NHS CONTINUING HEALTHCARE
Once a young person reaches 25 the EHCP Plan falls away. Funding is then from Adult Social Care or NHS Continuing Healthcare. Exactly the same procedure for NHS Continuing Healthcare applies at 26 as at 86 or 106.
Section 22 of the Care Act 2014 prohibits Adult Social Care from providing services or facilities that should be provided by Health. NHS Continuing Healthcare is non-contributory, so the inheritance position is better, because Adult Social Care can run Discretionary Trusts down to £23,000 pretty quickly, if expensive provision is needed.
If dealt with before 25 the mediation procedure in the Children and Families Act 2014 and the current two year Health and Social Care Trial in the SEND Tribunal are helpful, due to their speed (30 days for mediation, and 12 weeks in the SEND Tribunal). Clinical Commissioning Groups may try and insist on their own procedure pre-25, however in Administrative Law legislation trumps Regulation and they have already lost on this issue.
NHS Continuing Healthcare can be applied for at 18. If left to 25 to resolve the point, the NHS Continuing Healthcare procedure in the event of a dispute is:
Exhaust Local Review Processes.
Ask Board for Independent Review Panel (they scrutinise and review).
Parliamentary Health Service Ombudsman.
In other words, this is a “lose the will to live” labyrinth without robust judicial scrutiny.
The relevant Statutory Regulation is the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 No 2996 and the guidance is the National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care. The current guidance is dated 2012, however new guidance was published in March 2018 and takes effect from October 2018. The guidance is substantially the same, although the paragraph numbers change.
The first step is a screening checklist. It’s like tick box credit scoring, you need either three highs or one severe to move onto the second stage. The second stage comprises completion of the Decision Support Tool.
Ask Board for Independent Review Panel (they scrutinise and review) Exhaust Local Review Processes Parliamentary Health Service Ombudsman.
The “domains” in the Decision Support Tool appear to be geared towards the elderly and not young people with severe, complex and unpredictable Autistic and Mental Health conditions.
A multi-disciplinary team with relevant skills and knowledge should complete the Decision Support Tool (Regulation 20(5) and page 39 March 2018 guidance). The guidance refers to learning disabilities and brain injury and the need to involve a Speech Therapist if significant communication difficulties are indicated.
Guidance states that well managed needs are still needs unless they have permanently gone.
Experience suggests a lumping together of those with Autistic Spectrum Disorders, severe Learning Difficulties and Mental Health issues irrespective of need and severity despite anti-discrimination guidance.
The Court of Appeal considered the dividing line in the case of the Secretary of State for Work and Pensions v Slavin (by his Litigation Friend Slavin) 2011 EWCA [Civ]1515. Where provision is supervised and under the direction of doctors or qualified nurses (that definition plainly includes HCPC Clinical Psychologist, HCPC registered Speech & Language Therapists and HCPC Occupational Therapists who are sensory integration trained), then the provision is medical treatment not normally provided by Adult Social Care under the Care Act 2014. These are provisions in law provided by the Health Service.
Provision may be in Section F of the EHC Plan. In SENT v London Borough of Bromley 1999 ELR 260 CA the Court of Appeal held that as between education and Health there was a shared territory (295F – 296E).
Analysis of existing provision and appropriately targeted independent expert reports are required to resolve these issues.