Joint-funded care home residents

Hi Phil
Sorry I didn’t respond earlier but I’ve had my case on the backburner for a while and have only come back to it to prepare the sub for an upcoming phone hearing.
I haven’t spoken to anyone that doesn’t agree that the PIP legislation causes problems for claimants getting any NHS funding, including just FNC payments. I spoke to CPAG and they’ve made a last minute change to this year’s handbook clarifying that the PIP rules are different.
For my client, I think this leaves us to try and argue that any actual nursing care provided is incidental or ancillary to her care and that she is not therefore receiving medical or other treatment. This might not be possible in many cases, but in this one it seems it might be arguable.

Thank you for the update. I would be very interested in the outcome. My client is in a very similar position.

I had the case heard as a phone hearing last week and the appeal was allowed.

Given the discussions above, I felt that my only possible argument would be that she wasn’t receiving medical or other treatment. Fortunately, when I got details from the home, it seems that, although roughly 20% of her ‘care’ is done by nurses, most of the actual tasks are not really nursing tasks. They include things like liaising with other health care professionals, keeping family updated, managing finances, documenting care plans and risk assessments, and organising community participation and transport. The only 2 things that might have been described as nursing tasks are managing medication (which involves minimal work and can mostly be done by HCAs) and managing difficult behaviours. In the Slavin decision, it was specifically accepted that the management of challenging behaviour does not constitute nursing.

For these reasons, the tribunal allowed the appeal. DWP could appeal, but I think it’s unlikely given that we didn’t challenge the principle around the NHS funding.

It’s hard for me to say whether many people in nursing homes will have similar arguments. It seems likely that most people in nursing homes will be receiving significant actual nursing care. Though I might be wrong.

That’s really good news Allan, well done on the positive result and thanks for letting us know.

Thanks for the update Allan.

Hi Phil
I would also be very interested in what happens to your case and anything of note that comes out of it, either around the funding issue or the nursing care/similar institution questions.

Hi, I’ve now heard back for the client. The DWP accepted my argument that any nursing care was ancilllary to his social care and have paid him £28K going back to 2017.

Thanks for the update, Phil. That’s good news. It looks like this is the only argument available for most cases now.