Commissioning NHS Continuing Healthcare services - support from the social care sector for maximum expenditure polices

We have been advising clinical commissioning groups (CCGs) and their predecessor primary care trusts (PCTs) for many years about policies to cap expenditure on NHS Continuing Healthcare services commissioned both for patients in nursing homes and those receiving their care in their own homes. 

It has become generally accepted that, given that there is not a bottomless pit of money available to fund these services and that commissioners have to make the best use of the resources available to them and take into account equity of provision as well as need, offering a choice of affordable nursing home placements and setting a financial cap on the level of funding that can be spent on the provision of home care is not unreasonable and is therefore lawful.

A case reported in December 2013 concerning the funding of non-residential social care packages has provided support to this proposition.

In R (on the application of D) v Worcestershire County Council (2013), a local authority policy for determining the usual maximum expenditure for non-residential care packages for adults with assessed needs as equivalent to the expenditure on residential care was held to comply with the public sector equality duty under the Equality Act 2010 section 149.

It is worth noting that this council decided that the cap on non-residential care packages should, in the absence of exceptional circumstances, be the equivalent of the cost of residential care. Many former PCTs and CCGs have opted for a slightly softer approach in their NHS CHC policies, allowing an uplift of 10 per cent, or even 20 per cent, on the cost of nursing home care.

The case report also provides a useful reminder of how to comply with public consultation duties when introducing such a policy.

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