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The experience here at ZODIAC Continuing Healthcare has been that NHS Continuing Health care teams at some Clinical Commissioning Groups across England continue to impose unlawful caps on funding for care at home. This practice forces people to top up the care with their own money. More often, people have had to choose care in a nursing home when they would prefer to be cared for at home, and remain with their loved ones for the time they have left in their life.
Thirteen NHS Continuing Healthcare teams were threatened in March 2018 by the Equality and Human Rights Commission to be taken to Judicial Review if they would not stop imposing illegal caps on the funding for home care, especially discriminatory against older sick people. The Equality and Human Rights Commission requested that the guilty Clinical Commissioning Groups prove to be undertaking steps towards changing their discriminatory practices. The Equality and Human Rights Commission considered that the NHS Continuing Healthcare policies of these Clinical Commissioning Groups were in “serious breach of the Human Rights Act, the Public Sector Equality Duty and the Department of Health and Social Care’s own NHS Continuing Healthcare framework.”
This threat followed an earlier request of more information on care funding practices that the Equality and Human Rights Commission sent in October 2017 to 43 Clinical Commissioning Groups.
Of the 43 Clinical Commissioning Groups first approached, 13 did not provide enough reassurance that their practices were lawful. Hence, the Equality and Human Rights Commission issued its threat of judicial action. Here is the list of the 13 implicated Clinical Commissioning Groups, with links to their NHS Continuing Healthcare team contact details:
Coventry and Rugby
East and North Hertfordshire
Redditch and Bromsgrove
Two months thereafter, in May 2018 the Equality and Human Rights Commission revealed that it had received reassurance from the 13 Clinical Commissioning Groups that they were updating their policies, and that legal action would not be pursued. The news page on the Equality and Human Rights Commission website reads: “The Clinical Commissioning Groups have since demonstrated that they are in the process of revising their policies, meaning further legal action is not necessary at this time. We have asked to see the revised policies to ensure they are lawful and adequately consider equality and human rights implications for their patients.”
As a concluding remark, the web page also report that NHS Haringey Clinical Commissioning Group was the only remaining entity not having responded to the Equality and Human Rights Commission enquiry. This would leave NHS Haringey “open to further action”, the Equality and Human Rights Commission reports.
However, nine months on, all has gone quiet. It seems that the implicated NHS Clinical Commissioning Groups have sorted their act, and have realigned with the law.
Unfortunately, the direct experience of people who have contacted me for help since May 2018 is that they continue to be victims of NHS Continuing Healthcare teams imposing limits to their care budget (what is known as Personal Health Budget). It seems that the Equality and Human Rights Commission’s threat has not been taken very seriously by some NHS Clinical Commissioning Groups.
The essential principle of setting a Personal Health Budget is that the budget should follow a full assessment of needs and a costing of those needs. If you are offered an arbitrary Personal Health Budget not substantiated by an explanation of where those costs arise from, you should demand a rationale for the offer before accepting it.
I want to reassure you that, fighting alongside those people who told me that they had their home care budget capped, we managed to secure increases to Personal Health Budgets that in some cases went from the first offer of an arbitrary cap of £900 per week, to a budget in excess of £1,400 per week. Such an increase is often a game changer, especially for those who need regular night care.