Eligibility for NHS Continuing Healthcare is based entirely on a person’s care needs, the legal position being that their care home fees should be fully funded by the NHS if their primary need is a health need (for further information about what this test means in practice, I would recommend reading our previous blog ‘NHS Continuing Healthcare: What Makes Someone Eligible’).

Therefore, when making a retrospective claim for NHS Continuing Healthcare, it is crucial that medical evidence about the person’s needs is available. Health authorities will create a Needs Portrayal document that contains all available medical evidence to help them complete their review (note that in Wales, this is called the Chronology of Need, it differs in format but does the same job). This document will have all relevant entries from the medical evidence in date order, so it should reflect the person’s needs and how they may have changed over time. The health authority will then review the Needs Portrayal document and make a recommendation as to whether a person’s needs are sufficient for them to be eligible for NHS Continuing Healthcare. It is therefore vital that a comprehensive review of all available medical evidence is undertaken.

What if records are missing?

If records are unavailable due to the passage of time, there may be challenges when attempting to evidence that the person was eligible for NHS Continuing Healthcare. As discussed above, eligibility is based on a person’s needs and it is not enough to show that someone was in a particular care setting or had a particular diagnosis to meet the test for eligibility, we must demonstrate the type and amount of care provided. If care home records in particular are not available, it is very difficult to evidence the type and amount of care that an individual required on a day to day basis and whether the overall level of need met the test for eligibility. The assessor should take a common sense approach and infer that a certain degree of care was required, however without the records this is difficult.

In situations where records are unavailable, it can be greatly beneficial for claimants to consider whether they have kept any records from the time. For example, any documentation they were given or any diary entries they may have kept, which can be shown to the health authority in order to supplement the limited information in the records.

As part of the review process, claimants will be given the opportunity to provide their perspective of their relative’s needs and discuss the health authority’s findings. This is crucial and can help the assessor to get a better understanding during periods where the records are unavailable, however another issue that can arise is where the records and the family’s perspective contradict each other. In this situation, it can be difficult for assessors to side with families as they must base their decision on the evidence available. Evidence the family may hold from the time will be especially helpful in these situations.