North West London Clinical Commissioning Groups have been developing a blanket policy to impose arbitrary caps on NHS Continuing Healthcare funding: Are you being affected?

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Eight NHS Clinical Commissioning Groups in North West London have been partnering up to develop a joint blanket policy to limit the amount they would spend for care in patients’ home or in care homes under NHS Continuing Healthcare funding, the free care available to people who are deemed to have a primary health need.

Funding through NHS Continuing Healthcare is regulated by the National Framework. This set of guidelines is the only set of rules which every NHS Clinical Commissioning Group must follow to determine the amount of funding necessary to satisfy a person’s health and social care needs, whether at home or in a care home. The National Framework says explicitly that Clinical Commissioning Groups must not use notional costs to set arbitrary limits on care packages.

The news of the proposed policy appeared in mid-January 2019 on the websites of five of the eight NHS Clinical Commissioning Groups that are part of the NHS North West London Collaboration of Clinical Commissioning Groups, namely, Brent, Harrow, Ealing, Hammersmith and Fulham, and NHS Central London. The other NHS Clinical Commissioning Groups part of the collaboration are West London, Hounslow, and Hillingdon. Interestingly, on the website of the NHS North West London Collaboration of Clinical Commissioning Groups itself there is no mention of the policy.

The news refers only to a cap on funding for care at home. However, a read through the policy reveals that it also imposes an arbitrary cap on residential home placements, with or without nursing care provision. The cap is set at a level 10% greater than the standard cost of a care home placement that the locality has managed to negotiate in tenders with local residential care providers. This is in stark contrast to the National Framework provision that “notional costs” should not dictate the monetary level of a care package. The policy says also that it will apply to future care packages, as well as current ones at the point of their annual review.

The new policy exercise comes less than one year after the Equality and Human Rights Commission in March 2018 threatened to take 13 NHS Clinical Commissioning Groups to judicial review if they did not stop imposing illegal caps on funding for home care, especially discriminatory against older sick people. The Equality and Human Rights Commission subsequently revealed that it had then received reassurance from the 13 Clinical Commissioning Groups that they were updating their policies, and that legal action would not be pursued. I have recently written an article where I reported on families telling me that as of mid-February 2019 they were still being victim of NHS Clinical Commissioning Groups arbitrary caps on funding for care at home and in care homes, despite the threat of the Equality and Human Rights Commission.

Of the eight NHS Clinical Commissioning Groups part of the North West London Collaboration, three – Brent, Harrow, and Hillingdon – were included in the list of the 13 threatened to be taken to court by the Equality and Human Rights Commission.

I have read through the new proposed policy, and related FAQs. The 27-page-long draft policy refers to a “person-centred” approach twice. This might suggest that the policy guarantees an individualised approach to funding. Such an approach would require that first a person’s care needs are established, then they are costed, and only at that point a care budget is offered to the person, with an option to negotiate it. The policy attempts to regulate this process.

In practice, from the policy wording, my expectation is that the policy will be used to officially underpin current practice, which I have directly seen being applied, and which I have directly challenged, in Brent, Harrow, and Hillingdon. The eight NHS Clinical Commissioning Groups will continue to offer people a standard weekly budget figure in pounds at the very onset, with negotiation being just an ultimatum with the threat of a set date for eviction from hospital.

The policy timid use of the catchword “person-centred”, contrasts with the word “exceptional” used 10 times in relation to describing in which cases a Clinical Commissioning Group would consider a package of care costing above the blanket cap. The reference to “exceptional cases” implies that in most cases people will not receive a truly personalised budget for care in their own home or in a care home with appropriate facilities.

The policy FAQs reassure us that it will affect only very few of those people who are currently funded and who will be funded through NHS Continuing Healthcare. The likely scenario is one in which, instead, all people deemed eligible for NHS Continuing Healthcare funding will be capped with the rule of notional costs of care plus 10%. Most of these people will take this rule as it is, unaware of its arbitrary nature.

What the FAQs statement means is that the procedures set out in the policy are designed to enforce the arbitrary rule against those very few people who, in the first place, will not accept it, and who will challenge the imposition of the funding cap. And people who are in the know of lawful national funding rules, and have the strength and support to challenge those NHS Clinical Commissioning Groups that ignore the rules, are indeed very few.

I have annotated a copy of the policy with more in-depth arguments for challenging it. To get your free copy of the annotated policy, contact me on the telephone number at the top of this page or email me. If you think this policy might affect you, these arguments can help you build your case against the NHS Continuing Healthcare team of your NHS Clinical Commissioning Group.

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