Will new continuing care criteria stop funding rows with NHS?

The Coughlan case was meant to be the defining moment in deciding when health or social services pay for continuing care. Yet eight years after the Court of Appeal ruled that Pamela Coughlan was eligible for full NHS funding because her primary need for long-term care was health-based, social services are often still left picking up the tab. Coughlan had been left tetraplegic and doubly incontinent by a car accident.

When it became clear that the judgement wasn’t automatically resulting in fullyfunded care, hundreds started complaining
to health ombudsman Ann Abraham. In 2006-7 she received 352 complaints on this issue (down from 1,000 the year before) and 85% were fully or partially upheld, a much higher proportion than for other types of complaints she investigates.

In December 2004, the government agreed to Abraham’s call for a new national framework for eligibility for funding, but it took
until June 2007 for one to be announced.

The new framework is designed to ensure that eligibility decisions throughout England comply with the Coughlan judgement and
are not subject to regional variation. The government claims that between 5,000 and 10,000 more people will receive fully funded continuing care as a result, bringing the total number of recipients from 31,000 to more than 36,000.

Community care legal expert Luke Clements says, however, that under the framework, Coughlan herself would be ineligible for funding. The Association of Directors of Adult Social Services (Adass) agrees that the framework is unlikely to comply with case law, adding that it could leave more local authorities feeling obliged to fund people who they are not legally supposed
to support. Critics also warn that the framework merely detracts attention from lack of central government funding.

But the guidance is welcome, not least because it provides a chance to examine the relationship between primary care trusts and local authorities. For example, where the NHS refuses to pay for continuing care, social services often have to cover the costs,
either immediately or after the cared-for individual’s resources have been depleted.

Despite this, social services have been reluctant to challenge their health counterparts. If, as has been suggested, the 20,000
people eligible for the highest band of nursing care in 2006 are eligible for the care funded by the NHS, it is reasonable to  suggest that in each English social services area there are, on average, 125 self-funding or local authority-funded residents who should be funded by the NHS. This costs councils on average more than £2.5m each a year.

It’s a curious state of affairs that social services are haemorrhaging this amount of money every year when they could be recouping unnecessary and unlawful expenditure through the retrospective review procedures, while ensuring that the NHS is fulfilling its obligations by challenging clearly flawed decisions.

A small survey carried out by Clements on senior local authority officers indicated there were several reasons for social services’  reticence in challenging PCTs, namely lack of expertise, lack of political will and lack of clear agendas due to the joint workings of social services and PCTs.

Given these mixed agendas and the effective joint funding of key officers, there is obvious potential for conflicting interests. It
is then imperative that senior local authority staff ensure there are clear internal procedures for reviewing questionable NHS
continuing care decisions, and that such procedures are rigorously followed.

Adass vice-president John Dixon agrees that proper procedures should always be adhered to, but insists there is “no evidence
whatsoever to suggest that they not being followed now, or have not been in the past”.

Jeff Jerome, co-chair of Adass’ disabilities committee, adds: “We are well aware of the framework’s areas of uncertainty and will be doing our best to ensure that it is, at the very least, consistently applied across the country; that the public is well informed
regarding its operation; and that, as far as possible, councils avoid funding people who could be beyond the perceived lawful limits of local government responsibility.”

Last November the Local Government Association published Meeting the Challenges Ahead, a report that sought to address an imminent crisis in council funding and cuts in services. It states that government funding for social services is disproportionately low and that business’s contribution to local services has been falling, leaving council taxpayers to pick up the tab.

But the report failed to address the fact that local authorities may be failing their council taxpayers by in effect subsidising the
NHS by funding nursing care which should be met by PCTs.

It appears all agree in principle that, where a local authority owes a duty to its council taxpayers to ensure that its finances are efficiently (and lawfully) used, there is no excuse for not vigorously pursuing cases against the local health authority to recover
money spent on care which should have been paid for by the NHS.

While the Local Government Association has described the social care system as “creaking at the seams”, it has optimistically called on the Treasury to be honest about whether it is prepared to fund long-term care, instead of leaving PCTs and councils to
scrap over budgetary leftovers. Unless funding is increased, social services must take it upon themselves to challenge unlawful PCT decisions and preserve what little they have so they can provide clients with the social care support they need.

Cathy Score and Jenny McCabe are solicitors at Turpin & Miller, Oxford

The new national framework for England, due to come into force in October, is designed to end the postcode lottery by replacing regional criteria with a national system of eligibility.

The guidance emphasises that, when assessing health needs and considering eligibility, multi-agency teams bear in mind that:

Eligibility is based on an individual’s assessed health need, not a particular diagnosis or condition or the use of NHS employed staff to provide care;
NHS Continuing Healthcare can be provided by PCTs in any setting (including an individual’s own home);
Financial issues should not be considered as part of an eligibility decision.

The framework also outlines a four-stage appeal process that people denied continuing care can turn to: a PCT panel, a strategic health authority independent review panel, the Healthcare Commission and the health ombudsman.

➔ See Department of Health

This article appeared in the 2 August issue under the headline “Who pays”

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