Guidance

Dealing with requests for assessments of previously unassessed periods of care from 1 April 2012

Published 14 December 2023

Applies to England

Introduction

NHS continuing healthcare (CHC) is a package of ongoing care arranged and funded by the NHS. It’s for adults who have been assessed as having a ‘primary health need’ (more information can be found in the Glossary).

The Department of Health and Social Care (DHSC) is responsible for NHS CHC policy and legislation. This includes the main piece of guidance on NHS CHC, called the National framework for NHS continuing healthcare and NHS-funded nursing care (the ‘national framework’).

The national framework sets out the principles and processes guiding NHS CHC and NHS funded nursing care (FNC). It supports practitioners across health and social care to undertake assessments and deliver NHS CHC and FNC appropriately.

Integrated care boards (ICBs) are responsible for the operational delivery of NHS CHC and must have regard to the national framework when carrying out their functions. NHS England oversees ICB delivery of NHS CHC and ensures that local systems operate effectively.

DHSC has published public information leaflets which explain the process used to decide whether someone is eligible for NHS CHC. These are available in several languages.

See NHS continuing healthcare for further information for the public on NHS CHC, including where to access information and support services.

This guidance deals with previously unassessed periods of care (PUPoCs). These refer to a specific request to consider eligibility for a past period of care where there is evidence that the individual should have been considered for NHS CHC eligibility, but was not considered at the time, and the individual has funded that care either in full or in part. See the section ‘Definition of a previously unassessed period of care’ for more information.

This guidance sets out how individuals can make a request for a PUPoC assessment and how an ICB should approach and address the request.

An ICB should generally only consider requests made for periods of care after 1 April 2012. See the section ‘Relevant dates regarding requests’ for more information.

This guidance should be read in conjunction with the national framework. This guidance reflects input from the Parliamentary and Health Service Ombudsman. It has also been developed using feedback from organisations with expertise of NHS CHC policy and implementation and individuals who have experience of applying for NHS CHC.

There are 2 main audiences for this guidance. The first is ICBs, who should follow the guidance to support a consistent approach to PUPoC requests across all ICBs in England. The second is individuals and/or their representatives who are considering making - or have made - a PUPoC request, to provide information about the process.

Any individual wishing to make a request for an assessment of a PUPoC should contact their local ICB to find out more about the process. Find your local ICB.

This guidance is correct at the time of publication. However, as it is subject to updates, ICBs should use the links provided in this document to confirm the information they are sharing with the public is accurate. If any guidance referred to in this document is updated, we will endeavour to update the relevant links as quickly as possible.

Key definitions

NHS CHC is a package of ongoing care that is arranged and funded solely by the NHS where the individual has been assessed and found to have a ‘primary health need’ as set out in paragraphs 55 to 67 of the national framework (more information can be found in the Glossary). This care is provided to an individual aged 18 or over, to meet health and social care needs that have arisen as a result of disability, accident or illness.

NHS FNC is the funding provided by the NHS to care homes with nursing to support the provision of nursing care by a registered nurse. In all cases individuals should be considered for eligibility for NHS CHC before a decision is reached about the need for FNC.

PUPoCs refer to a specific request to consider eligibility for a past period of care where there is evidence that the individual should have been considered for CHC eligibility, but was not considered at the time, and that individual has funded that care either in full or in part.

See the Glossary for the full list of definitions used.

Definition of a previously unassessed period of care

A request for a PUPoC assessment refers to a request for an ICB to consider NHS CHC eligibility where the ICB had responsibility for an individual, for a specific past period of care, where:

• there was no consideration of NHS CHC eligibility by the relevant ICB for that individual during the past period of such care
• that individual had funded that past period of care in full or in part
• there is appropriate, objective evidence that the individual should have been considered for eligibility for NHS CHC in accordance with The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (as amended) and the national framework

Further guidance on identifying appropriate PUPoC requests, including details on complex scenarios, is set out in the section ‘Identifying an appropriate request.’

Relevant dates regarding requests

ICBs should generally only consider requests for assessments of a PUPoC for care provided from 1 April 2012 onwards.

This is because in November 2007, the opportunity to request a review of where the majority of care had taken place prior to 1 April 2004 was closed through a ‘close down’. A close down exercise provides a cut-off date to request a review where the majority of care had taken place prior to a set date.

A further ‘close down’ was announced on 15 March 2012, relating to requests for assessments for PUPoCs starting between 1 April 2004 and 31 March 2012.

This means that there should be very few PUPoC cases in relation to periods of care before 1 April 2012 that have not already been considered, given the previous close downs. However, ICBs should consider whether there are exceptional circumstances that mean consideration should be given to requests covering periods of care provided prior to 1 April 2012. It is expected that these instances will be rare.

Responsibilities of integrated care boards

The legal responsibilities of ICBs are set out in ‘The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012’ (as amended). These regulations, also referred to as the ‘standing rules’, stipulate that a ‘relevant body’ (such as an ICB) has a duty to take reasonable steps to ensure that an assessment of eligibility for NHS CHC is carried out in all cases where it appears to the ICB that there may be a need for such care.

The standing rules also require ICBs to have regard to the national framework in their delivery of CHC, which includes completion of NHS CHC assessments of PUPoCs.

ICBs should consider all appropriate requests for PUPoCs (see the section ‘Identifying an appropriate request’) and deal with them in a timely manner, taking into account the relevant dates, timeframes and process set out in this guidance.

ICBs are responsible for requesting and reviewing evidence relating to all PUPoC requests. Where individuals are able to produce evidence in support of their application, this may speed up the process (see Appendix 1).

ICBs should have clear arrangements in place with other NHS organisations (for example, foundation trusts), social services authorities, and independent or voluntary sector partners to ensure that the processes outlined in this guidance operate effectively.

All NHS CHC processes should follow a person-centred approach. This means placing the individual at the centre of the assessment and decision-making process, as outlined in paragraphs 68 and 69 of the national framework.

ICBs are legally required to follow the Accessible Information Standard, which sets out a specific, consistent approach to meeting the information and communication support needs of individuals with a disability, impairment or sensory loss.

Making a request for an assessment

Individuals should contact their ICB for information about the process for making a PUPoC request. The ICB should then send them the application form (Appendix 1) to be completed.

If individuals making an application would benefit from support or advice with completing this form, they should consider speaking with a health or social care professional, or someone who knows about their care needs or health situation.

The individual should then return the completed application form and any additional evidence to the relevant ICB for consideration, as detailed in the next sections.

The application form may be completed by different people in different scenarios. For example:

• an individual can make a request for themselves
• an individual or third party can make a request on behalf of another individual for whom they have authority to act

Identifying an appropriate request

Responsible commissioner

As a first step, the ICB should establish whether or not it is the correct body to deal with the PUPoC request by making sure it was the responsible commissioner for the individual for the period being requested. If it is not the responsible commissioner, the ICB should inform the applicant and the relevant ICB of the request. The relevant ICB should then proceed to review the request. The rules around responsible commissioner arrangements are set out in the NHS England Who Pays? guidance.

Identifying whether a PUPoC request is appropriate

Once the ICB has determined that it is the responsible commissioner for the PUPoC request, it should complete the following checks to ensure the PUPoC request is appropriate and needs to be investigated further.

If there was a consideration of eligibility for NHS CHC during the past period of care

If an ICB finds evidence that the individual had been previously considered for NHS CHC - for example:

• via NHS CHC checklist
• where a decision was made not to undertake an NHS CHC checklist or assessment

then the period was considered at that time and no further assessment is necessary.

Where there is written evidence that the individual, or a third party authorised to act on behalf of the individual, refused consent for an assessment or screening for NHS CHC, the ICB may choose not to accept a new request for assessment of the same period - provided the ICB took reasonable steps to carry out an assessment in the circumstances, at that time.

The steps that the ICB should reasonably have been expected to take will depend on the individual circumstances.

If any periods are not covered by the NHS CHC checklist and a change in need has been identified, then this should be treated as a potential PUPoC and investigated further. For example, if an NHS CHC checklist was carried out at a point in time and following this there was an identified change in need which was not captured by any subsequent checklist or assessment, then this should be treated as a potential PUPoC and investigated further.

If the individual has any concerns with the manner in which a previous NHS CHC checklist or assessment was carried out, including that the ICB did not have regard to the national framework, then the individual should follow the NHS complaints procedure.

In cases where the individual was previously considered for NHS CHC but was not informed of this consideration at the time, the individual should now be informed. If the individual is unhappy with the decision, they should follow the NHS complaints procedure, as above.

If there was an NHS CHC full assessment completed during the past period of care

If an ICB finds evidence that the individual has previously been found not eligible for NHS CHC following a full assessment, the period is already assessed and no further assessment is necessary. The ICB should inform the individual that the ‘individual requests for a review of an eligibility decision process’ should have been followed, as set out in paragraphs 212 to 227 of the national framework, at that time.

If any periods were not covered by the assessment at the time and there has been a change in need identified, then this should be treated as a potential PUPoC and investigated further. Any periods of care which have already been assessed previously should not be assessed again.

If the individual was in receipt of NHS FNC during the past period of care

If an ICB finds evidence that the individual was in receipt of FNC during the past period of care with regular FNC reviews, which considered potential eligibility for NHS CHC, the period is already assessed and no further assessment is necessary.

If the individual was in receipt of FNC but there was no prior consideration of eligibility for NHS CHC then this should be treated as a potential PUPoC and investigated further.

Note that short periods in a care home providing nursing care of less than 6 weeks can be considered urgent nursing care without consideration of NHS CHC, as outlined in paragraph 30 of NHS-funded nursing care practice guidance.

If the individual was in receipt of FNC but regular FNC reviews were not undertaken and there has been a change in need identified, then this should be treated as a potential PUPoC and investigated further.

Communicating whether or not a PUPoC request has been accepted

Once a decision on whether a PUPoC request is appropriate is made by the ICB, the individual should be informed in writing as soon as possible.

This should be preceded by the individual’s preferred form of communication where appropriate. Read further information on the Accessible Information Standard.

This written confirmation should include:

• the decision on whether or not the PUPoC request is appropriate, and therefore whether or not the ICB will proceed to gather the records and complete a checklist and/or full assessment of eligibility for NHS CHC for the past period of care
• the reasons for the decision
• a copy of any evidence supporting the decision
• details of who to contact if the individual wishes to seek further clarification
• the individual’s (and, where appropriate, their third party and/or representative’s) rights under the NHS complaints procedure if they remain dissatisfied with the ICB’s decision

Processing a request

Once the ICB has confirmed that it is the responsible commissioner and that the PUPoC request is appropriate, it should carry out the following steps to process the request.

Consent and authority to act

As with current NHS CHC assessments, consent is required to give third parties authority to act or for information to be shared with them (see Appendix 2).

Any request that is not accompanied by the individual’s instruction for a third party to act on their behalf should be logged and acknowledged but no further action taken if the third party cannot produce its authority to act within 28 days. If the 28-day timeframe has passed, the ICB should inform the applicant that the case will be closed and a new application must be submitted in order to restart the process (unless paragraph 52 below applies).

Once the authority to act has been received, the ICB should advise the third party of the next stage of the process.

If the individual lacks capacity at the time of application, and the claim has been made by a third party, they will need to show they have appropriate authority to act on behalf of the individual through one of the following:

• lasting power of attorney registered with the Office of the Public Guardian
• a deputy and/or receiver order from the Office of the Public Guardian or the Court of Protection

If the applicant cannot satisfy any of the above-mentioned criteria, the ICB should consider the Mental Capacity Act 2005 to decide if a best interests decision on whether to proceed with the PUPoC process should be made. Evidence as to the individual’s lack of capacity will be required.

If the individual is deceased, there must be sufficient proof that the representative is an executor or administrator of the estate, or someone who may have a claim arising from the death. This proof must be returned with the consent and application forms. If the ICB does not receive this proof, they can request this documentation to be provided within 8 weeks. The ICB needs to advise the representative of this timeframe when the proof is requested. Once this documentation has been received, the ICB should advise the representative of the next steps.

While it is reasonable to allow 8 weeks for the provision of documentation, and after such time the application could be considered withdrawn, there may be exceptional circumstances in which ICBs should consider extending this timeframe - for example, in the event that there is a delay in obtaining a grant of probate or letters of administration or for individuals living in remote, rural and island locations. If the 8 week timeframe has passed, the ICB should inform the representative in writing and confirm the status of the application.

Where an individual is seeking to request a PUPoC assessment on the basis that they are someone with a claim arising out of the person’s death, they will need to demonstrate to the ICB what that claim is before the ICB can progress the assessment. Sufficient evidence will need to be provided before the ICB can determine whether such a request is reasonable. Any additional information which is prepared in relation to any assessment will form part of the deceased’s medical records, and care should be exercised when considering sharing this outside of the immediate assessment team.

See Appendix 2 for further guidance on establishing authority to act and information sharing for deceased individuals.

Completing an assessment of eligibility

ICBs should use the template NHS CHC PUPoC application form (see Appendix 1) which should be sent to the applicant along with a consent form for information sharing (if applicable). ICBs should request that these be returned to them within 28 days.

Timeframes

ICBs should introduce their own reasonable and proportionate timeframes for responding to PUPoC requests, taking into account relevant factors - for example, the length of the period of care, access to health and care records and local workforce arrangements. These need to be clearly communicated to applicants with regular and timely updates.

An example of best practice where the duration of the care period to be reviewed was one year or less, would be for the ICB to complete PUPoC requests within 6 months of the date that the ICB received the satisfactorily completed application and consent forms.

For PUPoC requests where the duration of the period of care exceeds one year, the request should not take longer than 12 months to complete, except in exceptional circumstances.

Gathering the evidence

ICBs will need to collate available, relevant evidence for the assessment. For example, if the individual was in a care home, then care home records relevant to the claim period should be collected, in addition to:

• GP records
• hospital records, if applicable
• social care assessments
• any notes from other NHS services (such as community mental health or speech and language therapists), as appropriate
• any documentation collated by the individual or third party, including family members

ICBs and individuals should be aware that records and evidence can be in a paper or electronic format and that digital records may speed up the assessment process. The evidence gathering should be relevant and proportionate to the period of care to be assessed and focused on evidencing all of the individual’s health and social care needs related to the care period.

ICBs should be able to provide evidence about attempts made to gather information required for the assessment.

ICBs should be aware of Regulation 21 of The Private and Voluntary Health Care (England) Regulations 2001 and how it relates to the retention of records. Further information is also available on the NHS website: Access to the health and care records of deceased people.

ICBs should therefore make a request for relevant records as soon as possible after identifying that a PUPoC request is appropriate, to establish the availability of such records.

Evidence from the individual and/or third party

The following evidence may help to expedite the assessment process, if available to the individual or third party at the time, or following submission, of the application:

• evidence of care needs (for example, care home records). However, if this cannot be provided by the individual then the ICB will need to attempt to source this evidence

• evidence of payment for care (for example, receipts, bank statements). (Note: while invoices may not be considered evidence of payment, they may be helpful in gathering a full picture of the claim period)

Reviewing the evidence

A needs portrayal document can help to collate the information required to assess an individual’s needs and should be completed by ICBs when processing a PUPoC request. ICBs may choose to use the national template (see Appendix 3). The needs portrayal document should include all the relevant information from the available evidence to build up a comprehensive picture of the individual’s needs across the whole time period. The evidence should be compiled in chronological order, ideally broken down into the different care domains. The assessor completing the needs portrayal should have the appropriate skills and be trained in how to conduct NHS CHC assessments.

Once completed, the assessor should share the needs portrayal document with the applicant to obtain the applicant’s views, and gather any additional evidence the applicant may wish the ICB to consider, to establish a comprehensive picture of the individual’s needs. The applicant should be asked to respond within 28 days, where possible, to allow timely completion of the PUPoC request.

The checklist

ICBs may then screen the PUPoC request using the current version of the NHS CHC checklist in accordance with the national framework.

The checklist is a screening tool which will help the ICB determine whether a full assessment of the past period of care is required. The threshold of the checklist is set intentionally low, to ensure that all those who may be eligible for NHS CHC proceed to a full assessment.

If the claim spans a few years, then the checklist should be applied periodically, either where there is significant change in needs, or annually.

Following completion of the checklist, there are 3 options:

• the checklist indicates that no full assessment is needed for the entire claim period
• the checklist indicates that a full assessment is only needed for part of the claim period
• the checklist indicates that a full assessment is needed for the entirety of the claim period

The following actions should be taken for each of the above scenarios:

If no full assessment is required for the entirety of a claim period, the applicant should be advised in writing and reasons given, including a copy of the completed checklist. The letter should explain the next steps. If the applicant is dissatisfied with the outcome, they can complain via the NHS complaints process as set out in paragraphs 132 and 133 of the national framework.

If a full assessment of part of the claim period is required, the ICB should write to the applicant to explain the decision and inform them of the period of the claim that will be considered. The ICB should follow the steps set out in the next section to undertake the NHS CHC full assessment process for the relevant claim period. If the applicant is dissatisfied with the outcome for the remainder of the claim period, they can complain via the NHS complaints process as set out in paragraphs 132 and 133 of the national framework. More information on dispute resolution can be found in the section ‘Individual requests for a review of an eligibility decision’.

If a full assessment of the entire claim period is required, the ICB should follow the steps set out in the next section to undertake the NHS CHC full assessment process.

The NHS CHC full assessment process    

Where the checklist indicates that a full assessment of part or all of the claim period is appropriate, the completed needs portrayal should then be used to complete the decision support tool (DST) for that period (the current version of the DST should be used to process PUPoC requests). The DST must be completed by a multi-disciplinary team (MDT), as arranged by the ICB and in accordance with the national framework.

In accordance with regulations, an MDT in this context means a team consisting of at least:

• 2 professionals who are from different healthcare professions
• one professional who is from a healthcare profession and one person who is responsible for assessing persons who may have needs for care and support under part 1 of the Care Act 2014

For further information on MDTs and the NHS CHC assessment process, see paragraphs 139 to 143 of the national framework.

If a claim period spans a number of years, then the claim period should be broken down into manageable sections - for example, 12 months - with the eligibility criteria applied to each separate timeframe. However, there may be a significant event or clear deteriorations (or improvements) that will determine each period. For example, if after the initial 13 months the individual has a stroke, or a serious pressure sore, then this may be a good point to split the periods under consideration.

It is important that the individual’s own view of their needs, including any supporting evidence, is given appropriate weight alongside professional views. The MDT should also give due regard to well-managed conditions when considering the 4 characteristics of need and making an eligibility recommendation on primary health need. More information on ‘well-managed needs’ can be found in paragraphs 162 to 166 of the national framework.

As with standard NHS CHC assessments, the MDT will then make a recommendation to the ICB which the ICB should verify in all but exceptional circumstances.

The ‘primary health need’ test (see paragraphs 55 to 67 of the national framework) must  be applied, which includes the following considerations: to ensure that the quality and quantity of care required was not more than the limits of local authority responsibilities, the ICB must consider whether the nature, complexity, intensity or unpredictability of the individual’s needs, taken as a whole, would have indicated a ‘primary health need’.

The decision

Once the ICB has made a decision regarding whether or not the individual was eligible for CHC during the past period of care, they should write to the applicant with a detailed rationale for the decision. A copy of the needs portrayal, if used, and DST should be sent with the decision letter.

If the ICB decides that the individual was eligible for all or part of the period under consideration, the ICB should make arrangements to make a reimbursement payment promptly in line with relevant published guidance, and inform the individual and/or their representative or family. Proof of identity should be provided before payment is made.

The reimbursement payment should be made to the individual, or their estate, by the ICB with the aim of restoring the individual to the financial position they would have been in, had NHS CHC eligibility been agreed at the appropriate time. The payment should therefore reimburse the individual for the care costs incurred for the relevant period, plus interest.

When making reimbursement payments, ICBs should employ a transparent rationale and ensure they fully consider the individual circumstances of each case, taking legal advice where necessary. ICBs have the discretion to consider making ‘ex-gratia’ payments, over and above the care costs and interest, but these are expected to be exceptional.

If the ICB decides the individual was not eligible for NHS CHC funding for all or part of the period under consideration, then the decision letter should be sent to the applicant with details of who to contact should the applicant disagree with the decision. The principles on individual requests for a review of an eligibility decision are set out in paragraphs 212 to 227 of the national framework.

Further information on individual requests for a review of an eligibility decision can be found in the next section.

Individual requests for a review of an eligibility decision

For all decisions made following the NHS CHC full assessment process, set out in the sections above, there is a 3-stage review process in place for individuals who disagree with the ICB’s eligibility decision. This process also applies for any decisions about a PUPoC.

Local resolution

The first stage is for an individual, their family or representative to ask for a local review, which should be addressed to the relevant ICB (as set out in paragraphs 214 and 215 of the national framework).

All ICBs must have an NHS CHC local resolution process in place and respond to requests for review in a timely manner.

Independent review

Where it has not been possible to resolve the matter locally, the individual may apply to NHS England to request an independent review of the decision. For further guidance on independent reviews please refer to the ‘NHS continuing healthcare’ page on the NHS England website.

Parliamentary and Health Service Ombudsman

If the original decision is upheld at independent review stage and the individual remains unhappy with the decision, they can make a complaint to the Parliamentary and Health Service Ombudsman (PHSO). NHS England should provide the individual with information on how to contact the PHSO.

Glossary

Assessment of needs

The collection and evaluation of a range of relevant information relating to an individual’s needs.

Care

Support provided to individuals to enable them to live as independently as possible, including anything done to help a person live with ill health, disability, physical frailty or a learning difficulty and to participate as fully as possible in social activities. This encompasses health and social care.

ICBs

ICBs are statutory NHS bodies responsible for the planning and commissioning of healthcare services for their local area. References to ICBs in this guidance include any person or body authorised by the ICB to exercise any of its functions on its behalf in relation to NHS CHC. Where an ICB delegates such functions, it continues to have statutory responsibility. It must therefore have suitable governance arrangements in place to satisfy itself that these functions are being carried out in accordance with relevant standing rules and guidance, including the national framework. The ICB should not delegate its final decision-making function in relation to eligibility decisions, and remains legally responsible for all eligibility decisions made.

Multi-disciplinary

‘Multidisciplinary’ refers to when professionals from different disciplines (such as social work, nursing and occupational therapy) work together to assess and/or address the holistic needs of an individual, in order to improve delivery of care.

MDT

In the context of assessing eligibility for NHS CHC, a MDT is a team of at least 2 professionals from different healthcare professions or one healthcare professional and one person who is responsible for assessing an adult’s needs for care and support. The MDT is required to make a recommendation to the ICB as to whether or not the individual has a ‘primary health need’, bearing in mind that where the ICB decides that the individual has a primary health need they are eligible for NHS CHC.

NHS continuing healthcare

A complete package of ongoing care arranged and funded solely by the NHS, for adults who have been assessed as having a ‘primary health need’. It can be provided in any setting and the NHS funds all the care and support that is required to meet their assessed health and care needs.

NHS England

References to NHS England in the guidance include any person or body authorised by NHS England to exercise any of its functions on its behalf in relation to NHS CHC. Where NHS England delegates such functions, it continues to have statutory responsibility and must therefore have suitable governance arrangements in place to satisfy itself that these functions are being discharged in accordance with relevant standing rules and guidance, including the national framework.

NHS-funded nursing care

Funding provided by the NHS to care homes with nursing, to support the provision of nursing care by a registered nurse for those assessed as eligible. It exists because section 22 of the Care Act 2014 prohibits local authorities from providing, or arranging, for the provision of nursing care by a registered nurse, apart from in the very limited circumstances set out in section 22(4). Since 2007, FNC has been based on a single band rate. In all cases, individuals should be considered for eligibility for NHS CHC before a decision is reached about the need for FNC.

PUPoCs

PUPoCs refer to a specific request to consider eligibility for a past period of care, where there is evidence that the individual should have been considered for NHS CHC eligibility but was not considered at the time, and that individual has funded that care either in full or in part.

Primary health need

‘Primary health need’ is a concept developed by the Secretary of State for Health and Social Care to help in deciding when an individual’s primary need is for healthcare (which it is appropriate for the NHS to provide under the 2006 Act) rather than social care (which the local authority may provide under the Care Act 2014). To determine whether an individual has a primary health need, there is an assessment process, which is detailed in paragraphs 55 to 67 of the national framework. Where an individual has a primary health need and is therefore eligible for NHS CHC, the NHS is responsible for the arrangements and funding to meet those assessed needs. This may include health, social care and accommodation needs.

Third party

Any friend, carer or family member who is supporting the individual in the process as well as anyone acting in a more formal capacity - for example, someone with a valid and applicable lasting power of attorney (health and welfare) or someone appointed as a deputy (health and welfare) by the Court of Protection, or an organisation representing the individual.