Funded Nursing Care

The Department of Health guidance and Workbook on Free Nursing Care envisages that people will be assessed by Health Authorities as needing one of three bands of registered nursing care in a nursing home. The bands translate into money, and the money goes to each home.

The top band – worth £110 a week, from the NHS to the home, will be for those who need up to 55% more registered nurse time than those at the ‘ordinary’ standard level – who are paid for at the rate of £70 a week. This calculation is based on a study by the University of Kent which suggested that residents with clinically complex nursing care needs receive on average 48 minutes of registered nursing care per day, compared with 31 minutes for those with standard needs. We think that if someone needs appreciably more than 48 minutes – certainly anything over double that amount, then they would have to be considered for continuing care fully funded by the NHS.

There is no band for people who merely need care assistant attention without any planning, delegation or monitoring. Even if such people exist, (and we doubt that they do, logically, for why would they need a placement in a nursing home which is run by a registered nurse?) that level of nursing will be seen as personal care.

Why is this initiative necessary?

In 1999 a high-profile case re-drew the boundary line between NHS and social services funding of nursing care in nursing homes. The Coughlan case was of fundamental importance to Health and social services authorities, hospital discharge teams, care managers, clients, particularly those who were better off financially – and their families – yet the practical implications of it for users and authorities were not generally worked out in the 2 year period after the judgment.

The case determined that social services were able and obliged, after a favourable assessment of a persons ongoing needs for a nursing home placement, to contract for peoples nursing care and attention, (and therefore re-charge for the nursing care involved, under national compulsory charging rules) when the quantity and quality of care was such as to be only ancillary or ‘incidental’ to the persons other social care needs.

The Coughlan case held that when someone was over that line, there was no legal power available to a local authority, to pay or purchase the extra nursing services, because the statutory wording and framework showed that a need for that level of nursing (identified, the Court laid down, by looking at the range, frequency, intensity, specialism and continuity of the persons nursing needs) must be met by Health Authorities under the National Health Service Act.

Thus whilst HAs were entitled to have discretionary criteria for the trigger point at which they would acknowledge that they would have to meet such needs, those criteria were supposed to be set with the legal limitations on local authorities service purchasing powers in mind. The distinction between registered nurse nursing care and the rest of the care provided is supposed to have honoured the distinction made in Coughlan.

The Defendant HA’s criteria, and indeed most HA’s criteria up until the case, had focused on the nursing skill factor required, meaning that unless truly exceptional levels of specialist nursing care was needed, no-one qualified for continuing care in a nursing home setting, wholly, or even partly, funded by the HA.

In Coughlan, the court emphasised that it is not merely the fact that a client could feasibly be cared for in a nursing home setting which determines whether a local authority is properly liable for the funding: the NHS should still be paying for some people in nursing homes by way of direct contracts with the home. The court suggested that there would be some people who would be fully funded, where their health and social care needs were inextricably intertwined (this made sense because how could the local authority have properly been the judge of what was needed in that situation?) and others who would be local authority placed, but have intermittent needs for NHS input as their needs fluctuated. For these people, the nursing home placement, and the basic nursing and the rest of the package could be paid for by social services and re-charged to the client, but the extra hours of attention needed for an individual, over the norm, were to be funded by Health.

This judgment meant that probably half the criteria in the country were drawn up unlawfully narrowly and need reviewing; but also, it suggested that half the nations local authority criteria for nursing care, as opposed to residential, were probably set too high as well – higher even than the point where the judges envisaged that the NHS should be shouldering some or all of the responsibility.

Another implication was that where people were still placed and fully funded by a local authority, despite being clearly an NHS responsibility, they may wrongly have been expected to sell their home and fund their own services through the LA’s charge, and hence they or their estates would have legitimate grievances which may well come home to roost by way of litigation to recover the money from one authority or the other.

This judgment should have heralded greater co-operation between authorities in evolving more reasonable criteria for eligibility for free NHS care, outside a hospital setting. Instead, with joint working on everybodys minds, and the fact that the change in emphasis in the law was inaccessible to patients and their families, not much was done in practice, across the nation, to overhaul criteria and lower the thresholds.

The real reason that the Coughlan principle was of limited use to patients, though, was that professionals could not agree what basic nursing was, and what was particularly intensive or frequent or skilled nursing. One cannot have a view of those factors, without some sort of an evaluation against a baseline matrix or consensus.

This crucial missing link has now been laid down by government through the adoption of an assessment tool called the Registered Nursing Care Contribution. This tool has been developed to be used within new framework guidance for the provision of free registered nurse care in a nursing home, so that no-one who needs nursing, ends up worse off financially, just because they are well enough to be cared for outside a hospital, instead of as an NHS in-patient.

The majority of people needing nursing home accommodation but who access it through a local authoritys assessment will get either £70 or £110 a week towards the fees from April 2003 onwards (it was going to be 2002 but it has just been put off another year).

The guidance makes the point very clearly that any person eventually given an RNCC assessment should have been considered for NHS fully funded continuing careintermediate care, longer term NHS funded rehabilitation, etc.

Continued relevance of Coughlan compliant criteria for local authorities

From October 1 onwards until April 2003, if it has not already been done through negotiations with Health for currently supported LA clients, we think it makes sense to allocate funds for NHS continuing care functions on the basis of a score, derived from the assessment tool. This is because some patients currently cared for at the local authority’s expense in high level nursing packages could theoretically still qualify for Coughlan continuing care, before free nursing care comes in for that group in 2003.

Even though the clients wouldn’t save any money, (because full payers and self-funders will already be qualifying for FNC) the local authorities paying for their nursing care would benefit financially.


Free Nursing Care for self-funders, loophole payers and LA placed full payers – entitled since October 1 2001

The first wave of free nursing care is being provided for all those who are through some route or another paying for the full cost of their nursing care. These are

privately contracting persons

LA placed persons who have over £19,000 so count as full payers

and those who are using a cocktail of benefits known as the loophole to pay for care, whilst trying to sell a house, for instance.

The point is that all other people in a nursing home at the moment are either on Preserved Rights levels of benefits which pay for the package, and which depend on the person’s continued accommodation in the home; or local authority placed clients with income and capital which result in a shortfall in the sum available to pay for the care, which the authority makes up.

Since the NHS has not had time to gear up for individual assessments of all those people, guidance suggests that people be put in the most likely band (medium or high, in most cases) and the money paid over accordingly, until the assessment is done. Homes and private clients and their families, and local authorities with full payers on their books need to be discussing, now, what the implications are going to be for the fees, when the homes receive the extra money from the NHS.

Although the suggestion is that some 35,000 should save up to £5000 a year through this measure, It is not stated clearly anywhere in government guidance that people should therefore go ahead and reduce their standing orders or direct debits. It is rumoured that the government has been warned that the fees of nursing homes will just be put up in accordance with the new element available. Local authorities, families, clients, client’s support groups and advocates should guard against this if at all feasible. Everyone needs to be aware that all those in this first wave have the benefit of a binding contract currently in place, even though it may not be a written one. Although these contracts no doubt allow for variation, the variations as to price must be reasonable, and negotiated. If the private sector individuals fee rate for the accommodation and care before October 1st was £x, including the nursing care, it seems unreasonable to us for a nursing home to say overnight that it’s suddenly going up, by whatever band the person is put into, pending their RNCC assessment, just because that new money happens to be available from the State!


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