Two guides for Community Care Inform Adults aim to provide social workers with a clearer understanding of continuing healthcare. Both guides are written by Morag Duff, an independent specialist continuing healthcare consultant. Inform Adults subscribers can read the full guides:
Below, is an excerpt from the guide to the legal framework around continuing healthcare, on primary health needs.
NHS continuing healthcare can be a challenging area for social workers. It requires an understanding of complex legislation and guidance, and hinges on the boundary between the responsibilities of the NHS and local authority social services. And the implications for service users are huge. If entitled to continuing healthcare, their care is free. If not, they may have to shoulder the cost of care themselves.
What is a primary health need?
The concept of a primary health need is central to deciding whether the entirety of someone’s care needs should be met by the NHS or the local authority. Put simply, an individual has a primary health need if, having taken into account all their health and social care needs, it can be said that the main aspects or majority of the care they require is focused on addressing or preventing health needs (National framework for NHS continuing healthcare and NHS funded nursing care, practice guidance, paragraph 3.5).
The national framework states (practice guidance, 2.1) that a healthcare need is one related to the treatment, control or prevention of a disease, illness, injury or disability, and the care or aftercare of a person with these needs (whether or not the tasks involved have to be carried out by a health professional).
Paragraph 33 of the national framework states that if an individual has a primary health need they are eligible for NHS continuing healthcare and therefore the NHS is responsible for meeting all of that person’s assessed health and social care needs, including accommodation if this is part of the overall need.
The “test” of whether someone has a primary health need emerges from the Coughlan court judgment (R v North & East Devon Health Authority ex parte Coughlan  EWCA Civ 1871), which ruled that nursing care was the responsibility of the NHS under section 3 of the National Health Service Act 1977 (which subsequently became section 3 of the NHS Act 2006). But the court did allow that some nursing care could be provided by local authorities, depending on the outcome of a two-part test.
The test focused on the concepts of the “nature” of the needs (whether they were of a type that a local authority could be expected to provide), and the extent of those needs (whether any health needs were incidental and ancillary to legitimately provided social care needs).
Of course, the question then arises which needs are “of a nature” beyond the local authority’s compass and what is incidental and ancillary to social care needs. The national framework gives four key characteristics of need (nature, intensity, complexity and unpredictability) that are key to finding the answer.