Complaints about funding under a little-known NHS scheme called Continuing Healthcare (CHC) have almost doubled over the last five years, according to figures obtained by the Sunday Times from the Parliamentary and Health Service Ombudsman. The figures show that families are facing an increasingly complex and drawn out battle to secure care fees funding for their elderly relatives.
From April 1st 2011 to March 31st 2012, 319 complaints were made to the Ombudsman. However, from April 1st 2015 to March 31st 2016, that figure had increased to 600 complaints. Since April 1st 2016, the Ombudsman has already received 391 complaints – suggesting that the number of complaints made this year will hit a record high.
Under the Continuing Healthcare scheme, those with a primary health need may be entitled to full funding for the cost of their care from the NHS, regardless of their assets or means. If a person requires care and is not entitled to funding, they will have to pay for the full cost themselves – provided that they have assets of £23,250 or more. If their assets are between £14,250 and £23,250, they will be asked to contribute to their care with the NHS making up the shortfall. Once their assets reach the £14,250 threshold, the NHS will step in and pay for their care in full. With residential care fees averaging £756 a week (source: LaingBuisson), a person’s assets – including the value of their home – can be depleted very quickly by care costs – leaving nothing to pass on to their children or grandchildren.
When someone requires care, very often their healthcare team will conduct a means test as a first step, to see if they can afford to pay for the care themselves. However, this is incorrect – what they should do is complete an assessment to see if the person is entitled to Continuing Healthcare funding. The assessment process consists of an initial test carried out against a checklist by a healthcare professional involved with the person’s care – followed by a more detailed assessment carried out by two healthcare professionals. A fast track process that skips the initial assessment is available if the person’s health is deteriorating rapidly. However, the scheme is complex, confusing and stringent – and as a result, many people who would be entitled to funding are overlooked or refused.
One problem that has led to the increase of disputes is that people are living longer and therefore more people are requiring care. Men now live for an average of 79.1 years, while women can expect to live for 82.8 years on average (ONS, 2013-2015). The NHS is struggling to cope with a growing number of claims from the aging population – and some have argued that the State should not fund care for people who have the means to pay for it themselves. Others have argued that since the system exists, it should be fair and consistent for all.
What you can do
If you have an elderly relative, make sure that they have a Lasting Power of Attorney in place for both Finance & Property, and Health & Welfare matters. If they should need a Continuing Healthcare assessment in the future, this will allow you to be part of the assessment process and to push their case forward if you feel the decisions made were wrong.
If your elderly relative has already lost mental capacity (i.e. they do not have the capacity to make decisions for themselves relating to their healthcare), it is too late to make a Lasting Power of Attorney – but you should consider obtaining a Deputyship Order. There are two types of orders – one for Health & Welfare, and one for Property & Finance. With the Health & Welfare order in place, again you will have the right to be involved in any healthcare assessments and decisions – and may find it easier to bring an appeal if they are incorrectly denied funding.
If you and your partner have made a ‘Mirror’ Will, you may wish to review this with your solicitor. If you hold your property as ‘tenants in common’ (meaning that you each own an identifiable share), you can leave your share in trust to your partner. This allows them to use the property for life, after which it will pass to whoever you choose (e.g. your children). The benefit of this is that if your partner needs care after your death (or vice versa) and they are not entitled to Continuing Healthcare funding, the Local Authority cannot take your share of the property into account when carrying out a means assessment.
Speak to our Later Life Planning team about any of the above issues.