
front line there has to be a break from past practice and there
needs to be legal clarification of the different systems of
assessment for care.
Abraham’s December 2004 report on the issue found there was
confusion about the distinction between continuing care, a care
package fully funded by the NHS for people whose primary needs are
health-related, and free nursing care, which only covers nursing
Currently, many people with significant health needs are being
given the highest band of registered nursing care contribution
(RNCC), rather than continuing care.
In the case of someone in a nursing home, this would be around
£125 per week and the rest of the charges – up to as much as
£600-700 a week – would have to be made up by the individual
or by means-tested social services payments. It is this distinction
that is being challenged.
Head of the ombudsman’s continuing care team Colin Houghton says
legal advice given to the ombudsman about the way eligibility
criteria are being used has been passed to the Department of
The DoH says it has promised to meet Houghton and his team to
discuss their concerns.
He says: “We are concerned about the RNCC. We have had counsel’s
advice that it is very difficult to distinguish between the
eligibility criteria, but we haven’t gone as far as to say it is
unlawful to [only] give high band.”
Houghton last month wrote to the DoH about the “huge confusion”
surrounding free nursing. He says: “There really is a case that if
you qualify for high band, you should get [continuing] care…
However, we have not gone as far as saying everyone having
high-band should have full-funding.”
Houghton suggests the new framework might only work if the high
band is scrapped. “In a new national framework, if they want to
keep free nursing, a solution may be they might keep the low and
Age Concern has also made the same point in its submission to the
health select committee, which started its inquiry on continuing
care funding this week. The charity’s care finance policy adviser
Pauline Thompson says: “It is confusing nursing care guidance –
they set the highest nursing bands at a level that is [equivalent
to] continuing care. What we are saying is that the whole of the
nursing criteria need to be sorted at the same time. They have got
to pull nursing criteria into the Coughlan judgement (see below) –
that is, when the primary needs are health needs, the NHS will fund
But in terms of what the national framework might look like,
nobody is clear what the DoH intends to do. Houghton says: “Within
the national framework, we are looking for a single set of national
eligibility criteria. What we are looking for is something that is
robust, transparent and open.”
Thompson says: “If you have a national framework, there has to
be one assessment tool. When you do the assessment, you should
screen people in and not screen people out. It does open up the
debate about how daft this whole divide between health and social
Help The Aged public affairs officer Kate Joplin says: “The big
thing is clarity and transparency, so someone can read the guidance
themselves, and making easier the process for initial assessment
and what happens if your situation changes.
“National eligibility criteria are what we are looking for. It
needs to link with the single assessment process and RNCC. Also we
don’t think this whole issue is separate from the whole issue of
She claims that everyone recognises the system would be simpler
if there wasn’t the issue of paying for personal care.
“Ultimately, the government is going to have to tackle this. The
whole thing is an absolute quagmire but there is a long-term
solution, which is to get rid of the different systems,” she
The NHS Confederation, which represents the NHS organisations
that carry out assessments, has called for linking any new
assessment framework with existing assessments.
In its evidence to the select committee, it calls for assessment
for continuing care to be linked to the single assessment process
It says that for patients under 65, the “multi-disciplinary
assessment afforded by SAP is still the most pragmatic and suitable
assessment tool available”. It says new assessment systems should
not be necessary where that linkage is in place.
The confederation’s evidence highlights the problem of how
continuing care eligibility criteria can be applied to different
client groups, to ensure both equality of access and care packages
that reflect users’ needs.
But the ombudsman’s office is concerned the government will not
go far enough as it has said it will only build on strategic health
authorities’ reassessments of past claims and their reviews of
eligibility criteria, triggered by Abraham’s 2003 report.
Houghton says: “[Ladyman] said this does not represent a break
from the past, but we do want a break from past practice. We want a
new national framework. We can’t just forget about all the [review]
According to a government statement last September, about a
fifth of cases reviewed were eligible for full funding at a cost to
the NHS of about £180m. That cost may now rise significantly
if many more cases are eligible as a result of referral back to
strategic health authorities by the ombudsman. There is a lot
riding on what happens to the funding of continuing care, and it is
not just financial considerations.
As health select committee chair David Hinchliffe says of its
inquiry: “It brings into sharp focus the whole question of the way
health and social care interact.”
History of funding eligibility
- 1996: Written criteria are first used in assessing funding for
- 1999: The Coughlan judgement rules that the NHS is responsible
for paying for the care of patients whose needs were primarily
- 2001: Department of Health issues guidance on continuing care
- August 2002: DoH asks SHAs to bring all former health authority
criteria for eligibility into a single set.
- February 2003: Health ombudsman Ann Abraham publishes a report
highlighting problems across England for people trying to secure
funding for continuing care, and calls for re-assessment of
- April 2003: DoH issues a suggested procedure for carrying out
the retrospective reviews by December 2003. This is later revised
to March 2004.
- December 2004: Ombudsman publishes a follow-up report on NHS
funding for long-term care. It says not all claims have yet been
reviewed and calls for national eligibility criteria. Days prior to
publication, health minister Stephen Ladyman says a national
approach will be commissioned.
- March 2005: Ombudsman says huge number of cases still waiting
to be finished.