Care claims

The question of who pays for care has become increasingly complicated in recent years. The thresholds between different eligibility requirements are often opaque and unpredictable. Disputes can often arise where the primary need is difficult to categorise. Essentially the sources of fundings are threefold:
 
- Patient paying privately
- Local Authority paying means-tested Community Care
- NHS Primary Care Trust paying non-means-tested Continuing Healthcare
 
When a patient needs care a distinction is made between social and nursing care. Local Authorities are obliged to provide social care in certain situations but access to this care is means tested, meaning patients often have to pay a substantial proportion of their own social care until their means run out. The standard of care provided also varies from Local Authority to Local Authority. Often families will have to step in to make up any shortfalls and this can be a very expensive business. The process of assessments for both need and means can be a very unsettling time.
 
If an element of nursing care is required, then the NHS may provide Funded Nursing Care which is separate from the social care element provided by the Local Authority. Often patients require aspects of social and nursing care at the same time, so disputes can arise as to the extent to which each public body is responsible to foot the bill.
 
However, where the primary need for care is health-related, care in a care home or own home setting should be provided entirely by the NHS if the patient is eligible for Continuing Healthcare. This is not means-tested, but depends upon the seriousness of the underlying health condition. The threshold for eligibility is quite high and disputes are not infrequent.
 
When disputes over Continuing Healthcare arise, the PCT encourages patients or their families to pursue the NHS Complaints Procedure. This may lead to several tiers of appeal and view. At the end is a reference to the Health Service Ombudsman who can investigate both procedural and substantive complaints. However, if a patient or their family has a procedural complaint (that is to say a dispute concerning the way in which the NHS criteria has been applied as opposed to the substance of the final decision) it is open to the patient to bypass the NHS Complaints route and apply to the Court for Judicial Review.
 
In Judicial Review, in this particular situation, the Court will be concerned to see that the PCT has applied the eligibility criteria in the right way according to the National Framework for NHS Continuing Healthcare (published in 2009) and its Guidance Notes (published in 2010). If the Court is satisfied that the PCT has not kept to its criteria or has made some other procedural error in its decision-making, then the decision will be quashed, meaning the PCT will have to think again.
 
In times of greater pressure on the public purse, disputes between funding bodies can leave patients and their families in the middle of a battleground not of their own making. It is important in these circumstances to get appropriate advice from a specialist Solicitor and quickly. Awards for Local Authority care can be backdated if challenges are made whereas Continuing Healthcare is the best option for patients if they are eligible.