This question is still relevant, because there are 2 years’ worth of patients and clients who have been entitled, since Coughlan, to challenge the criteria in force at the time, or the interpretation and application of those criteria. We predict that cases will be wending their way through the courts for some time to come. There are also another 18 months to go until the rest of LA clients qualify for s49 free nursing care. In that time local authorities, even if not the clients, could be benefiting by getting people assessed as being over the Coughlan line, and thus transferring their packages to the NHS. A draft form is reproduced at the end of this analysis which could be used as a basis for getting the equivalent of free nursing care from Health Authorities before it becomes the legal right of local authority placed and funded clients.
When Preserved Rights people come over to local authority responsibility, April 2002, some consensus by which their level of nursing needs will be especially important because these people will not have had proper care management and will be bound to have deteriorated since they acquired their preserved rights.
The trouble with the Coughlan decision for care managers and budget holders was that the judges on the one hand suggested that when someone was over the line, there was no power in a local authority to purchase the necessary services for them – and at the same time suggested that it was not everybody over the line who deserved to have their full packages (ie including their basic nursing, social care and accommodation and board) paid for by Health. The Court hinted that those people would be those whose needs are so complex or fluctuating that it is not possible even to separate out what is a health need from a social care need, when considering whether their needs are primarily health related, or merely very complex social care needs with incidental nursing needs. In such cases, the Coughlan judges said that Health and Social Services should either come to a reasonable division of financial responsibility, or else Health ‘should pay for the lot’. This made the argument that there is no legal power under which social services can even contract with a nursing home, once someone is over the ‘incidental and ancillary line’ much harder to maintain, because it raises the question as to which of the two agencies is actually going to be doing the contracting for the placement (with the other merely contributing money towards the necessary services and attention). It also raised difficult issues of who should do the contracting for those separate elements. Should the package be split into separate contracts with the provider?; (the LA’s contract being for accommodation, social, personal and basic nursing care and the HA’s contract being for extra nursing hours) – or were both agencies supposed to do a joint contract, or one contract on behalf of the other for the whole package?
We predicted that if Health were to do the contracting, the person’s welfare benefits situation would be affected – the nursing home would count as equivalent to hospital accommodation and benefits would be reduced. This has turned out to be the compromise which the government has adopted, by distinguishing between packages which are entirely paid for by Health, and those where there is a mixture of free nursing care and services which are not free, because they are social services.
FORMAL REQUEST to [the particular HA] FOR NURSING CARE FUNDING
A decision is sought in favour of (tick as applicable):
Full NHS funding and arrangement o
(including accommodation)
Part NHS funding o
(state band) o o H M
in respect of:
Patient/Client Name:
………………………………………………………………………………………..
Current Position: (state applicant’s whereabouts and if already in a nursing home, the contractual parties to the placement)
…………………………………………………………………………………………………………….
Consultant:…………………………………………………………………………………………..
Provisional Discharge Date:…………..……………………………………………
Multi-Disciplinary Team assessment / review: (underline as appropriate)
Date …………………………………………..
Outcome: (tick as applicable)
HA funding + arranging HA/LA funding LA funding
o o o
Consultant’s reasoning:
See attached response / none supplied (delete as applicable)
[Name of Authority]’s / Applicant’s or relative’s / carer’s / provider’s contentions as to nursing needs: (underline as appropriate)
See attached response / none supplied (delete as applicable)
In the opinion of this authority, the applicant’s nursing needs are of / have now deteriorated to (tick as appropriate) the level shown below, and are regarded as not feasibly met through services which are merely ancillary or incidental to social care services:
| (A) High | (B) Medium | (C) Low | |
| (D) Skill | |||
| (E) Range | |||
| (F) Frequency | |||
| (G) Intensity | |||
| (H) Continuity |
Evidence in support of contentions (state whether attached):
‘Pen picture’ of a day/week in the life of the applicant: o
Expert Opinion: (state whose, and their qualifications o
or experience)
Risk Assessment by potential providers: (state whose, o
and cost implications)
Other: (how many minutes a day ‘RNCC’ needed) o
OUTCOME of request for nursing care funding:
Please copy for your records and return to:
……………………………………………………..
Patient/Client Name:
…………………………………………………………………………….
o Funding granted: (state level or duration of period)……………..
o Funding denied:
(if refusing the application for funding, please state reasons for regarding the applicant as outside [the particular HA’s] criteria for NHS support)
Thank you for your co-operation in this matter.