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Recently the Department of Health and Social Care (DHSC) made an adjustment to the terminology of paragraph 59 of the National Framework for NHS Continuing Healthcare (NF).
The new version of paragraph 59 states:
a) where that person is, or is to be, accommodated in relevant premises, more than incidental or ancillary to the provision of accommodation which a social services authority is, or would be but for a person’s means, under a duty to provide; or
b) of a nature beyond which a social services authority whose primary responsibility is to provide social services could be expected to provide,
c) and, if it decides that the nursing or other health services required do, when considered in their totality, meet the conditions described in (a) or (b), it must decide that that person has a primary health need.
The old version of paragraph 59 was as follows:
a) are no more than incidental or ancillary to the provision of accommodation which local authority social services are, or would be but for a person’s means, under a duty to provide; and
b) are not of a nature beyond which a local authority whose primary responsibility it is to provide social services could be expected to provide.
While this amendment potentially does not change the core meaning of the section of the NF and in fact emphasises the link between the primary health need test and the quantity and quality test established in the Coughlan judgement, it now appears to specifically state that ‘Part A’ of the test only applies to individuals who are accommodated in residential care.
This issue was specifically addressed by the Care Act 2014 to reflect that ‘Part A’ of the test should be applied equally to individuals in any setting, not just those in residential care homes, as below (Section 22 (1)):
a) doing so would be merely incidental or ancillary to doing something else to meet needs under those sections, and
b) the service or facility in question would be of a nature that the local authority could be expected to provide.
Paragraph 60 of the National Framework is clear that the Care Act applies the legal test to all (not just those in residential care) and that this is how it should be interpreted in NHS Continuing Healthcare. Therefore, we are of the view that the addition of the words ‘where that person is, or is to be, accommodated in relevant premises’ in paragraph 59 puts it at odds with paragraph 60 and creates unnecessary confusion to a set of criteria and rules which are already highly complex. We understand that the reason for the change to paragraph 59 was to bring it in line with Part 6 of the Standing Rules. Whilst this promotes an element of consistency, the Standing Rules have not been updated since 2012 and so use the Coughlan judgement version of the quantity and quality test, rather than the version decreed by Parliament in the Care Act 2014.
Paragraph 59 is significant because it is the only part of the NF which links the primary health need approach with the quantity and quality test, and this link is crucial to the application of eligibility criteria.
Finally, Beacon is concerned that the emphasis has switched to needing to demonstrate that a primary health need exists, rather than it being assumed it does unless it can be shown otherwise.
Overall, we feel that the change to paragraph 59 was unnecessary and has created the potential for confusion. These discrepancies represent a significant issue which Beacon is currently raising with the DHSC.
If you have questions about this amendment to the National Framework and how it might affect you, you can get in touch by completing a contact form, or by calling 0345 548 0300.
