Private client: addressing long-term care fees
Lisa Morgan explains how to avoid the financial burden of an incorrect assessment of a patient’s care needs
As our population ages, the need to identify who should pay for long-term care has become a vital issue for private client solicitors. The Office of the Public Guardian's professional deputy standards has stated that the appointed deputy of an individual and delegated staff must know how to access appropriate advice on continuing healthcare (CHC). Moreover, it is the responsibility of executors to maximise the value of the estate. It is therefore crucial to check whether an individual has been properly assessed for CHC and if a retrospective review should be completed.
If an individual’s primary need is healthcare, CHC should be provided for free by the National Health Service (NHS), regardless of the individual’s means or setting of their care. The funded package can be provided in hospital, in a care home or in a person’s own home.
However, when health authorities across England and Wales incorrectly assess individuals’ needs, patients may receive a large financial burden. In extreme cases, individuals are forced to sell their family homes to pay for nursing home costs.
In the case of R v North and East Devon Health Authority, ex p Coughlan  2 WLR 622, the Court of Appeal established the criteria for determining when the NHS is responsible for a person's care. The court ruled that a local authority is only responsible for nursing services if the individual's needs are both incidental or ancillary to the provision of accommodation and of a nature that a social care service provider can be expected to provide.
The court also ruled that the NHS is not solely responsible for all nursing care, but it was accepted that: “where the primary need is a health need, then the responsibility is that of the NHS, even when the individual has been placed in a home by a local authority.”
Following Coughlan, Ombudsman reports have expressed concerns about the process health authorities were adopting to assess CHC funding for long-term care. In response, the Department of Health (DoH) and Welsh Assembly Government issued guidance stating that all NHS bodies must review their eligibility criteria to make it compliant with guidance and the Coughlan judgment, identify cases wrongly assessed and undertake retrospective reviews and provide recompense for those who had wrongly paid for care.
How people are assessed
A National Framework for NHS Continuing Healthcare is now in place with the aim of clarifying who is eligible for CHC. The framework includes a number of assessments, a checklist to screen eligibility, a fast-track assessment for end-of-life care and a comprehensive assessment, the Decision Support Tool (DST).
The main assessment tool, the DST, must be completed by a Multi-Disciplinary Team (MDT), who will assess and record the level of the individual’s needs across 12 care domains, which are sub-divided into levels of need. The DST confirms a clear recommendation of eligibility would be expected when the individual has a priority level of need or when the individual has two more domains recorded as severe. Individuals may also be eligible if they have one domain recorded as severe, together with needs in a number of other domains, or a number of domains with high or moderate needs. In these cases, consideration must be given to the overall interactions between needs and on what the evidence indicates about the nature, complexity, intensity or unpredictability of the individual’s needs.
Unfortunately, in completing the DST, MDTs often fail to identify the correct levels of need across various care domains or the overall interactions between needs. They will base eligibility on factors that should not influence decision-making, for example, the setting of care and the lack of input by specialist NHS staff. These factors, in combination, lead to many incorrect assessments.
There are strict time frames to challenge a decision and if these are missed by professional deputies or executors, they place themselves at risk of complaints and potential professional negligence claims. In England, from the date of the decision letter, there are six months (28 days in Wales) to appeal the assessment and provide full reasoning.
The review process often culminates in a review panel being convened. The family of the individual concerned is invited to attend the panel and express their views. A legal representative can attend review panels with the family in an informal capacity. This involves preparing a detailed submission outlining the full reasoning for appealing the decision, with supporting evidence.
Retrospective reviews can be requested for unassessed periods of care from April 2012 in England. In Wales, it is limited, being only one year from the date of request. Retrospectively, as a department, we have successfully recovered over £200m in wrongly paid care home fees for our clients.
The first step for a solicitor is to check that an individual has been properly assessed, if at all, for NHS CHC, by way of an MDT assessment. When this has been established, the solicitor will proceed to request the individual’s contemporaneous records (GP, care home, social services, hospital and district nursing records). These will be reviewed and compared against any assessments previously undertaken to ensure they are clinically sound and reflect the patient’s known needs at the time. If no assessments have been completed, the records received will be considered against the Framework and DST and the client will be advised on the prospects of successfully claiming NHS CHC.
If there is merit in challenging a negative decision through the appeals process, the solicitor will prepare written submissions to demonstrate the health authority’s decision is unsound by analysing medical evidence and applying it to the criteria. The process is informal and the solicitor can argue the criteria was not applied properly and that the individual concerned does have a primary health need for CHC, based upon the evidence available.
While families can pursue a claim themselves, they may find it an emotive and complicated process. The health authority appeal process is not a legal matter; rather, it is a dispute resolution process and the skills developed by lawyers - analytical, evaluating, interpreting and advocacy is key in being successful. It is also important to help address and hopefully remove the emotive aspect for families which allows them to continue to care for their relative.
Where are we now?
The cost of care is a real concern for many. In February 2023, healthcare analysts LaingBuisson confirmed the cost of care in the UK had risen by almost 10 per cent in the past year to £41,600 per annum for a residential care placement and £56,056 for a nursing home placement. However, a lack of awareness of the funding scheme coupled with guidelines which are often forgotten or applied too restrictively, means more people could be eligible for NHS full funding for their care. Despite an ageing population, NHS England figures show the number of people eligible for funding has dropped by 18 per cent in the last five years.
What you need to know
Challenging NHS CHC is onerous and time consuming. However, Department of Health statistics show that 22 per cent of challenges are successful at local level while 30 per cent have succeeded at NHS England level. This can remove the heavy financial burden for those who find themselves losing family homes, income and sometimes have to pay top-up payments for long term care. Spotting the potential issues with long term care fees for private clients is crucial for wealth management and estate planning.
Lisa Morgan is a partner in the nursing care team at Hugh James Solicitors hughjames.com