In the wake of the discount rate change, and the consequent need to minimise multiplicands, ensuring the continuation of state funding can have a significant impact on the damages faced by a defendant. NHS funding, being demand led and without reference to financial means, does not have some of the difficulties associated with local authority funding. The same situation arises with periodical payment orders and the incorporation of received funding through indemnities or reverse indemnities.

On the 5 July the National Audit office published a report on its investigation into the management of Continuing Healthcare funding (CHC).

CHC administered is by the 209 Clinical Commissioning Groups (CCG) overseen by NHS England. It is available to persons over 18 who meet eligibility criteria. The report provides useful insights into the process for granting CHC funding and suggests possible challenges compensators may face in the future.

The report, summary and press release can be found here: https://www.nao.org.uk/report/nhs-continuing-healthcare-investigation/

In this short note we provide a summary of key points in the report.

Report summary

  • The Background section (page 12-17) is a useful summary of the “CHC” process. Figure 2 on page 13 helpfully places CHC in the context of all available “state” adult care (including local authority provision); section 1.6 covers the eligibility process including the framework for assessing “needs” for primary health care, usefully summarised in figure 3.
  • The reports states that current CHC funding of £3,607m pa is expected to rise to £5.247m by 2020-21. Against this, NHS England has set goals of reducing spending by £855m (against the future figure) and whilst not fully detailed in the report, initiatives will include:
    • Ensuring more consistent application of eligibility criteria – both initial screening checklists and full assessments[1], and to review the content of those so that fewer are carried out.
    • Better procurement practices around care services, reducing care costs and making savings through better commissioning of care packages.
  • The report makes clear that funding by way of Personal Health Budgets (PHB) are not within the annual figures given above and not within the targeted spending cuts. PHBs are often the source of funding taken into account during damages settlement. However, a decision to fund by way of PHBs is taken after the eligibility assessment and the amount of the budget reflects care costs charged to the NHS. It is possible that any changes to eligibility practices (initial checklist or full assessment) and reduction to the NHS cost of care provision upon which the budget is calculated, with the aim of achieving these savings, may impact on the availability and value of PHBs. In turn that could impact the extent to which they can be brought into account during damages settlements.
  • Notwithstanding the financial aims, NHS England said it did not expect the eligibility for CHC to change as this is mandated in legislation and reflected in the national framework.[2]
  • Wide variation is found between the approaches adopted by CCGs when applying the eligibility criteria. One statistic was a nearly 13 fold difference between CCGs when counting granted CHC applications per 50,000 head of population (within the CCG area). This variation could not be explained by other factors. This is not out of line with our experience of significantly different approaches and interpretations by CCGs on live cases, which may need to be challenged.
  • Letters were received critical of the process, but complaints processes were not fully monitored and insufficient data was retained to understand the reasons why funding was rejected. A problem was highlighted of the large numbers who got through the initial screening, but then failed at the full assessment. That created false expectations of support.

What this means for you?

The report draws on enquiries carried out between February and April 2017, gathering data for all CHC activity. Inevitably that will capture data on a much wider “population” of persons needing CHC than the seriously injured accident victims encountered in catastrophic Injury claims. Allowance has to be made for that when reading it. That said, the wide variation between CCGs in approaching funding decisions is something experienced in live cases and closer control and standardisation of the approach is to be welcomed, but it is possible it may not go the way that assists claimants and defendants.

Although NHS England has no plans to change the eligibility criteria, the review of screening checklists and full assessment procedures to (1) reduce the number carried out and (2) support the savings targets, may see a more difficult climate for grants of funding or personal health budgets in the future.

The approach to the four key characteristics of need (nature, intensity, complexity and unpredictability) coupled with the subjective assessment of need level under each domain (see Figure 3 of the report) can give rise to decisions that require challenge.

Much depends on the claimants incentive for obtaining NHS funding: partial liability cases are obvious ones where there is a shared interest in an appropriate decision being made by the CCG. The following best practices are likely to remain, if not become more, important in the future if the approach to funding becomes more restrictive:

  • Ensuring focus on CHC is high at the very outset of the case, certainly prior to discharge and achieving engagement in the assessment process.
  • Selecting, or requiring, that any Case Manager is fully experienced in, and knowledgeable about, not just the CCG’s statutory process and obligations but that he or she is able to fully take part in the decision making process and aware of the tools to be employed during assessment. This may include challenging the assessments through the complaints processes (also highlighted in the report (see 1.11 page 17).
  • Considering the engagement of an expert in this field to act as advocate, with the claimant’s agreement, during the assessment process, to ensure the approach is right and the claimant’s (and the defendant’s) interests are protected
  • Considering the engagement of a shadow case manager and/or expert in this field if it seems the claimant is not adopting the right approach to maximising chances of receiving funding.
  • If there is a capacity issue, engaging with the claimant’s Deputy who will have an independent interest and duty to ensure sources of income are maximised in the claimant’s best interests.