About Assessment Before the National Framework

This section offers an overview of the changes that took place in continuing care and related fields between April 1996 and October 2007 and the main issues that affected patients being assessed. The final part of this section tells you how to challenge an assessment decision made before October 2007.

This section cannot give a detailed overview of the exact assessment process before the National Framework was introduced in October 2007. This is because there was significant variation in how assessments took place in different Health Authority areas before the National Framework was introduced, as well as frequent changes to the guidelines as to how assessments should take place.

National guidelines and local eligibility criteria

Before the National Framework was introduced in October 2007, there was no single set of eligibility criteria to decide if a patient qualified for continuing care. Instead, the Department of Health published national guidelines to help the various Health Authorities (called Strategic Health Authorities or SHAs from 2002) draw up their own eligibility criteria.

The first set of guidelines was published in 1995 and came into force in April 1996. They were produced in response to the Health Service Commissioner’s 1994 report on the Leeds case in which a seriously brain-damaged man was prematurely discharged from hospital, forcing his wife to pay for his continuing care in a private nursing home. To read full details of the Leeds case and its background, read our factsheet: Key Court & Ombudsman Cases in Continuing Care.

The 1995 guidelines were intended as the first step in defining the boundary between the responsibilities of the NHS and of Local Authority Social Services for continuing care. At the time there were 95 Health Authorities in England. Each of these Health Authorities developed their own eligibility criteria based on their local interpretation of the national guidelines. Here is an extract from the 1995 guidelines – note the words and phrases highlighted in bold:

(The NHS should fund a patient’s continuing care when):

“…the complexity or intensity of their medical, nursing or other care or the need for frequent not easily predictable interventions requires the regular (in the majority of cases might be weekly or more frequent)
supervision of a consultant, specialist nurse or other NHS member of the multidisciplinary team…”

“…who require routinely the use of specialist health care equipment or treatments which
require the supervision of specialist NHS staff…”

“who have a rapidly degenerating or unstable condition which means that they
will require specialist medical or nursing supervision”.

The words and phrases shown in bold are typical examples of the weak wording that caused the guidelines to be interpreted in different ways – and sometimes even taken out of context. For example:

• Phrases such as “other care” highlight the blurred boundary between health care and social care that has caused so many problems in continuing care assessments. In this context, “other care” could be taken to mean other kinds of healthcare than medical or nursing care such as occupational therapy, or other kinds of care that are not healthcare-related, such as help with washing or feeding.
• Some Health Authorities took the term “specialist” to mean “a specialist consultant doctor” only. But other Authorities applied the much broader meaning of “a healthcare professional who is a specialist in their field” (this could include non-clinical staff such as social workers), making their eligibility criteria for continuing care much wider.
• The phrase “…weekly or more frequent” appeared in some Authorities’ criteria as simply “weekly”, making their eligibility criteria much narrower than those of the Authorities who applied the entire phrase “…weekly or more frequent” when assessing their patients.
• Words such as “routinely”, “regular” and “frequent” are vague and subjective – they present a strong risk of varying interpretations, depending on the outlook of the individual who is reading the guidelines.

How a Health Authority interpreted terms like this affected the scope of their eligibility criteria, and therefore their decisions about whether patients qualified for continuing care.

Not surprisingly, the 95 sets of eligibility criteria drawn up by the Health Authorities contained significant variations. This resulted in the much publicized “postcode lottery” where patients in some Health Authority areas were literally hundreds of times more likely to qualify for funding than patients in other areas.

Further to a number of complaints from patients and their families who felt that they had been wrongly denied continuing care funding, the Department of Health issued revised guidelines for determining the eligibility criteria for continuing care funding on several occasions between February 1996 and October 2006. But despite the revisions, a number of prominent court cases over the years demonstrated that either:

• The eligibility criteria being used by some Health Authorities were not lawful, or
• The way that the criteria were applied by some Health Authorities during the assessment process was not lawful.

In February 2006, further to the outcome of the Grogan case, the Department of Health announced the beginning of the consultation process for the National Framework of guidance which had been commissioned by the Minister of Health in December 2004. The Framework was published on 26 June 2007 and became mandatory on 1 October 2007.

For a timeline showing the changes in continuing care guidance, including the dates of key reports and court cases, please read our Factsheet: “History of changes in continuing care legislation”. For more details on important court and Ombudsman cases, please read: “Key Court & Ombudsman Cases in Continuing Care History”.

Contact Cheselden to find out if your case may qualify.

Review and redress

Each time the Department of Health issued amended guidelines, it recommended that Health Authorities review past and existing cases where continuing care funding had been denied, with a view to awarding funding where appropriate and compensating patients and families for costs that they had wrongly paid out.

In February 2003, the Health Services Ombudsman published a report on continuing care funding. The report dealt primarily with the problems caused by over-restrictive local eligibility criteria, but also found that Health Authorities, by then SHAs, had not been reviewing cases as requested. The report criticized the Department of Health for not urging SHAs strongly enough to take action.

As a result, the Department ordered a formal review of cases that had been denied funding, for completion by 31 December 2003. The deadline was extended to 31 March 2004 and later to 30 November 2007.

The review and redress process itself resulted in a number of complaints to the Ombudsman, as some patients and families felt that they had not received enough compensation. In March 2007, the Ombudsman published another report, concluding that although SHAs had taken action and reviewed a large number of cases, the wording of the Department of Health’s review guidance had restricted the amount of money that they could pay back to patients and their families. In particular, there were issues over how interest was calculated.

In response, the Department of Health published revised guidelines to SHAs on the review and redress process. The Department committed to help the SHAs identify compensations that had been significantly underpaid and to enable them to make a second payment to put matters right.

A false deadline for review and redress

The NHS Chief Executive wrote to all SHAs and PCTs in July 2007 advising them to publicly advertise the third and final cut-off date of 30 November 2007 for reviewing continuing care funding cases. The letter indicated that SHAs should conduct no further reviews on eligibility decisions pre-dating April 2004 after 30 November, unless there were exceptional circumstances as to why the case had not come to light before.

This letter makes it more difficult for a patient or their family to request a review of a case pre-dating April 2004. But because the letter is not a piece of legislation, its contents cannot be legally enforced – this is a false deadline. The letter could be seen as deliberate neglect by the NHS of its legal duties to its patients.

So if your case pre-dates April 2004, Cheselden may still be able to help you – contact us without delay to find out. Please be prepared to give a valid reason as to why you have not asked for your case to be reviewed before now.

NB. Please note that it is more difficult for Cheselden to help with cases where six or more years have passed since the original assessment process, if you have not kept records.

Contact Cheselden to find out if your case may qualify.

Health Authorities – Organisational changes from 2002

In 2002 the 95 Health Authorities were re-organised into 28 Strategic Health Authorities (SHAs) and 303 Primary Care Trusts (PCTs). The Department of Health asked the 28 SHAs to re-establish eligibility criteria for continuing care for use by all PCTs in their area. So the 95 sets of criteria were reduced to 28 in 2002.

In 2006, the number of SHAs was reduced to 10 and the number of PCTs to 152. Again, the 10 SHAs were asked to review their criteria, but in light of the forthcoming National Framework, to keep changes to a minimum.

These restructures have made it more difficult for people to know who to contact if they want a continuing care case from 2002-2006 to be reviewed. See the “Challenging an assessment decision made before October 2007″ section for more details.

You can click here to see a list of all PCTs and SHAs in England.

Continuing care and the RNCC

The NHS introduced the Registered Nursing Care Contribution (RNCC) in October 2001. This stopped the Local Authorities being able to provide registered nursing care. Since then, the NHS has funded all registered nursing care. This move put an end to situations where patients in nursing homes were paying for nursing care that would have been free if provided at home or in hospital.

For the purposes of funding registered nursing care for care home residents, the NHS set three bands of funding for RNCC – low, medium and high – and assessed new and existing patients for this funding depending on their needs. The NHS paid care homes a set amount of money per patient per week, depending on which RNCC band the patient was in. Most self-funding patients in care homes who were receiving care from a registered nurse saw a reduction in their care home fees after RNCC was introduced.

But the introduction of RNCC caused problems for some continuing care assessments that were carried out between October 2001 and October 2007:

• Any patient considered as having a possible continuing care need should have been assessed for continuing care first. But in many cases, the RNCC assessment was carried out first and the continuing care assessment never happened – so some patients were wrongly denied fully-funded care.
• The two types of assessment did not always work alongside each other. It was often considered that patients needing the high band of RNCC should automatically qualify for continuing care funding due to the stringent eligibility criteria involved – which were sometimes higher than the local eligibility criteria for continuing care.
• Patients were sometimes caused undue distress by having to undergo multiple assessments for different types of care, which often duplicated the same issues.

When the National Framework was introduced in October 2007, the three rates of RNCC were abolished and replaced with a flat rate for all patients. A patient’s need for NHS-funded Nursing Care is now assessed within the same process as continuing care.

Contact Cheselden to find out if your case may qualify.

How continuing care was assessed between April 1996 and October 2007

The broad principles of qualification for continuing care were the same before October 2007 as they are now. Like the National Framework, the various guidelines published by the Department of Health focused on the nature, intensity, complexity and unpredictability of the patient’s needs and the resulting quality and / or quantity of care that the patient required. But as seen above, the wording of the guidelines was often weak and open to different interpretations.

The main differences in the way that patients were assessed before the National Framework was introduced are:

• An assessment was based on each Health Authority’s local eligibility criteria rather than a single set of national criteria
• A local assessment tool may have been applied which would have varied between Authorities, unlike today’s Checklist Tool and Decision Support Tool
• The format of the assessment and the paperwork used varied by Authority and was not subject to the guidelines laid out in the National Framework that must now be followed by each SHA
• A patient was assessed separately for different types of care rather than a single assessment being used to decide on funding (if any) and to create a care plan
• If a patient was assessed as needing NHS-funded Nursing Care rather than continuing care, their needs were banded as low, medium or high under the Registered Nursing Care Contribution (RNCC) system. The National Framework introduced a single rate of funding for nursing care which replaced the RNCC bandings.

The introduction of the National Framework has addressed many of the issues surrounding continuing care assessments. But the same key problems faced by patients before October 2007 remain:

• The definition of a Primary Health Need
• The boundary between health care and social care, and therefore
• The boundary between the services that the NHS and the Local Authority can be expected to provide and which it is lawful for them to provide
• Equal and fair access to continuing care by dementia sufferers.

If you or a relative were assessed as not needing continuing care funding before October 2007, you can ask to be re-assessed under the National Framework. You may be found to be eligible for funding under the Framework – but this does not guarantee that you will qualify for a reimbursement.

If you feel that you are in this situation and that you or a relative should receive retrospective funding, contact Cheselden so that we can review your case.

Please also contact Cheselden if you feel you have a case for retrospective (or current) funding where you or your relative:

• Are no longer paying for care (so do not require a new assessment under the National Framework) but have wrongly had to pay in the past,
• Paid for care in the past and your relative is now deceased, or
• Are re-assessed under the National Framework and are still not awarded NHS continuing healthcare funding, but believe you are entitled to it.

If you want to look at your SHA’s local eligibility criteria before contacting Cheselden, you can ask your PCT for a copy. Make sure you ask for the criteria that were in force on the date of the original assessment. You can click here to see a list of all PCTs and SHAs in England.

Contact Cheselden to find out if your case may qualify.