The UK’s publicly funded national healthcare system is unlike any other in the world. Accessing NHS funded care is however becoming increasingly difficult as the NHS struggles to meet the demand for healthcare services.
How can our community care solicitors assist?
At Lester Aldridge, we provide specialist legal advice and support to individuals and/or their representatives to help them access health services from the NHS, in a way that meets their needs and preferences.
The types of NHS funding issues we can assist with include:
- Brokering a safe hospital discharge to ensure interim care packages are provided pending completion of long-term needs assessments.
- Advising on eligibility for NHS Continuing Healthcare funding (for Adults) or Continuing Care funding (for Children and Young Persons) and providing representation throughout assessment processes.
- Representation to challenge NHS funding decisions. This may require a request for a review of an eligibility decision in accordance with a Clinical Commissioning Group’s Local Resolution procedure. If the dispute cannot be resolved at a local level, it may be necessary to escalate the matter to NHS England to request an Independent Review Panel is convened to review the decision(s) subject to challenge.
- Brokering directly commissioned care packages or personal health budgets once eligibility for NHS funded care has been agreed.
- Personal health budgets are often a useful mechanism to help personalise care and support and can provide you with more control over your NHS funded care.
- Advising on how to challenge refusals to fund medical treatment.
Click on the links on the right to view more information, download or print our freely accessible NHS provision information sheets.
How can my NHS funded care case be funded?
There are a variety of funding options for community care cases.
Frequently Asked Questions
Any child or adult with an injury, illness or disability, or in later life, is entitled to an assessment of their education (0-25 years of age), health and social care needs. Needs assessments must result in care provision which is sufficient to meet assessed needs.
In general terms, the starting point when considering the needs of a child or adult with an injury, illness or disability, or in later life, is to consider eligibility for NHS Continuing Healthcare (Adults) or Continuing Care (Children and Young Persons).
The reason is quite simply that unless NHS Continuing Healthcare (Adults) or Continuing Care (Children and Young Persons) needs have been considered or established, there is a real risk that a need may not be recognised.
NHS Continuing Healthcare is a non-means tested complete package of ongoing care that is arranged and funded solely by the NHS where an adult (aged 18+), has been assessed and found to have a ‘primary health need’ as a result of an injury, illness or disability. It applies not only to those in later life, but also equally to adults living with a disability who have health needs.
In the case of children and young persons, a Continuing Care package will be required when a child or young person has needs arising from a disability, accident or illness that cannot be met by existing universal or specialist services alone. Any package of Continuing Care is likely to require services from health and social care.
It may be possible to obtain care and support from the Local Authority. Eligibility for Local Authority funded care is dependent on meeting the national eligibility criteria and satisfying the applicable means tests. The rules which govern Local Authority funded care differ for children and adults.
- Care provided by the NHS is non-means tested. This means you will not be charged for services provided by the NHS. It is free at the point of access.
- Care provided by a Local Authority is means tested. A financial assessment will be completed to determine eligibility for Local Authority funded support, and whether any contribution to the cost of a care package is required.
- For support provided to a child or young person with disabilities, it is at the Local Authority’s discretion as to whether to charge for services provided. It is therefore essential to check your Local Authority’s policy, usually available on their website.
The NHS is responsible for meeting healthcare needs. A Local Authority is responsible for meeting social care needs and coordinating services to ensure education needs are met.
The fundamental principle is that any person (aged 16+) must be assumed to have the capacity to make a decision, unless it is established otherwise. Capacity is date, time and decision specific because it can change as a person’s condition fluctuates.
If there is a concern about whether the person has capacity to make a decision (for example, about whether an adult should receive a package of care at home, or in a residential care home), their capacity must be assessed.
There is a legal test to determine whether a person has or lacks capacity. There are rules about who is entitled to make decisions once capacity has been assessed.
See more about capacity.
Yes. For children and young people under the age of 16, decisions in relation to education, health and social care are made within the scope of parental responsibility unless it is demonstrated that the child has Gillick competence.
The length of time it takes to resolve a problem really depends on the type of community care issue and the approach taken by the public body.
For example, in our experience a request to NHS England to convene an Independent Review Panel to review a Clinical Commissioning Group’s failure to award NHS Continuing Healthcare can typically take between 12 to 24 months.
In circumstances where a claim arising from catastrophic injury exists or potential medical negligence, our specialist injury lawyers work closely with our Community Care experts to provide a holistic approach to claims management meaning that you may be able to receive assistance to secure care and support from statutory services whilst a potential claim is being investigated.
Find out more about personal injury and medical negligence claims.
There are a number of ways to challenge the decisions of public bodies. These may include:
- By making a complaint. This may be to the relevant public body (such as a Local Authority or Clinical Commissioning Group) or the Ombudsman (for Health or Local Government & Social Care).
- By lodging an appeal in accordance with an established appeals procedure. For example, refusals to award NHS Continuing Healthcare (for Adults) must be challenged through the Local Resolution procedure, and where necessary, by requesting NHS England reviews the decision through an Independent Review Panel.
- By issuing Court proceedings. For example, a health & welfare dispute regarding what course of action is in a person’s best interests, may require an application to the Court of Protection, or a failure by a Local Authority and/or Clinical Commissioning Group to provide education, health and/or social provision suitable to meet need may require an application for Judicial Review to the High Court. The appropriate way of challenging the decision of a public body is case dependent.
In most cases there is a time limit to challenge the decision of a public body. Sometimes this is referred to as the ‘limitation period’.
The applicable time limit depends on the decision and method used to challenge the decision.
- An unsatisfactory response to a complaint by a Local Authority or NHS Body must be escalated to the Ombudsman (for Health or Local Government & Social Care) within 12 months of the date of the complaint response letter.
- A decision to refuse NHS Continuing Healthcare (for Adults) by a Clinical Commissioning Group (CCG) must be appealed within 6 months of the date of the decision letter. Some CCGs impose additional requirements to challenge, such as a requirement to lodge a ‘Notice of Dissatisfaction’ within 2 weeks of the decision letter. It is therefore essential to check the responsible CCG’s policy carefully.
- A decision which satisfies the grounds and criteria for Judicial Review proceedings must be challenged by issuing Court proceedings at the Administrative Court of the High Court within 3 months of the date of the decision.
The time limit to challenge the decision of a public body is therefore case dependent.
The procedure by which the lawfulness of decisions, policies or actions of a public body can be challenged in Court on the grounds of irrationality or unreasonableness, illegality, procedural unfairness, or on the basis of an alleged breach of human rights.
Judicial Review is not an appeals process and cannot be used to challenge a decision, policy or action that you simply do not agree with. It is a remedy of last resort. In most circumstances Judicial Review can only be considered once all the other ways in which a dispute can be resolved have been exhausted, unless there are urgent or exceptional circumstances.