Continuing NHS Healthcare information booklet for individuals, families and carers - What happens if you are not eligible and how to appeal

Not everyone with on-going health needs is eligible for Continuing NHS Healthcare (CHC) but you may have needs identified through the Multi Disciplinary Team (MDT) assessment that are not of a nature that your Local Authority (LA) can solely meet or are beyond the legal powers of a LA to meet.

In these situations your LA takes responsibility for your care and support and works in partnership with your LHB to provide a health and social care package that is tailored to meet your individual needs.  

Joint packages of health and social care

Joint packages of care are where the LHB and LA work together in partnership to agree their respective funding responsibilities in your joint package of care to provide a seamless provision of health and social care.  You will be means-tested for services that are the responsibility of your LA.

You should not experience any delay in receiving your care package while this care is being arranged.

Funded Nursing Care

If you do not qualify for CHC you might still be able to receive a NHS-funded nursing care (FNC) contribution because you do have some level of nursing care need. This is only paid if you are assessed as needing nursing care in a care home registered to provide nursing care. The nursing care contribution is a flat weekly amount paid directly to the care home.

Any social care element may be funded by the local authority and/or yourself, depending on your financial assessment. If you are paying for your own care in a care home with nursing, you can still be eligible for NHS-funded nursing care contribution. This does not affect your benefits, and should reduce the cost of the care home placement for you.

The care home should give you a written statement with a clear breakdown of how much of the costs are covered by the NHS, the local authority and yourself. You can ask them for a statement if you have not received one.

If you don’t agree with the LHB decision, you have the right to make an appeal. You must inform the LHB of your intention to appeal within 28 days of the date you were told of the eligibility decision. Requests made after this time period will only be considered in exceptional circumstances. You must submit you written appeal to the LHB within 6 months of the date you were told of the eligibility decision. Appeals submitted after this time period will only be considered in exceptional circumstances.

The review does not cover the content of care plans, but you can request a review about:  

• the procedure followed in reaching your CHC eligibility decision; or
• the application of the criteria for eligibility – i.e. the ‘primary health need’ test and whether this has been applied in a correct and consistent manner.

You may also take your case to the Public Services Ombudsman for Wales if you remain unhappy following a review (see contact details).

There are two stages in the appeals process – a local review stage and an Independent Review Panel stage. 

Local review stage

If you or your family approach your LHB for a review of the decision, it will firstly be dealt with by your LHB’s local review process.  Your LHB should provide you with details of their local review process, including timescales, and deal with your request promptly. If you are still unhappy with the decision following the local review process your appeal should progress to the Independent Review Panel stage.

Independent Review stage and timescales

Your LHB must have an Independent Review Panel (IRP) which has an IRP chair, and representatives from an LHB and LA. The IRP process should normally be completed within 4 weeks of the request for a review (unless in exceptional circumstances). This period begins once any action to resolve the case at the local review stage has been completed.

The decision that you are not eligible for CHC funding remains in place until the appeals process has been completed.  During this time you should receive appropriate care while you wait for the outcome of your appeal, but you may have to contribute towards the cost of your care package during this time.

Your circumstances when you ask for an appeal will affect who is responsible for arranging and/or paying for your care. Your LA and/or NHS may be involved or you may already be arranging and/or funding your own care.

If you feel that you, or someone you care for, were eligible for CHC during a period of time when you were paying for care, you can ask for a retrospective review to get the care fees reimbursed. The LHB is responsible for current and retrospective review cases, they should have an appointed person you can contact about this, contact them to find out who this is. You may have reason to believe that you should have met the eligibility criteria because:

• the LHB carried out an assessment in the past, but there is evidence that the criteria were not applied appropriately; or
• it should have been reasonably apparent to the NHS at the time that you might be in need of CHC services, but the LHB failed to arrange and carry out an assessment.

There is currently a rolling cut-off date for submitting your retrospective review. You have to make your claim within 12 months of the end of the period you are claiming for. Claims outside of the stated cut off dates may be considered in exceptional circumstances.

The LHB will need you to supply proof of care fees that have been paid during the period in question. If you’re applying on behalf of someone else, the LHB will need to see documentation to show that you have the relevant legal authority to pursue the claim. These must be provided within 5 months or registering the claim.

You will be sent a questionnaire by the LHB. In this document you will outline your case for why you believe you should have qualified for CHC.  When the LHB receives your completed questionnaire, it will make requests to the relevant care providers for records of your care. The LHB will produce a “chronology of need” from all available records.

Stage 1 Review

The LHB will assess the information in the chronology of need against the CHC Checklist Tool. If no potential eligibility is found, the case is closed. If potential triggers for eligibility are found, the case progresses to Stage 2. These decisions are ratified by an independent IRP Chair.

Stage 2 Review

The LHB will add any further available evidence to the chronology of need and assess this information against the 4 key indicators of Nature, Intensity, Complexity and Unpredictability and by applying the Primary Health Need approach for the whole of the claim period.

This will be peer reviewed by a different clinician – or in cases where no eligibility is found, by 2 different clinicians – to ensure the recommendation is correctly supported by evidence and that the criteria have been applied consistently. If there is disagreement between the clinicians, the case will be passed to a Review Panel (IRP).

The recommendation on your eligibility will be made on the evidence available. It can be 1 of 4 possibilities:

• matching- the period of eligibility found matches the claim period in totality from the trigger date
• partial- eligibility is found for part of the claim period from the trigger date
• no eligibility found for any part of the claim period from the trigger date
• Panel - the reviewer has been unable to make a decision as the information available is complex or the clinicians are unable to agree on the period of eligibility.

Dependant on the recommendation made, your case will go along 1 of 3 pathways:

• matched cases will go directly for ratification
• partial and no eligibility cases will be forwarded to claimants with the opportunity to discuss the findings
• Panel cases - an Independent Review Panel will be convened.

You will be invited to discuss your case where partial or no eligibility has been found:

• Partial eligibility- the discussion will aim to reach a mutually acceptable period of eligibility based on the evidence available and/or new evidence that has not previously been available. If agreement is reached at this stage, the case will be forwarded for scrutiny and ratification. If no agreement is reached, the case will be forwarded for IRP consideration.
• No eligibility- the discussion will provide opportunity for further explanation of the CHC criteria and to check that the claimant/representative has understood the lack of evidence on eligibility.

In all cases if you are found eligible for either the full or part period of the claim, timely reimbursement should be made.

You may also take your case to the Public Services Ombudsman for Wales if you remain unhappy following a review (see contact details).

Please note health boards will have more detailed information on how to make a retrospective claim and how the process works and they will share this with you when you contact them.

Disability benefits

The main disability benefits are:

• Attendance Allowance (AA)
• Disability Living Allowance (DLA)
• Personal Independence Payment (PIP)

These are paid directly to you whereas with CHC, fees are paid directly to care providers.

If you are receiving your CHC care package at home, you can continue to receive these disability benefits. You can check that you are receiving them at the appropriate level.

Receiving CHC in a care home with nursing

If you are receiving your CHC in a care home with nursing, AA and both care and mobility elements of DLA and PIP are suspended after 28 days from the time the LHB funding begins, or sooner if you were recently in hospital.

Receiving CHC in a residential care home

If you are receiving your CHC in a residential care home, the care component of disability benefits is suspended after 28 days from the time LHB funding begins, but DLA or PIP mobility components continue.

If you are receiving social care and support in either kind of care home setting that is arranged and funded by your local authority (you will be required to contribute towards these costs from any eligible income you continue to receive), the care component of disability benefits is suspended after 28 days, but DLA or PIP mobility components continue.

State Pension and Pension Credit

State Pension is not affected by eligibility for CHC.  If you receive Pension Credit, you will lose the severe disability element of your Pension Credit award when you are no longer entitled to AA, DLA (care component) or PIP (daily living component) and this is likely to affect the amount of Pension Credit you are eligible for.