When it comes to estate planning and the topic of long-term care funding, there are few issues as misunderstood – or financially consequential – as NHS Continuing Healthcare, otherwise known as CHC.
Despite offering a fully-funded care package for those with significant health needs, CHC remains under-utilised and inconsistently applied, and for private client lawyers, being able to understand the legal risks and procedural flaws in the CHC assessment process is critical to safeguarding the wealth and wellbeing of clients.
Why CHC Matters
As CHC is not means-tested, it can cover the full cost of residential or nursing care for qualifying clients, and can potentially be worth between £40,000 – £100,000 annually. Eligibility is based purely on health needs rather than financial status, applicable across common care settings, such as the client’s own home, residential care homes, or nursing homes.
When a client fails to secure CHC despite having an arguable Primary Health Need and being eligible, there can be severe financial consequences. If an individual owns a property that can be sold to pay for care, they stand to spend virtually all of the proceeds on care home fees, yet CHC funding has the ability to preserve estate value, making it a vital part of estate planning.
The Legal and Procedural Pitfalls
1. Inconsistency in Criteria Application
Despite the National Framework setting national standards for assessing eligibility for CHC, decisions are not always consistent across the Integrated Care Boards (ICBs) due to factors including local interpretation, resource constraints, and variation in assessor training. This so-called ‘postcode lottery’ means that two clients with similar needs could receive different outcomes to their CHC funding application, based on nothing but geography.
2. Rushed Hospital Discharges and Failings in Assessments
As is well documented, UK hospitals are under immense pressure to free up beds, which can result in rushed or incomplete CHC assessments. In many cases, a patient’s assessment will be delayed until after they’ve been discharged, despite evidence that they qualify for the funding. Or, once in the community, ICBs may not pick up on the need to do a CHC assessment. Circumstances like these are where legal advocates acting on behalf of the patient and their families can challenge such decisions, and push to ensure that assessments are carried out properly, and in a timely manner.
3. Industry Misunderstandings
Even among legal professionals, CHC is often misunderstood, with some believing the myths that CHC is only for those already living in nursing homes, or that a dementia diagnosis automatically qualifies someone for funding. In reality, eligibility is based on the severity and the complexity of care needs, and the level of skill required to meet those needs, rather than the diagnosis itself, or whether or not the care is being given by a nurse.
4. Procedural Errors and Documentation
In my experience, many CHC funding rejections stem from incomplete or inaccurate Decision Support Tools (DSTs), a lack of multidisciplinary team input, or even – rather shockingly – the failure to invite a patient’s family members to an assessment meeting. Legal support during this part of the process can increase the chances of success.
Legal Oversight During Appeal Process
If an application for CHC funding is wrongly denied, then families have a limited six month window to put in a request for a local review, and a further six months in which they can appeal their case to NHS England. It’s imperative for advisors to be aware of these rights, and to ensure that families get frank advice about the merits of an appeal. I strongly believe that professional representation during this period can increase chances of success, by ensuring that the appeal is presented and argued in the best possible manner.
Lawyers can help clients by:
- Requesting and scrutinising DST’s and assessment records
- Identifying any breaches within the National Framework
- Collecting detailed medical and care evidence that may have been overlooked initially
- Representing clients in person during local reviews and NHS England appeals
The Role of Private Client Lawyers in CHC funding
Many private client solicitors are uniquely positioned to detect CHC issues early, especially those with specialist backgrounds in elder law or care funding who are familiar enough with CHC to spot relevant issues. However, those without this background may overlook crucial opportunities to preserve their clients wealth.
Solicitors should
- Flag potential CHC eligibility during estate and care planning
- Partner with CHC specialists for unique or complex cases
- Educate their clients and financial advisors on the significance of CHC Funding
- Encourage timely applications and professional representation
Conclusion
The current CHC system is undeniably under much scrutiny, with many (myself included) believing that the ‘Primary Health Need’ test is too often applied in an overly subjective and inconsistent manner. There are strong arguments calling for clearer eligibility criteria, standardised assessor training, and independent oversight, but until reform begins to materialise, advice from an experienced CHC professional remains essential in ensuring fair access to much needed funding.
James Urquhart Burton is Head of Continuing Healthcare Claims at Winston Solicitors
