Select Committee on Health Sixth Report

4  The need for a single set of national eligibility criteria

54. The criteria for determining eligibility for NHS continuing care, which were issued in 1995, are broad and vague, and include one or more of the following:

    Where the complexity or intensity of their medical, nursing care or other clinical care or the need for frequent not easily predictable interventions requires the regular (in the majority of cases this might be weekly or more frequent) supervision of a consultant, specialist nurse or other NHS member of the multidisciplinary team;

    Who require routinely the use of specialist health care equipment or treatments which require the supervision of specialist NHS staff;

    Who have a rapidly degenerating or unstable condition which means that they will require specialist medical or nursing supervision.

    In addition patients who have finished acute treatment or inpatient palliative care in a hospital or hospice, but whose prognosis is that they are likely to die in the very near future should be able to choose to remain in NHS funded accommodation, or where practicable and after an appropriate and sensitive assessment of their needs, to return home with appropriate support.[44]

55. Health Authorities were required to develop their own, more detailed operational policies and eligibility criteria, based on this broad framework. While this approach had the advantage of allowing Health Authorities flexibility of interpretation to meet the specific needs of their local populations, it also meant that eligibility criteria could vary substantially from area to area, a point made by a predecessor Health Committee in 1995:

    We share the concerns of those of our witnesses who argued that local eligibility criteria might create unacceptably wide variations in the provisions of NHS services … on the grounds of equity, we believe that the nationally set framework should include the eligibility criteria for long term care to define what the NHS, as a national service, will always provide[45]

56. Successive Governments did issue guidance to Health Authorities on continuing care criteria in order to promote some degree of coherence across the NHS. The 1995 guidance was followed by further guidance in 1999 and again in 2001.[46] However, this was clearly not sufficient to ensure correct and consistent interpretation of continuing care eligibility criteria as, in February 2003, the Ombudsman published a highly critical report emphasising the fact that criteria for continuing care had clearly been interpreted and applied differently by different Health Authorities, leading to inequities in access to funding for continuing care. The Ombudsman concluded that:

    There is evidence that the Department of Health's guidance has been misinterpreted and misapplied by some Health Authorities and Trusts, leading to hardship and injustice for some individuals. But there are also more fundamental problems with the system. The Department of Health's guidance and support has not provided the secure foundation needed to enable a fair and transparent system of eligibility for funding to be operated across the country.[47]

57. The Ombudsman made three key recommendations:

    PCTs and Strategic Health Authorities (SHAs) should trace those people who might be affected, review their circumstances and where justified make restitution, and that the Department of Health should guide and support them in that work.

    SHAs should review the criteria used in their areas since 1996 (when written criteria were first required) for compliance with the law as it stands and with national guidance, and that

    The Department of Health should review its own guidance, making it much clearer who was eligible for funding

58. Responding to the Ombudsman's report, the Government accepted the need for retrospective reviews. However, rather than the Department of Health itself reviewing guidance and criteria, as the Ombudsman had recommended, the Department instead issued instructions that the 28 new SHAs, which had recently superseded the 95 previous Health Authorities, should each develop one set of criteria, effectively assimilating 95 sets of criteria into 28.

59. While reducing 95 sets of criteria into 28 is clearly a step towards greater consistency, according to our witnesses there is still considerable scope for local variation. Many submissions referred to the "post-code lottery" evident from a comparison of SHA policies and guidance. Anne Williams of Citizens' Advice, for example, told us that "continuing care is the biggest postcode lottery of them all. You will be aware on this Committee of the problems with cancer care and all the rest of it, but it is nothing to continuing care - it is so different."[48]

60. We took evidence from two SHAs, and we asked them whether they took account of the criteria of neighbouring SHAs when preparing their own, in order to ensure consistency. We were told by Michael Young of North West London SHA that other SHAs had looked at their criteria to see "what was good and what was relevant to them", and Denise Gilley of County Durham and Tees Valley SHA told us that they had had "detailed discussions" with one neighbouring SHA, and "some discussions" with others. [49] While it is commendable that SHAs are working together to share good practice, this sort of informal joint working is clearly not sufficient to ensure consistent criteria across the country.

61. The Minister accepted that reducing 95 different sets of criteria to 28 would not have eliminated all inconsistency, but argued that these 28 criteria were, in fact, more consistent than their predecessors:

    You are right that on the face of it we only reduced it from 95 to 28, and therefore there were 28 different postcode lotteries; but actually those 28 were based on the national guidelines, so there should have been far more consistency between those 28 than ever there was between the 95 they replaced.[50]

62. However, Mr Young's evidence illustrated that some real problems have persisted as a result of SHAs having different criteria:

    If people move out of area, and particularly in terms of wanting annual reviews (and it is very hard in London to do the annual reviews as we do send a lot of people out of area) someone who understands our criteria and our assessment tools would need to be able to assess them.[51]

63. According to Elaine McHale of the ADSS, the introduction of Payment by Results is going to compound these problems, as staff will be expected to use different interpretations of continuing care criteria to assess patients coming in from a far wider range of different locations than is currently the case.[52]

64. There is also evidence of considerable variation within SHAs, with PCTs, NHS Trusts and Local Authorities (Las) applying criteria differently. The issue of implementing criteria is discussed in detail further on in our report.

65. The Minister agreed that consistency in determining eligibility for continuing care funding was of crucial importance, and told us his ultimate aim:

    Broadly speaking, we want to end up with a system where absolutely everybody in England will be able to say, "the assessment I have had would have come to exactly the same conclusion, whether it was held in London or Carlisle or wherever it was.[53]

66. To address the problem of different criteria in different SHA areas, the evidence received by the Committee has almost universally been in favour of the introduction of a single, national set of eligibility criteria. This was also reflected in the report of the independent review commissioned by the Department of Health. Although the Ministerial Statement issued in December 2004 only referred to a national 'framework', the Department's memorandum suggested that national criteria were being planned.[54] However, the Minister was unable to give us a categorical assurance that this would be the case:

    John Austin: The new national framework will have a single set of national eligibility criteria?

    Dr Ladyman: We have those discussions, but my belief is that that is where we will end up. This is a consultation; we are bringing the 28 strategic health authorities together to identify best practice. They are giving us a very clear message. They want to have one single set of national eligibility criteria, so my belief is that is what we are very likely to agree with. If, in the course of these discussions, we find that is not practical, we will have to have something different.[55]

67. The NHS has an urgent need for a single, universal set of national eligibility criteria for continuing care to end the inequities and inconsistencies that have developed as a result of the current system. It is unacceptable that in one part of the country a person with a specific set of care needs would be assessed as qualifying for fully funded NHS continuing care, while a person with identical needs living in a different part of the county would be deemed ineligible, and would potentially have to fund all or part of their care from their own means. We welcome the Minister's aim of addressing this problem, and we welcome his conviction that the current review will result in the development of a single set of national eligibility criteria. However, he was not able to give us a categorical assurance on this point. A single, national set of eligibility criteria for NHS continuing care is crucial to ensure coherence and equity, and we urge the Government to ensure that a single set of national eligibility criteria is developed.

68. Much of the evidence we have received indicated that the introduction of a single set of national criteria is long overdue. Indeed, this issue was first raised by a predecessor Health Committee as long ago as 1995, but successive Governments appear not to have recognised this problem until the Ombudsman published her report in 2003. It is regrettable that the Department's own internal systems did not identify this problem sooner, and that it took 16 complaints to the Ombudsman before it was finally addressed.

69. Perhaps even more worryingly, the Ombudsman recommended that the Department should provide further national guidance to clarify the situation in February 2003, but it was not until almost two years later, in December 2004, that the Department acted on this by announcing the development of a new national framework and guidance for continuing care. The lack of further guidance, according to the Ombudsman, had a direct bearing on the retrospective review process:

    Between the period of the first report and the second report, the February 2003 and the December 2004 reports, not only did we have the complaints coming through, we had a great number of practitioners from trusts and Strategic Health Authorities telephoning us almost on a weekly basis to say, "We are struggling with this criteria. We are trying to do our best. Can you come down and train us? Can you tell us what to do? Or, better still, can you come and sit on the panel and do this with us?" Of course, we had to keep our distance from that. I think there were considerable efforts to try to get this right, but they did not have the guidance or leadership at that time to get it right.[56]

70. Ms McHale also argued that the Department should have been more proactive in supporting SHAs:

    I think more could have been done with regard to clarification and transparency about the definitions and the applications.[57]

71. The Minister told us that national criteria and guidance were not prepared after the Feburary 2003 report for logistical reasons:

We did that because, frankly, going from 95 to one, at a time when we had this huge review to carry out, our judgment was that it would just have been an impossible task to do that.[58]

However, while we accept that carrying out the retrospective reviews entailed a significant increase in workload for SHAs, this does not explain why the Department itself was unable to start work on developing a single set of criteria.

72. We are concerned that it has taken so long for the Department to recognise and address the problem of inconsistent continuing care criteria. We recommend that the Department should consider its own internal monitoring processes with a view to detecting problems like this at an earlier stage in future. It also seems that an opportunity was missed, at the time of the Ombudsman's report in February 2003, for the Department to start work on developing an urgently needed single set of national criteria. The Department ought to have acted sooner to develop a single set of national criteria, and we recommend that this work be completed as a priority, within the 12 month timescale indicated by the Minister.

44   Department of Health, NHS Responsibilities for meeting continuing health care needs, HSG(95)8, 1995 Back

45   Health Committee, First Report of Session 1995-1996, Long Term Care - NHS Responsibilities for Meeting Continuing Health Care Needs, HC 19-I, paras 50-51 Back

46   Department of Health, HSC 1999/180 Ex-parte Coughlan: follow up action continuing health care follow up to the Court of Appeal judgement in the case of R V North and East Devon Health Authority 1999; Department of Health, HSC 2001/015 LAC(2001)18, Continuing Care: NHS and Local Councils' responsibilities, 2001 Back

47   Health Service Ombudsman for England, Press notice 18 February 2003, OMBUDSMAN UPHOLDS COMPLAINTS ABOUT REFUSAL OF NHS FUNDING FOR LONG TERM CARE Back

48   Q100; see also CC01 Back

49   Qq31-33 Back

50   Q271 Back

51   Q36 Back

52   Qq 7-8 Back

53   Q272 Back

54   CC09, para 5 Back

55   Q273 Back

56   Q245 Back

57   Q15 Back

58   Q271 Back

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