Local authorities are feeling the strain of the NHS’ deepening crisis, not least in the form of funding social care.

Reports show that private brokers being hired to provide ‘discharge services’ are making millions a year finding care home beds for NHS patients who are fit to leave hospital. Revenues are up by about 75% amongst social care brokerages who have partnerships with NHS organisations and local authorities, helping local councils seek places for patients stuck in hospitals.

So why are local authorities having to turn to brokerages to help with the most basic of functions like patients being discharged from hospital?

In Wales, the Senedd’s Health and Social Care Committee’s recent inquiry concluded that a lack of social care capacity is the biggest contributor to delayed discharges and restricted patient flow through hospitals. The report details the months many patients are spending in hospital purely because they are waiting for a care package – whether that be home care or residential care. This is echoed in England.

But what about when care doesn’t fall under ‘social’, but rather it is assessed as ‘health’ needs? A significant burden could be lifted on local authorities who are footing the funding of care packages when legally it is the NHS’ legal responsibility to take care of this cost.

What people are not made aware of is a source of funding that would take pressure off local authorities called Continuing Healthcare (CHC) – a service offered by the NHS in which they have a legal obligation to meet the full costs of a person’s care home fees, should they be eligible.

If a person requires long term care, the first consideration must be the health needs of a person. For those whose primary need for care is because of their health – as opposed to ‘social’ reasons – then it is the NHS’ responsibility to fully fund their care. Unfortunately, many individuals who should be deemed eligible are turned down for this funding having been incorrectly assessed by the NHS.

A lack of awareness of the funding scheme coupled with guidelines that are often forgotten or applied too restrictively means many more people could be eligible for CHC. The assessment process is also highly subjective, leading to unreasonable decisions and individuals being wrongly denied the funding. This explains why the number of people receiving CHC is falling, despite an ageing population.

It is important to check that an individual has been properly assessed for CHC via a multi-disciplinary team assessment. Every person needing long-term care because they are ill should be assessed by their Integrated Care Board (ICBs) in England or Health Board in Wales.

In the event of an individual being unhappy with the outcome of their CHC assessment, they can challenge the decision through a review procedure and fees can be recovered retrospectively. Many cases are turned down initially, but with persistence a successful outcome can be reached. In fact, the Department of Health statistics show that 22% who challenge at ICB level are successful, with a further 30% at National level.

If a person is not the responsibility of the NHS, they are the responsibility of the local authority. However, unlike the NHS, the local authority can assess the individuals’ ability to pay. Currently in England, if a person has capital over £23,250 (£50,000 in Wales), they will have to meet the full cost of their social care. This includes assets such as property, unless a partner, a relative over 60 or in receipt of some forms of disability benefits, or a child under 18 lives in it, in which case the home will be disregarded. Councils will need to provide individuals with partial funding support if they have savings between £14,250 and £23,250. Should they have less than £14,250, the state must cover the full costs of social care.

For those applying for full funding by the council, a Needs Assessment must be requested, where a council worker goes to a person’s home to ask questions such as how they are managing day-to-day tasks. This identifies the level of support they would benefit from. If a level of care support is needed, the council arranges a Financial Assessment, which identifies one’s financial eligibility for funding support from the local council.

It is also worth noting that there is a clear postcode lottery when it comes to individuals receiving CHC, as illustrated by the quarterly statistics published by NHS England. For example, the number of people receiving NHS CHC in NHS Bury is 230 per 50,000 population as opposed to 19 in NHS Berkshire West. It is also clear that one is more likely to receive CHC in the North of England than in the South.

There are other long-term challenges that have ongoing impacts on local government finance, such as the delayed plans to fund social care properly. Long-term reform is getting increasingly urgent, yet the Government continues to disappoint on this front. We all know that the social care cap – designed to place an £86,000 cap on the cost of a person’s social care fees, beyond which the Government would subsidise the funding – was recently delayed by the Government, dealing yet another blow to the crisis of funding the care needs of an ageing population.

It is therefore more important than ever that the very thin line between healthcare and social care is understood and assessed correctly, as the impact for the individual is the difference between free care and care which is means tested. It is extremely important for individuals and local authorities alike to be aware of their legal rights regarding NHS CHC, which can remove a hefty financial burden of healthcare costs on both parties.

Lisa Morgan is head of the nursing care fee recovery team at Hugh James Solicitors.