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Top-Up Fees – Are They Ever Lawful?

We have been receiving an increased number of enquiries recently regarding top-up fees and whether they are lawful in circumstances where the patient is already receiving NHS Continuing Healthcare Funding.

According to the National Framework for NHS Continuing Healthcare (paragraph 51):

“NHS care is free at the point of delivery. The funding provided by the CCGs in NHS Continuing Healthcare packages should be sufficient to meet the needs identified in the care plan. Therefore it is not permissible to for individuals to be asked to make any payments towards meeting their assessed needs”.

Thus, if your relative is found eligible for Continuing Healthcare funding they shouldn’t be charged any extra top-up fees by the care home – so how do some care homes get away with it?

Top-up fees are usually associated with the additional costs of accommodation. This is a complex area and the answer really depends upon the basis or purpose for which the top-up fees are being charged.  Essentially, you need to establish whether this additional cost (top-up fee) is for the patient’s assessed core healthcare needs or for their social needs or ‘wants’?

In short, referring again to the NHS Framework above, the answer is that top-up fees should not be charged where there is already a package in place for NHS Continuing Healthcare Funding. NHS Healthcare is supposed to be provided free at the point of need. Such top-up fees for the provision of nursing care are therefore unlawful as the cost of additional care should be met by the NHS. For example, if an individual has complex and intense needs that require a number of specialist carers throughout the day to be present (ie as opposed to generic needs) e.g. help with hoisting and mobilisation, medication and feeding ie more time consuming and intense than some other residents – then that is not an adequate and lawful justification to for a care home to impose extra top-up fee charges as the increased charges reflect the clinical needs.  Similarly, the Framework gives an example wherein if an individual with challenges behaviours needs a bigger room as their behaviour is connected to their clinical needs (eg feeling confined), and who may need specialist care intervention, then again it may be unlawful to charge extra fees for the larger accommodation. The extra cost of accommodation is due to their assessed clinical needs and not just because it would be nicer to have a bigger room.

However, those people who wish to supplement the NHS care package to meet their personal preferences can still of course do so, but at their own expense, and provided that they do not replace or conflict with elements of care funded by the NHS. For example, permitted arrangements may include hairdressing, beauty treatments and other spa-type services (manicures etc).

Let’s take a different scenario. Say, the care home provides standard accommodation, but the individual chooses to have a larger than standard room with a better view or private balcony, and enhanced facilities such as a kitchenette, en-suite bathroom etc. (i.e. related state of accommodation, rather than clinical health needs), then it may be lawful for the care home to charge a top-up fee for the additional ‘hotel-style’ facilities/services that extend beyond the person’s assessed care needs – even if NHS Continuing Healthcare Funding is in place. The top-up here doesn’t relate to the assessed healthcare need provided – but for a social care element – perhaps a ‘lifestyle’ choice, often referred to as the ‘luxuries of living’ as opposed to a clinical need for them. In such circumstances the care home can charge for a ‘personal want’ as it is unconnected to their NHS care package.

Therefore, it is important to clarify with the provider what is the basis for the proposed top-up charges.

Tip:

If an individual is already receiving NHS Continuing Healthcare Funding, the care home or nursing home should apply to the CCG to argue that the top-up fees required for this individual are more expensive than the average fees payable due to their various clinical needs, and it is the NHS therefore that should be paying these top up fees, rather than individual. Push for your rights.

If, however, the care is being already funded by the Local Authority, then the care home should ask the Local Authority to pay the for top up fees, not the family.

In the case of a private paying patient who does not have NHS Continuing Healthcare Funding in place, then I’m afraid if you want these hotel-style luxuries then you’ll have to pay for them.

Useful tools:

The Care Act 2014 provides

  • Top up fees should always involve the informed consent of all the parties
  • involve a written agreement and that the arrangement should be revised regularly. (i.e.annually).
  • Top up fees must always be optional, affordable and transparent.
  • They are not intended to cover any shortfall in Local Authority funding.
  • See also the NHS National Framework 2012 (Practice Guidance, paragraph 99)
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The NHS continuing healthcare funding Checklist explained

We have recently had a lot of telephone calls enquiring about the NHS continuing healthcare funding Checklist procedure and what it entails.  Most of our enquiries relating to this topic come from people whose elderly parents are currently in hospital and are about to be discharged to a care home or nursing home environment; or whose parents are currently in care but have never even been assessed for NHS Continuing Healthcare Funding.

The initial Checklist Assessment: is used to help practitioners identify whether your relative may need a full assessment of eligibility for NHS Continuing Healthcare – which is then carried out subsequently by a Multi-Disciplinary Team (MDT).

A Checklist at the initial stage of an Assessment is only a screening tool (with a low threshold for success) and is designed to encourage proportionate assessments of eligibility, so resources can be directed towards those people who are most likely to be eligible for NHS Continuing Healthcare, and to ensure that a sound reasoning is provided for all decisions regarding eligibility.

It is often the case that after a period of treatment in hospital, the NHS will provide your relative with an interim package of further support, which may include rehabilitation.  The National Framework for NHS Continuing Healthcare (“the National Framework”) recommends that where this is the case, any assessment of eligibility for your relative’s Continuing Healthcare Funding should be deferred until the package of support measures has taken effect.  This will allow time to see whether the prognosis improves as this may affect eligibility for funding.

What is it? The Checklist screening tool has 11 care domains broken down to 3 levels A, B or C – where A represents the highest level of care need, and conversely C is a low level of care need.  The outcome of the Checklist depends on the number of A’s, B’s and C’s identified.  The Checklist threshold at this initial assessment has been set intentionally low in order to ensure that all those who require full eligibility get this opportunity.  Therefore if the patient does not trigger to the next stage, then unless the Checklist is flawed, inaccurate or has not been carried out robustly, it is a good indication at this stage that your relative’s health needs are at a low level and to not qualify for funding.

When? You can ask for a Checklist Assessment to be carried out at any time before your relative is discharged from hospital into care, or whilst in the care setting. The initial Checklist Assessment should be performed within 14 days of it being requested, even though these timescales are already met by the NHS.

According to the National Framework, completion of the initial Checklist Assessment is intended to be relatively quick and straightforward, and the NHS National Framework indicates that it is not necessary to provide detailed evidence at this stage.

As above, the initial Checklist Assessment has a deliberately low threshold to try and include as many people as possible who may be entitled to NHS Continuing Healthcare Funding.  Its purpose is not to make any decision about eligibility for free NHS funding, but it is designed to see if the patient triggers get to the next level – ie for a full Assessment by a Multi-Disciplinary Team (MDT). It is at the MDT meeting where ‘recommendations’ are then made to the CCG for NHS Continuing Healthcare Funding. Whether positive recommendations for funded care are then sanctioned by the CCG is entirely another matter (!) and in our experience, can sometimes be rejected arbitrarily by senior heads who have not been directly involved in the assessment process, but who (cynically – our words) have budget constraints to protect.

By Who? The initial Checklist Assessment can be carried out by any healthcare professional e.g. a hospital doctor, GP, District Nurse, Registered Nurse employed by the NHS, other clinicians or other Local Authority Staff, such as Social Workers, Care Managers or Social Care Assistants – but they must be trained and qualified to do the Assessment. It is also expected, so far as possible, that the Assessment will include staff involved in assessing or reviewing patients’ needs to do this as part of their day-to-day work.

Where: Screening for the Initial Checklist should be done at a time and location which is convenient for your relative and when their ongoing needs are known, so that a proper assessment can take place to help practitioners to correctly identify who triggers for the full Multi-Disciplinary Team Assessment.

In the hospital setting, the National Framework provides that, so far as possible, in order to try and achieve the optimum result, the Checklist Assessment (if required) should ideally be completed at a point where the patient’s acute care and treatment has reached the stage where they are ready for safe discharge, their likely longer-term needs are clear, and wider post-discharge needs are also being assessed (Practice Guidance para 18.4). Otherwise, if insufficient time has elapsed and the Checklist Assessment carried out prematurely, it could give an inaccurate portrayal of the patient’s needs longer term needs – as potentially, they could make a further recovery.

If in a care home setting, the Care Home should contact the relevant CCG NHS Continuing Healthcare Team to arrange for a Checklist to be completed however, where a CCG has an agreed protocol in place with a Care Home, then other arrangements for completion of the Checklist may apply.

Notice:

You (and your relative) should be given reasonable notice of the Checklist Assessment taking place and you should usually be given the opportunity to be present when the Checklist is being completed.

In an acute hospital setting or where an urgent decision is needed, notice of maybe a day or two days.

In a community setting, especially where needs are gradually changing over time, more notice maybe appropriate.

The amount of notice given should take into account whether the relative wishes to have someone present to act as an advocate for them or to represent or support them and reasonable notice must be given (Practice Guidance paras 11  & 12). Therefore if you haven’t been given any notice or sufficient notice, you can ask for the Checklist to be deferred so that you can attend and to have your say and to make sure that the process is carried out robustly and fairly.

Often we hear that initial Checklist Assessments are completed without the family even knowing it has been scheduled to take place; or even once it has taken place, the family are not even notified of the outcome until it comes to light (which can be many months or even years later).

Anecdotally, we hear ‘horror’ stories where the patient examination at the Checklist Assessment was so cursory and perfunctory as to be meaningless – unsurprisingly resulting in a negative outcome for the patient; or where family members have turned up for a scheduled Checklist Assessment in plenty of time, only to find out it has already been carried out in advance before they even arrived – usually resulting in a negative outcome and being told that unfortunately, their relative did not qualify for a full assessment – fait accompli!

One of our recent enquirers has even told us that they turned up for an Assessment as arranged, but the person conducting the Checklist didn’t even wish to see their relative who was in the next room.  They said it was not necessary, and despite pleas to examine their relative before completing the initial Checklist, were refused and ignored. This led to an immediate appeal of the process, but in the meantime the patient was forced to continue paying for their care, whilst the process was reviewed. It beggars belief how anyone can assert that they have competently and accurately completed an initial Checklist Assessment without actually seeing the patient in person – frankly quite unbelievable!

This scenario, whilst thankfully uncommon, does point to a general lack of training and understanding, and varying ability, by those carrying out the initial Checklist Assessments on behalf of the CCG’s; and naturally leads to inconsistencies and discrepancies nationwide performing the Checklists. The lack of consistency throughout the country is frustrating for families going through this cumbersome and somewhat daunting process, where so much can rest on an initial Checklist Assessment being properly carried out. Get it wrong at the outset, and it can often lead to perverse outcomes, whereby patients don’t even get past first base and progress to the MDT stage.

Is the initial Checklist Assessment always needed?

There are occasionally exceptional circumstances where it is not necessary to complete an initial Checklist Assessment, such as when this is clear to practitioners that there is no need for NHS Continuing Healthcare at this point in time. For example, if it is simply too premature because the patient has short-term healthcare needs; or perhaps is recovering from a temporary condition and have not yet reached the optimum recovery point; or it has previously been decided that the individual is not eligible for NHS Continuing Healthcare and it is clear that there has been no change in needs. The decisions and reasons for not undertaking an initial Checklist Assessment must be recorded.

Alternatively, the health needs could be of such a nature that they would justify skipping this preliminary stage and taking the matter straight to a full assessment for NHS Continuing Healthcare without doing a Checklist at all.

The most common example is where the patient has a rapidly deteriorating condition and may be entering a terminal phase in which case the patient should be referred to the Fast Track Pathway Tool instead of the Checklist; or the individual receiving a service under Section 117 of the Mental Health Act that are meeting all their assessment needs.

Outcomes: The completed Checklist Assessment does not indicate the likelihood that your relative will be eligible for NHS Funding, but is merely to trigger the next stage as to whether or not a full Multi-Disciplinary Team Assessment ought to take place.

The outcome of the Checklist must be communicated clearly and in writing to your relative, or you as their representative, as soon as possible, with reasons as to why the Checklist outcome was reached.

There are two potential outcomes for the Checklist Assessment:

A negative Checklist outcome – meaning that your relative does not qualify for a full assessment of eligibility by a Multi-Disciplinary Team as they are clearly not eligible for NHS Continuing Healthcare.

If your relative has been “screened out” using the Checklist, you should still be given a copy of the completed Checklist and informed that you t disagree with the decision you may ask the CCG to re-consider this.  Furthermore, if their needs subsequently change, it may, depending on the nature of the changes, be necessary to repeat the process and request a new Checklist be completed.

A positive Checklist outcome – which means that they now trigger for a full assessment for eligibility and the matter should be referred to the next stage, to a Multi-Disciplinary Team Assessment.

Your right: Our advice is, that if you believe that your relative has a health need (or changing need), you should push for an initial Checklist Assessment, and if rejected on unfair grounds, to consider whether the decision can be challenged and the Checklist be re-done.

To find out if you/your relative may qualify for NHS Continuing Healthcare Funding, you can take our free and easy “Two Ticks” Test on our website, which will give you some immediate feedback in literally two ticks as to whether or not they may qualify for free NHS funding https://www.farleydwek.com/two-ticks/ or call us on 0800 011 4136.

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Why should I claim NHS Continuing Healthcare funding?

Here at Farley Dwek Solicitors, we are passionate about NHS Continuing Healthcare funding (NHS CHC). We believe that everyone should understand what NHS CHC is and why they might be entitled to claim it.

So, what is NHS CHC and how and why should you claim it?

There are two types of NHS CHC claims:

  • The first is where a person, who is alive, claims NHS CHC to pay for their care now and for the future.
  • The second is where a person has paid for their care in the past, without applying for or being granted NHS CHC, but has now passed away. In this scenario, their next-of-kin may re-claim the previously paid care fees retrospectively.

Either way, in order to obtain NHS CHC, you must be eligible. (Eligibility is a separate topic and one that is covered in detail on our website and in our Free Guide).

Your right to NHS Continuing Healthcare funding

Your legal right to NHS CHC is enshrined in the National Heath Act 1948. The Act sets out the fundamental points to which healthcare is free at the point of delivery.

Everyone has paid for their free care through their taxes and National Insurance contributions. Therefore, claiming for NHS CHC is a legal right. It is the same as if you went to hospital and you had to have an operation. It should be paid for by the NHS.

So, if you are awarded NHS CHC, you are only claiming your entitlement.

It is not the same scenario as if you were claiming against the NHS for negligence. In this scenario, a judgement has to be made and if the NHS are found at fault then they have to pay damages and legal costs. There is the whole dilemma of who is to blame, is it the doctor at fault, why were mistakes made, etc etc.

This is not a case of blaming someone.

When you claim for NHS CHC, you are claiming back your own money that you have paid into the system. This should have been paid for by the NHS originally. You are simply claiming back what you have wrongly paid.

Continuing Healthcare

NHS CHC protocols

The protocol for claiming NHS CHC is governed by a National Framework, which has its own rules and claims procedures. However, the NHS is constantly in breach of the rules, in terms of delivering the service, so that claims run on without any real enforcing.

A claim that should last no more than 2 years takes 4 or 5 years. This means that the NHS must pay interest on a longer period than necessary, which is a waste of public money. In the meantime, the person making the claim has to finance their care themselves, often causing much aggravation and stress. People often have to sell their homes to pay for their care funding, or their homes are used as a deferred payment to pay for care until the person dies.

The constant delays by the NHS are a disgrace and Government need to grasp this problem and deal with it. There are currently 160,000 people claiming NHS CHC and many thousands more who have wrongly been denied claims.

The protocols must be adhered to. You can’t go to court to enforce the claim.

The Framework and protocols are just not carried out in a fair impartial way. If you complain about the delay, the NHS will often reply “We don’t have the resources, there is only one nurse dealing with it and they are off for 2 weeks leave, you are number 26 in the queue, you’ll just have to wait”.

So, how do you challenge this?

We have written to MP’s, only to receive wishy washy replies along the lines that the NHS has lack of resources in people and cash to deal with the problem.

We suggest that every person claiming NHS CHC should involve their MP, so that everyone in Government is aware how improperly NHS CHC is being dealt with. After all, the NHS has taken the money wrongly and doesn’t want to pay it back to those who have paid it and doesn’t want to agree the Funding for those who can properly claim it.

The constant deliberate delays caused by the NHS means that many people who are claiming die before the claim is settled and many lose their homes to pay for the care.

In most cases where people wrongly take money from others, there is a remedy in either the criminal courts or by litigation to recover it.

What would happen if MP’s came to claim their expenses and were told that there is only one person who deals with expenses and that they only work 3 half days per week and so the MP’s monthly expenses will be paid in 12 months’ time? What an outcry there would be from the MP’s.

Read more about our Free Initial Assessment Service to see if you may be eligible for Continuing Healthcare Funding. Further information on the full assessment can be found on this page and an explanation of our advisory service can be found on this page.
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What is NHS Continuing Healthcare Funding – in a nutshell?

In a nutshell, NHS Continuing Healthcare Funding is funding which is provided by the NHS to pay in full for the long-term care costs of those individuals who meet the criteria for it. It is dependent upon having complex and high level medical and or nursing care needs.

Eligibility is determined by reference to a document called the National Framework. This is an NHS document brought into being in 2012 to standardise the assessment process for determining eligibility. It is a long but well-constructed document and is used throughout England.

The Assessment Process

The assessment process is normally carried out by a multi-disciplinary team of health and social care professionals. The family would usually be invited to attend.

The assessment process can be requested at any time if it is identified as being required. In any event, it should always be completed upon a patient’s discharge from hospital into long term care. The assessment is usually led by a clinical assessor from the Continuing Healthcare department of the local Clinical Commissioning Group (CCG).

The assessment will go through 12 Care Domains covering all aspects of physical, emotional and mental health needs and apply a score for each domain. It is necessary to have an overall high score equating to a totality of need. This should be over and above what a local authority can reasonably be expected to provide.

Continuing Healthcare

It is not however, just about the scores, but also about the interaction of the 4 key indicators/determinants required to manage the needs of that individual:

  • The nature of care
  • The intensity of care
  • The complexity of care
  • And the unpredictability of care

The family will be consulted, and their views sought, and the nurse assessor will conclude with making a recommendation in terms of eligibility before the meeting concludes. The matter will then have to be referred to the CCG for ratification. The decision can sometimes be reversed by the CCG panel, or further clarification sought, before a final decision is made.

Eligibility For Funding

Eligibility for this funding is not determined by reference to the patient’s finances, but purely on health needs alone. Therefore, it is still possible to qualify for it even if the patient could afford to pay for the care themselves.

If you qualify, then the CCG will provide fully funded care, usually without any top-up from the family or the patient. This will be payable by them until the next scheduled review, which will initially be 3 months form the date of the first assessment and annually thereafter.

If funding is denied, this does not necessarily mean that this is the correct decision. We can assist with the determination of eligibility. This can be either prior to the original assessment being carried out, or on prospects of success on appeal after funding has been denied.

We have combined clinical and legal expertise to guide, support and advise you through the process.

Read more about our Free Initial Assessment Service to see if you may be eligible for Continuing Healthcare Funding. Further information on the full assessment can be found on this page and an explanation of our advisory service can be found on this page.
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