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14th June 2018

The new National Framework for NHS Continuing Healthcare & NHS-funded Nursing Care – What’s changing?

NHS Continuing Healthcare means a package of continuing care provided outside of hospital, arranged and funded solely by the NHS. “Continuing Care” means care provided over an extended period of time to a person aged 18 or above, to meet physical or mental health needs which have arisen as a result of disability, accident or illness.

If an individual is assessed as being eligible for NHS CHC funding (i.e. they are an individual with a primary healthcare need), then the NHS will have responsibility to pay for the entire package of care, including functions which may ordinarily be regarded as “social care functions”. 

Other types of funding include NHS Funded Nursing Care, where the NHS is responsible for funding the costs of nursing provided by a registered nurse in a nursing home/care home registered to provide nursing. The current standard payment in England from April 2018 is £158.16 per week.

When Clinical Commissioning Groups (CCG’s) assess whether an individual is eligible for NHS Continuing Healthcare (CHC) funding, they must have regard to the National Framework.  On 1st October 2018, this framework will be changing.

The layout and wording of the new National Framework is considered to be more user friendly, with a number of key issues referred to previously in the Practice Guidance, now incorporated into the Framework itself. The Practice Guidance includes questions that can usefully be asked at the assessment stage, to assist in determining the four characteristics of the individual’s needs (namely nature, complexity, unpredictability, intensity). However, importantly, none of the 2018 amendments to the National Framework or accompanying tools and guidance are intended to change the eligibility criteria for CHC. Nevertheless, there will be a number of other changes, which CCG’s, Local Authorities, practitioners and families will need to familiarise themselves with, which will impact on local NHS Continuing Healthcare protocols.

The new Framework is intended to provide greater clarity in relation to applying the eligibility criteria for care. It will also reflect changes in legislation, particularly in respect of the Care Act 2014.

Here are a summary of the main changes to expect:

  • To reflect the implementation of the Care Act 2014, the new Framework makes it clear that the eligibility criteria must be applied to everyone equally, regardless of where they receive their care. This removes the opportunity for interpreting the criteria differently for people who receive care at home, which is welcome news for patients whose needs can be met in their own home.
  • The definition of “a social care need” has been made clearer, which should therefore make it easier to make the important distinction between health and social care needs.
  • The new Framework sets out that the majority of NHS CHC assessments should take place outside of acute hospital settings. This will support accurate assessments of need and reduce unnecessary stays in hospital. Further, guidance is provided about the circumstances in which individuals do not need to be screened for CHC, in an effort to reduce unnecessary assessments.
  • Guidance on CHC reviews has been significantly improved, clarifying that the main purpose of three and twelve month reviews, is to review the appropriateness of the care package, rather than reassess eligibility. This should reduce unnecessary re-assessments. Eligibility should only be reviewed if the CCG can demonstrate that the needs have substantially changed.
  • The Framework introduces new principles for CCG's regarding the local resolution process, for situations where individuals request a review of an eligibility decision. The aim is to resolve such situations earlier and more consistently. The new National Framework sets out further detail about what local resolution procedures should include, by way of a two-stage process; an informal discussion followed by a formal meeting if this is required. The aim is for the individual to understand the reasoning behind a CCG’s decision even if the original decision is not overturned.
  • Clearer guidance, including dedicated sections, on  the roles of CCG’s and local authorities, NHS-funded Nursing Care, inter-agency disputes, well-managed needs, and the Fast Track Pathway Tool have been introduced.
  • There is more detailed guidance on patients who wish to pay for additional private care, known as “top-ups”. The new Framework makes it clear that it is the responsibility of CCG’s to meet assessed health and wellbeing needs in full.
  • The National Framework states that CCG’s and local authorities should ensure that all staff involved in CHC assessments are trained in the principles of the Mental Capacity Act 2005 (MCA). More guidance is included about the application of the MCA at different stages in the assessment process.
It is hoped that the new National Framework will reduce the number of classic procedural errors by the Multi Disciplinary Team (MDT) and/or CCG, which some families may experience during the assessment process of a patient under the present Framework. It will be interesting to see the reaction of those working in this area to the actual implementation of the new Framework in practice, once it comes into force in October 2018.

How we can help

Tiffany Wiggett is an Associate Solicitor in Hewitsons Private Wealth team and specialises in contentious issues arising in respect of our elderly and vulnerable clients.

Tiffany can advise on a range of issues relating to NHS Continuing Healthcare, both under the current and future framework, including reviewing and advising upon the merits of challenging CHC funding decisions.

If you have any questions on this article or Continuing Healthcare generally, please contact Tiffany Wiggett by email at tiffanywiggett@hewitsons.com, or by telephone on 01604 463340.
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