NHS continuing healthcare - top up payments

We have been asked by a Care Home, whether, if a patient is in receipt of NHS CC funding, the total cost of the care has to be provided by the NHS, even though, in reality, the payment received from the NHS doesn’t cover the cost of the care received. Is it possible to get round this by charging an ‘amenity charge’ or ‘additional lifestyle payment’ as a top up.

Continuing Health Care:

CHC is funded entirely by the NHS. It is not possible to top up NHS continuing healthcare packages like you can with Local Authority care packages.

A top up can only be paid when a person is in receipt of NHS CC as long as it is not for care. 
The only way that the NHS CHC package can be topped up privately is if you pay for additional private services on top of the services you get from the NHS. These private services should be provided by different staff and preferably in a different setting eg hairdressing and so on.
 
As an example, if someone wants a bigger room or an en-suite room and you can show that there is a reason why this is needed, then it should be funded by CHC. Otherwise it is unlikely that you can pay for that privately.

Section 117 MHA 1983 After Care:

You will receive free after care if you have been in hospital under Section 3 (and others) of MHA 1983

Funded nursing care:

A case brought before the Court of Appeal (COA) in February 2016 called ‘Forge Care Homes Limited and others R (on the application of) v Cardiff and Vale University Health Board and others’ raised issues over who pays for nursing care of care home residents in Wales. At issue was who pays for ‘social care’ tasks carried out by registered nurses in a care home for residents who are eligible for funded nursing care (FNC). The court ruled that the responsibility for funding the ‘social care’ tasks of the nurse’s role falls on local authorities not the NHS. The case involves Welsh legislation but the Court of Appeal observed and the Department of Health accepted that this would also apply in England. In summary the case relates to the issue of who should pay for the cost of a registered nurse in the care home when those nurses are not providing healthcare (required and paid for by the NHS as a result of FNC) 100% at the time. Although care homes require a registered nurse on site, not all their time will be spent providing health care. Time may be spent providing social care or undertaking management and administration and not providing health care. 

The judge at first instance ruled that the cost of the nurse, while carrying out social care was the responsibility of the NHS on the basis that the nurse needed to be there 24 hours a day in order to meet a health need, even if that nurse carried out social care tasks as well. The COA disagreed. It considered that the proportion of the tasks performed which constituted social care was the responsibility of local authorities. The basis of FNC draws a distinction between whether the services provided are a social care task or a health task. 
On this basis the local authority’s argument that what the nurse does must be a health task just because she needs to be on the premises, did not make sense to the COA. They confirmed that the costs could therefore be split.

Permission has been sought to appeal to the Supreme Court. 

However, for the moment, it would appear that what used to be provided free by the NHS could now be seen as a Local Authority’s responsibility and this case concludes that the NHS can decide what sort of things do have to be done by registered nurses and what tasks don’t, for funding purposes in a nursing home. This means that either the local authority or self funders will be paying for everything else that is not considered a health care matter.

It is also possible that the concept of what is ancillary and incidental to social care, as a test of what is not beyond a local authority’s remit, has been made wider by the Care Act and now applies expressly in the community as well as nursing homes.

In short therefore the COA  has ruled that the responsibility for funding the social care tasks of the nurse’s role falls on Local Authorities not the NHS. Some services need to be provided by a nurse and some do not, having regard to1) the nature of the service and 2) the circumstances in which they are provided.

It is for the NHS to determine what requirements are reasonable to provide under FNC.