NHS Continuing Healthcare Funding – Don’t take ’No’ for an answer. If you believe you are right, fight on!

Here’s an example where determination in the face of adversity has paid dividends for a client who was wrongly being denied her proper entitlement to NHS Continuing Healthcare Funding (CHC).

CHC is a free package of care provided by the NHS for care fees, accommodation and social care costs. It is provided to adults 18 and over, regardless of the setting where the care takes place (eg your own home, a care home or other care facility, or hospice) and is paid regardless of wealth (ie it is not means-tested). Wealth is never a consideration.

Case Study:

Farley Dwek Solicitors represented the family of the late Mrs Thompson (not her real name – to preserve anonymity), and after a lengthy 7 year battle, have recently  received confirmation that the care fees paid to her care home will now be refunded with interest dating back to 2006.

The case study below illustrates just how important it is to be tenacious in pursuit of CHC funding and that, with such tenacity, success is possible; even in instances where the Clinical Commissioning Group (CCG) has attempted to rebuff an early request for review and deprive families of much needed CHC funding for their elderly relative in care.

Remember: The overriding principle is that CHC funding is ‘free at the point of need’, and so, every individual who is entitled to it, should be properly assessed and receive an appropriate care package to meet their health and social care needs. However, as you will read below, the process is not straightforward, and if you don’t understand its complexities, you could be losing out!

The retrospective claim process started in 2012 when Farley Dwek Solicitors were instructed by Mrs Thompson’s family to look into recovering historic care home fees (paid between 2004 to 2011) which they thought had been wrongly paid and which should, in fact, have been paid for in full by her local CCG.

Registration deadline for previous unassessed periods of claim (or ‘PUPoC’):

Under Department of Health deadlines, families could retrospectively claim for repayment of care fees paid in relation to any previously unassessed periods of care (PUPoC), going as far back as 1st April 2004 to 31st March 2012, provided that they had lodged a claim with the CCG before the deadline of 30th September 2012.

We first wrote to the CCG in August 2012 (ie before the deadline), notifying them of Mrs Thompson’s early intention to pursue a retrospective claim to recover care home fees she had already paid.

The CCG responded in September 2012, advising that they would investigate matters in 3 stages and would:

• collate data and evidence;
• look at whether there was eligibility during the enquiry period; and
• conduct a reassessment, if necessary.

Note: It is the individual’s responsibility to prove their claim for CHC eligibility by providing detailed information about their needs and, if possible, supporting evidence in the form of care and medical records.

At the time, the CCG anticipated the matter would take 12 months to complete their investigation. A gross underestimation – as you will find out below!

Chronology:

The CCG sent out a standard Information Request Form, which was duly completed with the family’s input and returned to the CCG in July 2013.

In August 2013, the CCG advised that it was transferring the case to a centralised service run by a Commissioning Support Unit (CSU). The premise was that the process would be more streamlined and efficient, given the high volume of similar retrospective claims that it was investigating, following the imposed September 2012 deadline.

In November 2013, the CSU confirmed that they had undertaken their screening Checklist assessment which indicated that a full assessment should be undertaken. This Checklist was completed using the information on the application form and at this time none of Mrs Thompson’s care or medical records had been considered.

The CSU set about obtaining all relevant care and medical records. No timescales were given for completion of the review.

In December 2014, the CSU allocated the matter to a nurse assessor to review.

A Needs Portrayal Document (NPD) comprising of some 30 pages was served on Farley Dwek in February 2015, requiring any comments in reply to be served by mid-March 2015. The CCG had notice of this claim for over 30 months, but unreasonably, gave just 3 weeks to reply to their extensive NPD!

Farley Dwek drafted Written Submissions in reply with the family’s input, and submitted the document in time to meet the CSU’s arbitrary deadline.

The matter went to the CSU’s Multi-Disciplinary Panel (MDT) for consideration in April 2015, and eventually, we were notified of the outcome in November 2015. Until then, we were unaware that the Panel refused to assess Mrs Thompson’s eligibility for CHC retrospectively, because they were satisfied that:

1. Mrs Thompson’s eligibility for CHC funding had already been considered on several occasions during the requested review period (between 2008 and 2011); the outcome of those assessments was that she was not eligible for CHC funding.

2. The contemporaneous assessments and reviews conducted by the CCG during Mrs Thompson’s lifetime were robust and correct. She was not eligible for CHC funding at any time.

3. The September 2012 PUPoC deadline was intended to offer individuals in receipt of care between April 2004 and March 2012 who had never been considered for CHC funding, and may consequently have been funding their own care incorrectly, the opportunity for retrospective assessment.

4. As Mrs Thompson had been assessed for part of the requested review period – i.e. from 2008 onwards (albeit not the full period going back to 2004) – that was sufficient to conclude that her eligibility for CHC had been fairly considered at the time. As the PUPoC deadline only applied to unassessed periods of care, it was beyond the CSU’s remit to consider the case further.

5. In the circumstances, Mrs Thompson wasn’t entitled to a retrospective review.

6. The claim was rightly dismissed.

7. Furthermore, the family was now out of time to appeal [6 months from the date of the outcome letter] the outcome of any assessment conducted since 2008.

Outrageous! Effectively, the CSU had done all this work, led our clients down a merry path for 3 years, convened an MDT, only to conclude that because Mrs Thompson’s needs had previously been partially assessed during her lifetime, they could reject the matter out-of-hand – irrespective of whether those earlier assessments were procedurally and clinically sound. And, in any event, the CSU claimed that the family were out of time for appealing any past periods of care that had been assessed (where Mrs Thompson was found ineligible for CHC funding).

Although the PUPoC process is only intended to apply to previously unassessed periods of care registered before the deadline, there are circumstances where a patient or their family can retrospectively challenge the outcome of assessments already undertaken [i.e. outside the usual strict 6-month appeal deadline], where:

1. The CCG is unable to provide evidence of the previous assessment;

2. The patient/family was not made aware of assessment and/or right to appeal;

3. The previous assessments were procedurally flawed, inaccurate or clinically* unsound.

The family asserted that they were unaware of any CHC assessment taking place between 2008 and 2011, and had not been invited to contribute at any stage. Furthermore, neither Mrs Thompson nor her family had been advised of the outcome of those assessments, their right to appeal the decision and the process and timescale for doing so. The family rightly pointed out that a considerable period of care, from 2004 to 2008, had not been assessed at any time.

Therefore, we felt quite within our rights, and in time, to challenge the CSU’s refusal to review, on the grounds that:

1) the period 2004 to 2008 had never been considered, and so, was a previously unassessed period of care (PUPoC); and

2) decisions made between 2008 and 2011 were procedurally unsound.

Complaint:

We complained to the CSU in December 2015 about its refusal to review, arguing that any previous decision to reject CHC funding was flawed, inaccurate and clinically unsound, especially given Mrs Thompson’s abundant healthcare needs as evidenced in her care/medical records. Moreover, the fact that Mrs Thompson and her family had been denied a rightful appeal, rendered any previous decisions invalid. Finally, a significant portion of the requested review period had never been considered and was, therefore, within the remit of the PUPoC deadline. Copy of any assessments previously undertaken by the CCG were requested.

The CSU’s position remained firm. Mrs Thompson’s eligibility for CHC funding had been considered during her lifetime and, regardless of the merits of those decisions (incorrect or otherwise), it was not prepared to reopen the matter. The CSU could only consider those patients who had never been assessed for CHC funding, in-line with the PUPoC guidance. The CSU was unable to provide copy of any previous assessment undertaken by the CCG. As far as they were concerned, the matter was closed.

A formal complaint was lodged with the CCG in March 2017, requesting copy of any assessments previously undertaken. The only reference to any assessment for CHC funding was contained in Mrs Thompson’s GP records. We did not accept this as cogent evidence of a formal, robust assessment! Similarly, we did not accept that the CCG could hide behind the argument that Mrs Thompson’s eligibility for CHC funding had already been (partially) assessed and, as such, wasn’t within the remit of the PUPoC deadline. The CCG referred the matter to the CSU, which seemed equally disinterested, having already made their position clear.

We chased the CCG to provide evidence of any assessments for CHC carried out in Mrs Thompson’s lifetime, as the family had no knowledge of any such consideration, and had not been invited to attend any assessment (contrary to the NHS National Framework). Bizarrely, the CCG could only supply circumstantial proof gleaned from entries in Mrs Thompson’s records, and seemed unable to provide a copy of any actual assessment. Had Mrs Thompson, in fact, ever been assessed by the CCG for CHC funding in her lifetime? Certainly, she had never received any outcome letters rejecting funding or advising of her rights to appeal and the timescales for doing so. If the CCG was unable to provide such documentation, this was a previously unassessed period of care (PUPoC), and therefore should be considered in full.

Finally, in September 2017, the CCG eventually disclosed a number of purported CHC assessments undertaken between 2008 and 2011. The CCG was unable to supply evidence of any communication with Mrs Thompson or her family advising of the outcome of these assessments and their right to appeal. Upon review of these documents, a further complaint was lodged with the CCG, citing the lack of family involvement, the denial of rightful appeal and the inadequacy of the extant assessments in evidencing proper consideration for CHC. The CCG still did not uphold the complaint and confirmed that the matter remained closed.

Parliamentary and Health Service Ombudsman (PHSO):

Formal complaint was then lodged with the PHSO in early 2018. Following a lengthy investigation, the PHSO found firmly in Farley Dwek’s favour.

The CCG was advised that the period 2004 to 2008 had never been assessed and should, therefore, be considered under the PUPoC deadline. Furthermore, the “previous assessments”, relied upon by the CCG as reason not to review, were both procedurally and clinically unsound. The family had been denied their right to participate and denied their right to appeal. The assessments themselves were inadequate and there was no evidence that Mrs Thompson had been robustly assessed for CHC funding during her lifetime. The PHSO instructed the CCG to consider the full period of care retrospectively.

In the light of the PHSO’s findings, the CCG softened its position and, in October 2019, agreed to conduct a retrospective review of the full period of care after all! At last, some common sense after more than 7 years of dogged and unrelenting perseverance!

Outcome:

The outcome of the retrospective assessment was favourable to Mrs Thompson. Having considered her care and medical records, the CCG agreed that Mrs Thompson was indeed eligible for CHC funding from 2006 and that her care fees should have been paid by the CCG from this date – had they carried out an accurate assessment in the first place! Any fees paid by Mrs Thompson would be refunded to her Estate in full, in addition to compound interest at the rate of RPI. Had the CCG and CSU dealt with matters more transparently and fairly, they would have saved a lot of time, resources and money, including substantial interest payments.

Mrs Thompson’s family was certainly put through the mill and had to endure more than 7 years of anxiety and frustration whilst battling against the CCG to uphold their rights. Yet, at every stage, the CCG, and the appointed CSU, seemingly did whatever they could within their power to try and put obstacles in the way to defend their position. They had misapplied and misunderstood the guidance, to Mrs Thompson’s detriment.

This was a complex, drawn-out battle. Without legal representation to fight such injustice, we wonder how many more families in similar circumstances have also missed out on their entitlement to CHC funding and had the wool pulled over their eyes?

What you can learn from this experience:

1. You really have to know your rights and the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (recently revised 2018).

2. Never take what the CCG tells you at face value. This CCG and CSU clearly did not understand the national guidance, or if they did, chose to mis-apply it in an attempt to deny Mrs Thompson her CHC package of funded care. Many would have accepted the CCG’s decision implicitly and without question; others may have given up, or been left floundering, not knowing their rights or how to argue their case in a coherent and robust manner.

3. Do not give up! This case has taken many years of perseverance and tenacious chasing, despite this CCG and CSU’s sheer ineptitude, incompetence and inordinate prevarication – seeking to frustrate the family’s rights at every corner, and putting up hurdles to obstruct their access to justice.

4. Don’t be afraid to challenge the CCG. As illustrated in this example, they do get things wrong – whether through misunderstanding, misapplication or unwritten financial gate-keeping policies!

5. Stand your ground. Complain and challenge them whenever you believe their decisions are incorrect or flawed.

6. Cases dealt with under PUPoCs guidance are unusual. Generally speaking, there is a strict 6 month deadline to appeal any MDT decisions – so beware to ensure you comply, otherwise you will lose your right to appeal!

7. Where the CCG provides a copy of a previous assessment (but it is not sufficiently robust), we would always recommend that you challenge it via a formal complaint to the CCG and PHSO, if necessary.

8. A clear procedural failing, for example: no consideration of eligibility for CHC prior to an award of Funded Nursing Care, or where family are excluded from the process, or are not informed of their right to appeal – should always result in a complaint to the CCG (and an appeal for reconsideration retrospectively if the MDT has made a decision).

9. If there are no procedural flaws, but the assessment is felt to be clinically unsound i.e. there is disagreement over the levels of need and/or application of the eligibility criteria – then this is less clear cut, but we would still advise lodging a formal complaint setting out your disagreement.

10. Prepare your case thoroughly.

11. If you find arguing your relative’s care needs with the CCG too emotive, daunting or frustrating, then seek early legal assistance. Farley Dwek Solicitors offer a full Retrospective Review Service.

Visit our website for more information and do call us on 0161 272 5222 or 0800 011 4136 for a free initial consultation, or email your enquiry to us at: enquiries@farleydwek.com

Covid-19 – We would like to reassure our clients throughout this difficult period that our team will still be on hand to provide our normal level of service, and should you be in the position where you need to speak to us about your case please do not hesitate to contact us.

We are continually reviewing information and guidance in relation to the Covid-19 pandemic. Our primary objective is to protect the welfare of our staff and clients, but at present we are able to operate our business as usual and you should notice no major changes in the way your matter is being handled.

We have developed robust and comprehensive contingency plans in order to continue to service the needs of our clients, whilst heeding advice from experts and government to ensure the safety of clients, staff and the general public.

We are encouraging our staff to work from home wherever and whenever possible, but they will continue to have access to case files and emails during this period. We are operating the office on a skeleton staff who will be available to take telephone messages and contact staff working from home by email.

We do not anticipate making any changes to the person that is handling your case and you should be able to contact them in the usual way. Staff working from home will if necessary contact you using their personal mobile telephones but we ask that you do not call or contact them on those numbers and always ring the office number, or use email.

We are still able to assist with new enquiries, and you can contact us via our website, email or telephone helpline in the usual manner.

We take this opportunity to thank you for your assistance and understanding in these unprecedented set of circumstances.

Lasting Power of Attorney: Understanding the basic difference between a Will and an LPA

Many people do not understand the critical difference between a Will and a Lasting Power of Attorney.

A Lasting Power of Attorney (‘LPA’) enables you (the donor) to appoint a chosen representative (known as your ‘attorney’) to make decisions to meet your needs at a stage when you lack the mental capacity to look after your own health and financial affairs. An LPA gives you peace of mind that your entrusted attorney will be acting in your bests interests at all times and making decisions on your behalf, as if you were making them yourself.

A Will only takes effect after death and confers power to manage your estate and affairs (eg property, assets, savings, investments, jewellery etc) to your appointed Executive(s) to deal with in accordance with your stated wishes and preferences. Without a Will, your estate will be caught by the Intestacy Rules, and all your wealth and assets will be allocated in a predetermined order, possibly passing to some beneficiaries whom you might not have considered appropriate.

An LPA can only be made if you are at least 18 years old and have mental capacity to make it. Given that your attorney will effectively be stepping into your shoes, you should appoint someone whom you trust to look after your health and financial affairs. This is usually a spouse, partner, adult child (also over the age of 18) or professional adviser. You can have up to 4 attorneys. But beware, as often, the more attorneys you have, the harder it can be to reach decisions. If you wish, you can also specify which decisions your attorney can and can’t make.

Indeed, under an LPA you can also specify that you would like your attorney to take control or have some involvement in your health and financial affairs even whilst you still have mental capacity.

You can also appoint replacement attorneys in the event that one of your appointed attorneys dies, loses capacity, or no longer wants to act.

However, without a valid Power of Attorney in place, decision-making may be left to others who do not know you, or your ‘wants’ and preferences. Your preferences may be ignored and whilst decisions should be made in your best interests, that may not necessarily happen. Instead, an application will have to be made to the Court of Protection to appoint a Deputy to take control of any decision-making process on your behalf. That can be expensive, and inevitably there will be delays whilst the application goes through the court process. In the meantime, vital decisions as to your health or finances may be on hold.

If you don’t have a Will or Lasting Power of Attorney in place for your spouse or relative, then we strongly recommend you do so, as soon as possible. Visit our website to see how we can help.

Below is a personal testimony given to us by a client who encountered problems with regards to decision-making, even though her mother had a valid LPA in place. Read her story and learn from her ordeal to prevent this situation from happening to you.

Mental Capacity Act Assessment

“My late mother had LPA for both health and welfare and property and financial affairs. She appointed my husband and me as her attorneys. We were required to have regard to the Mental Capacity Act 2005 (MCA) Code of Practice [1]. People acting in a professional   capacity such as doctors, nurses, allied health professionals and social workers are also required to have regard to the Act.

In March 2014 the House of Lords published a report on post legislative scrutiny of the MCA [2]. Paragraph 63 says:

“We were told of a worrying tendency among local authorities to use the presumption of capacity to avoid taking responsibility for a vulnerable person.”  and;

“The Law Society referred to the principles of the Act being “applied perversely”, using the presumption of capacity to avoid assessing capacity, “with the implications for associated support and resources.”

My mother developed vascular dementia. We, as her attorneys, were concerned that she had lost the capacity to make some important decisions about care needs and place of residence. We expected her social workers to help us to ensure that she had a proper mental capacity assessment and appropriate support to make decisions. Instead, they repeatedly insisted that my mother had capacity without carrying out proper assessments.

My mother’s social care records show that her local authority social care workers secretly tried to get her LPA revoked in order to avoid dealing with her attorneys, who they knew objected to their attempts to:

• Downplay her care needs
• Obstruct her wish to be able to live at home at the end of her life
• Trick her into believing that she would have to sell her home to pay for her care without assessing whether her care needs exceeded the local authority legal remit and should have been funded by NHS Continuing Healthcare.

What follows are the tactics they used to try to get the LPA revoked. All of this took place behind our backs:

a) In September 2018, according to local authority records, my mother made a  comment to a social worker that was construed as an allegation that she had been “swindled” into signing her LPA. There also appear to have been some vague allegations that her attorneys had seized her property for themselves.

b) The correct course of action should have been for the social worker to regard this as an allegation of financial abuse against my mother’s family and invoke her local authority’s safeguarding policies to assess my mother’s mental capacity to make the allegation and offer her an advocate.

c) This did not happen. Instead the social worker was told by her local authority Mental Capacity Act and Deprivation of Liberty Safeguards (DoLS) lead that she had a duty to report the matter to the Office of the Public Guardian (OPG) for “human rights” reasons – despite the fact that my mother had not given consent.

d) The social worker telephoned the OPG and was informed that, if my mother had the mental capacity to make a decision about contacting the OPG (which the MCA/ DoLS lead and social care staff seemed to have convinced themselves to be the case), they could not investigate the allegation unless she requested an OPG investigation herself.

However, the social worker omitted to tell the OPG that the local authority had belatedly appointed an independent consultant psychiatrist in July 2018 to properly assess my mother’s capacity to make specific decisions, including decisions about her LPA.  The consultant was appointed after my husband and I had told the local authority that we did not want my mother to be subjected to any further mental capacity assessments in respect of important decisions unless they were conducted by an NHS mental health professional in full consultation with her attorneys.

On 2nd October 2018 the psychiatrist explained to my mother that a social worker had alleged to him that she wanted to revoke her LPA. He recorded that she vehemently denied the allegation.

The consultant psychiatrist completed his report on 5th October 2018, concluding that my mother did not have the mental capacity to make decisions about her LPA, health and social care needs and place of residence, and was unlikely to regain capacity due to her vascular dementia. His opinions were consistent with those that my husband and I formed ten months earlier, in December 2017, and which were ignored by the social care workers.

The unintended consequence to the local authority of its workers’ intransigence was that it spent six months of Better Care Funding to keep my mother in a temporary placement in residential care.

On 9th October 2018 local authority social care staff, including its MCA lead, met to review the independent consultant psychiatrist’s mental capacity assessment and concluded that my mother’s attorneys had not abused their position. Needless to say, the local authority has not yet apologised for its employees’ disregard of the MCA, their calling into question our integrity as attorneys, and the harm and distress their unacceptable behaviour caused to my late mother, a vulnerable 97 year old.

Learning from my family’s experience.

1) If you are an attorney appointed under LPA, make sure you understand how a proper mental capacity assessment should be conducted so that you can spot and challenge professionals and care workers, who fail to comply with the MCA.

As well as the MCA Code of Practice I found these resources helpful:

The Office of the Public Guardian’s “Making decisions, a Guide for people who work in health and social care” [3]. This document explains the process professionals should     follow when conducting capacity assessments and page 20 explains how they should    respond to challenges to their opinions.

The Open University has a free, online course “Understanding mental capacity” which I found very useful. [4]

2) Unfortunately the Office of the Public Guardian will not deal with attorneys’ complaints that those acting in a professional capacity have breached the MCA because it regards this as outside its remit. It will only investigate complaints against attorneys and Deputies appointed by the Court of Protection.

However, if you can influence the authorities to appoint an independent consultant       psychiatrist (at their expense) to conduct a proper psychiatric and mental capacity         assessment, it is possible to achieve a proper outcome, and the report can be used as   input to NHS Continuing Healthcare Checklists and Decision Support Tools at a full assessment.

3) Insist that any psychiatrist appointed meets the following criteria for doctors which apply to mental health assessments under Deprivation of Liberty Safeguards (which are part of the MCA and relevant to decision making about place of residence):

The person must be:

a) approved under section 12 of the Mental Health Act 1983; or

b) a registered medical practitioner who the supervisory body is satisfied has at least three years post registration experience in the diagnosis or treatment of mental disorders

c) The supervisory body (local authority) must be satisfied that the person has successfully completed the Deprivation of Liberty Safeguards Mental Health Assessors training program made available by the Royal College of Psychiatrists.”

[1]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf

[2] https://publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf

[3]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/348440/OPG603-Health-care-workers-MCA-decisions.pdf

[4] https://www.open.edu/openlearn/health-sports-psychology/understanding-mental-capacity/content-section-overview?active-tab=description-tabI

In order to establish whether your relative meets the criteria for a primary healthcare need and is eligible for NHS Continuing Care Funding (‘CHC’), they’ll need to undergo a multi-disciplinary team assessment.

If your spouse, relative or friend has a ‘primary healthcare need”, ie needs over and above those which the local authority are legally obliged to provide, then they may be entitled to have all their care fees, including accommodation, paid for free of charge, by the NHS.

The first stage of the assessment process is to have an initial Checklist completed. You can read all about this in our previous article, “The NHS Continuing Healthcare Funding Checklist Explained.”

If your relative passes this Checklist stage, they will then go on to a full assessment, which is carried out by their Clinical Commissioning Group (CCG).

The CCG will appoint at least 2 assessors to meet with your relative in their care setting to carry out a Multi- Disciplinary Team Assessment (“MDT”).

The National Framework provides that the MDT should consist of at least 2 professionals who are from different healthcare professions, or one professional who is from the healthcare profession, and the other is a social worker.

A list of MDT professionals could include the following: Nurse Assessors, Social Care Practitioners, Physiotherapists, Occupational Therapist, Dieticians/Nutritionist, GPs/Consultants/Other Medical Practitioners, Community Psychiatric Nurses, Ward Nurses, Care Home/Support Provider Staff, Community Nurses, Specialist Nurses, Community Matrons and Discharge Nurses.

Important: These appointed professionals should be trained in the National Framework, be knowledgeable about your relative’s health and social needs, and where possible, have recently been involved in their assessment, treatment or care.

We know from experience that it is quite common for the MDT’s assessors to have little or no knowledge of your relative’s daily needs. Indeed, they may never have met them before assessment, or else have very little understanding of the National Framework and the assessment process. This can lead to tainted and poor assessments, with disastrous outcomes for families who are fully expecting their relative to be awarded NHS Continuing Healthcare Funding, and that the process will be carried out thoroughly, fairly and robustly. As you can imagine, if the MDT’s assessors have no direct prior knowledge or input into your relative’s care needs, then even in the most obvious cases where CHC Funding should be recommended, it could become an uphill struggle.

Question what training the MDT’s assessors have had on the National Framework, and also what prior involvement they have had with your relative’s care. Otherwise, proceeding with the MDT might be a pointless exercise and a waste of time, leading to a lengthy appeal.

The MDT assessment is carried out by the assessors looking at your relative’s medical condition, their medical history, in conjunction with the care and other relevant medical records and assessments, to build an overall picture of their healthcare needs.

Unsurprisingly, care home records do not always contain all the necessary evidence to support the case for CHC Funding. Firstly, it isn’t always in their best interests to keep detailed records as that might assist the resident to get CHC Funding, which invariably, will be paid by the NHS at a lower rate than the actual cost of care. Secondly, most care homes have too few staff looking after too many patients, and there’s simply not enough time in the day to write up each and every occurrence as it happens. Staff may write up care records at the end of their shift which, after a long day, can lead to errors and many important entries being forgotten, or else, partially or inadequately recorded.

However, these records can provide vital contemporaneous evidence of actual daily healthcare needs, and are therefore equally, a vital ingredient of the assessment process. Poor records can often result in a poor outcome!

As with the initial Checklist assessment, you should be given plenty of notice of the MDT meeting.

It is essential that you attend to ensure that the assessment is conducted impartially and robustly.

You can provide a vital role by assisting the MDT’s assessors with additional information about your relative’s daily healthcare needs or correcting any errors or misunderstandings they may have.

Don’t assume the MDT assessors have all the facts and are above making reproach. You will know more about your relative’s needs than them. So speak up!

It is also essential that the MDT’s assessors actually see your relative as part of their assessment. This sounds obvious, but we have heard of assessments being carried out, without them even asking to see the resident – ie clearly suggesting that the assessors had already made their minds up to reject funding in advance. How can that be right or fair?  If this happens to your relative, you must object and raise your concerns as these are immediate grounds for appeal.

The Multi-Disciplinary Team will score your relative’s needs using the parameters set out in the Decision Support Tool (DST).

The DST contains 12 headings, known as Care Domains, similar to the Checklist, but with the added 12^th Domain of’ ‘Other significant care needs’:

1. Breathing 2. Nutrition 3. Continence 4. Skin Integrity 5. Mobility 6. Communication 7. Psychological & Emotional needs 8. Cognition 9. Behaviour 10. Drug therapies and medication 11. Altered states of consciousness 12. Other significant care needs.

Common misconception: The DST is not the assessment of needs itself. It is just a tool to aid the MDT assessors record the level of your relative’s health needs in one document, based on information they’ve gathered, so that they can make a recommendation eligibility for CHC Funding.

Each of the 12 Care Domains contains a description (‘descriptor’) of the level of need ranging from ‘no needs to ‘severe’ or ‘priority.’

Here’s an example of the ‘Behaviour ‘domain…

9. Behaviour

Description	Level of need
No evidence of ‘challenging’ behaviour.	No needs
Some incidents of ‘challenging’ behaviour. A risk assessment indicates that the behaviour does not pose a risk to self, others or property or create a barrier to intervention. The individual is compliant with all aspects of their care.	Low
‘Challenging’ behaviour that follows a predictable pattern. The risk assessment indicates a pattern of behaviour that can be managed by skilled carers or care workers who are able to maintain a level of behaviour that does not pose a risk to self, others or property. The individual is nearly always compliant with care.	Moderate
’Challenging’ behaviour of type and/or frequency that poses a predictable risk to self, others or property. The risk assessment indicates that planned interventions are effective in minimising but not always eliminating risks. Compliance is variable but usually responsive to planned interventions.	High
‘Challenging’ behaviour of severity and/or frequency that poses a significant risk to self, others or property. The risk assessment identifies that the behaviour(s) require(s) a prompt and skilled response that might be outside the range of planned interventions.	Severe
‘Challenging’ behaviour of a severity and/or frequency and/or unpredictability that presents an immediate and serious risk to self, others or property. The risks are so serious that they require access to an immediate and skilled response at all times for safe care.	Priority

Remember: If there is disagreement between members of the MDT about a level of need, the higher level must be applied.

Many families mistake the DST ‘scores’ as being the most important determining factor for awarding funding. However, the DST is just a forum to record the level of need. What is important is how these needs impact upon the 4 Key Indicators (sometimes called ‘characteristics’), namely: Nature, Intensity, Complexity and Unpredictability.

DST scores, whilst of course important, are not always the overriding factor in determining eligibility for CHC Funding. You’ve got to look at the bigger picture and take a holistic approach. You have to consider the totality of the individual’s needs by applying the 4 Key Indicators to see whether there is a primary need for healthcare overall.

Essentially, you need to look at the interaction between the different care needs across the 12 Care Domains and see how they impact upon each other.

It is not simply a question of saying, “My relative has scored ‘1 severe’, ‘3 highs’ and ‘4 moderates’ in their DST, so they must qualify”. If the evidence does not suggest the patient’s needs are complex, intense and/or unpredictable, they will not qualify for funding, whatever the assessed levels of need (excepting, of course, one “priority” level of need or two “severe” levels of need which would fulfil the Key Indicators).

When thinking about the 4 Key Indicators, consider the following:

• How often do care interventions arise over a 24-hour period and how long does it take staff to meet the need on each occasion; how many members of staff are required for each intervention (Intensity)?
• Do the staff need any specialist training, knowledge or skill in order to meet the needs and do needs interact (Complexity)?
• Are the needs unstable and/or rapidly changing (Unpredictability)?

This will build a picture as to whether your relative needs trained staff to manage these healthcare needs with skilled intervention over a sustained 24-hour period to prevent deterioration.

Attending a full assessment in front of a Multi-Disciplinary Team can be a stressful and daunting experience, and often fills families with much anxiety. Most family representatives don’t really understand the National Framework, how the assessment process works, what is expected of them at the MDT, or what they should or shouldn’t say. The MDT’s assessors will be far more experienced and should know the National Framework inside out. They should come with an open mind so that they can conduct a fair and thorough assessment and make an impartial recommendation as to your relative’s eligibility for CHC Funding.

However, listening to families, and what we know from our own experience, we often hear that MDT assessments do not go as expected. Sadly, some assessors appear to come with a predetermined outcome (i.e. to refuse funding) and no matter how much the family try to argue their case, they feel overwhelmed by the assessors’ aggressive or indifferent stance.

The MDT is your first real opportunity to secure long-term fully-funded free care for your relative. It Is therefore critical that you give this meeting your best shot. Otherwise, your relative may end up paying huge sums for their own care and accommodation.

Good preparation for the MDT is the key.

Here are our top 10 tips:

1. Get the MDT in plenty of time and ensure you are at the assessment when it starts. Don’t allow the assessment to start without you. Who knows what’s been done or said in your absence.
2. Speak to the relevant care home staff in advance as they may be questioned by the MDT’s assessors about your relative’s daily care needs. Inaccurate or ‘loose’ phrasing may paint a misleading or entirely different picture of your relative’s needs.
3. Ask the assessors what qualifications they have, what their experience of conducting MDTs is, how they know your relative, and what aspect of their care they have provided.
4. Participate in the meeting and don’t be a bystander! You know your relative’s needs better than the assessors – so stand up, speak up, and don’t be afraid to correct any misinformation they have.
5. Point out to the assessors any of the care records, risk assessments or care plans etc, that you think are particularly relevant and check they’ve been considered by the assessors.
6. Look at Practice Guidance Note 22 of the National Framework which lists the type of information and evidence that the MDT assessors should consider before making their recommendations funding.
7. Don’t ramble on about unimportant matters. Whilst we know that you’ll want to tell the MDT’s assessors all about your relative’s care needs from ‘A – Z’, it is vital that you stick to your key arguments and don’t get side-tracked pontificating about areas of care where there are ‘no’ or ‘low needs’. Focusing on irrelevancies or making poor points, will only serve as an own goal and could severely undermine your relative’s chances of securing funding. We recognise that this is often easier said than done, when you are emotionally involved.
8. It’s a good idea to take someone along with you for notetaking, as a good record may become useful evidence if you need to lodge an appeal.
9. Do not discuss nor engage in any discussion about how your relative’s care will be funded at this stage! It is completely irrelevant and has no place in the assessment. The MDT assessors are there solely to determine whether your relative has a ‘primary healthcare need’ and make a recommendation as to their eligibility for funding. It is not their job to discuss whether your relative can pay privately for their own care.
10. Don’t sign any agreement to the DST. There could be key matters which the MTD assessors have overlooked, misinterpreted, mis-stated or not given sufficient weight to, which could impact upon their recommendations. Signing your agreement to the DST may unwittingly prejudice at any later appeal, if needed.

The NHS assessment process is supposedly designed for families to attend and argue the case for funding themselves. Unfortunately, in our experience, very few families who embark upon this process, successfully manage to get to grips with the National Framework or have the particular skills required to secure funding.

The common error that families frequently make, is thinking that their relative must surely qualify for CHC Funding, when in fact their health needs are not sufficiently high enough. The barriers to getting CHC funding are stacked against you and the bar is set very high.

Farley Dwek Solicitors have a wealth of experience, gained over many years, in dealing with MDTs. We provide advocacy help and support for families, and take the stress and strain of the MDT assessment on our shoulders. We use specialist nurses who have all worked in this particular field for many years, and who understand the National Framework and know how to fight your corner. Farley Dwek can help you at every stage of the assessment or appeals process.

Get our Free Guide or call us on 0161 272 522 or 0800 011 4136 for initial free advice.

For further reading, we recommend that you look at:

Practice Guidance Note 21 of the National Framework: What are the elements of a good multidisciplinary assessment of needs?