Joint-funded care home residents

Could anyone please clarify the position for joint-funded care home residents in respect of the mobility component?

I have a client who is jointly-funded between health and social care. She is contributing to her care, having been financially assessed under the Care Act. However, the NHS are also providing a 20% contribution having said that she was ‘assessed as not eligible for NHS Continuing Healthcare but that a health contribution remains appropriate’.

DWP are saying that, following Slavin, because the home employs qualified nurses who are involved in her care it is a similar institution to a hospital. My reading of Slavin is that she was fully funded by health and therefore would not have been paid the mobility unless the care home didn’t employ nursing or medical staff. I’m not certain that it should have the effect of taking the mobility away from residents who are not fully funded but are in a nursing home.

My understanding of the position of joint-funded residents has been that if the placement was the responsibility of the LA under the Care Act, the mobility component would be payable regardless of the fact that the NHS was providing some funding. On the other hand, if the placement was the responsibility of the NHS (as was the case in R(DLA) 2/06), they would be treated in the same way as if they were in hospital and the mobility would not be paid. However, I can’t find any clear legislative source to support my view or any other case law specifically considering joint-funded residents.

Any help on this would be much appreciated.

My understanding of NHS contribution is that a contribution is standard for nursing care (I might be wrong but that seemed to be the gist of an explanation from our Financial Assessment officers).

Re the mobility component, my understanding is that for nursing care to be classed as a similar institution, the resident must get CHC funding. Plus the point about qualified nursing care being available on the premises.

We’ve had quite a few who had their mobility components stopped because PIP/DLA assume anyone in nursing care is not entitled. (I think it is also due to the confusing forms they send out to the homes.) And some good amounts of arrears when their error is pointed out to them.

Rosie W - 05 February 2020 12:41 PM

My understanding of NHS contribution is that a contribution is standard for nursing care (I might be wrong but that seemed to be the gist of an explanation from our Financial Assessment officers).

Re the mobility component, my understanding is that for nursing care to be classed as a similar institution, the resident must get CHC funding. Plus the point about qualified nursing care being available on the premises.

We’ve had quite a few who had their mobility components stopped because PIP/DLA assume anyone in nursing care is not entitled. (I think it is also due to the confusing forms they send out to the homes.) And some good amounts of arrears when their error is pointed out to them.

Is the place she’s living in a nursing home or residential care home where nurses comes to visit to provide care to her?

My health specialist said that the NHS contribution might not be the standard rate NHS funded nursing care payments as the NHS can simply contribute to the cost of a care home placement if the person’s problems are partly health-related but not sufficiently to qualify for CHC.

If it’s simply a residential care home where the nurses visit, then we believe this should not count as an establishment equivalent to a hospital and she could retain entitlement to the mobility component. If it’s a nursing home, then probably not.

Sorry for quoting you but it wouldn’t let me post this otherwise for some reason.

Hi Paul
It’s a nursing home and the amount of help that she gets from nursing staff is probably enough to be regarded as a similar institution as in Slavin. However, reg 12A only applies if the person is ‘maintained free of charge’ by the NHS. My argument is that if the NHS are not accepting full responsibility and the LA are responsible under the Care Act, the NHS cannot be said to be responsible for maintaining her free of charge. In this case, they are paying 20% of the cost under a joint-funding arrangement,  but are not accepting that she requires continuing health care.
My previous experience of this issue has been similar to that of Rosie, which is that DWP have usually backed down when challenged and that this is the first time that they haven’t done so and it is going to tribunal.
I should also say that, since we appealed, her situation has changed.The joint funding arrangement has ended and she is now only entitled to ‘funded nursing care’. Despite this, DWP are still saying that she is not entitled to the mobility component on the same basis. If this was correct, it would disentitle virtually every nursing home resident in the country, including self-funders.

By the way, is this DLA or PIP?

It’s PIP, but I wasn’t aware the legislation was in any way different either way.

allanr - 07 February 2020 08:43 AM

It’s PIP, but I wasn’t aware the legislation was in any way different either way.

Ok, first up, reg.12A has nothing to do with this as it’s PIP not DLA.

Sec.86 of the WRA 2012 states (my emphasis):

86 Hospital in-patients
(1)Regulations may provide as mentioned in either or both of the following paragraphs—
(a)that no amount in respect of personal independence payment which is attributable to entitlement to the daily living component is payable in respect of a person for a period when the person meets the condition in subsection (2);
(b)that no amount in respect of personal independence payment which is attributable to entitlement to the mobility component is payable in respect of a person for a period when the person meets the condition in subsection (2).
(2)The condition is that the person is undergoing medical or other treatment as an in-patient at a hospital or similar institution in circumstances in which any of the costs of the treatment, accommodation and any related services provided for the person are borne out of public funds.
(3)For the purposes of subsection (2) the question of whether any of the costs of medical or other treatment, accommodation and related services provided for a person are borne out of public funds is to be determined in accordance with the regulations.

So there is medical treatment being provided by registered nurses working in the nursing home (that’s a given because otherwise it couldn’t be registered as a nursing home), the nursing home is a similar institution under case law, and any of the costs of treatment (not all) are being met from public funds.

You’re going to need to construct an argument to overcome this if possible. Reg.29 of the PIP Regs simply expands on the sources of that NHS funding. Now that your client only receives the NHS funded nursing care contributions, I agree that payment of PIP mobility should not be affected and should be payable.

Wow, that is a huge change in the wording of the legislation! I mentioned reg 12A because that is what is referred to in the DLA case law that is all that I can currently findon this. Neither the CPAG nor Disability Rights Handbook suggests that there is a difference between DLA and PIP on this issue, but the change from ‘maintained free of charge’ to ‘any of the costs of the treatment, accommodation and any related services provided for the person ... borne out of public funds’ seems massive to me.
What I don’t understand is how this doesn’t rule out people getting funded nursing care contributions. Reg 29 refers to the NHS Act 2006. Is this not also the source for FNC?

Whilst this is a DLA decision, so it refers to DLA regs, it is a case of 50/50 funding of care and refers to Slavin. It found that the client would have been in a hospital other than not being maintained free of charge.

CDLA/135/2012 - http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4055

I hope this helps

allanr - 07 February 2020 11:16 AM

Wow, that is a huge change in the wording of the legislation! I mentioned reg 12A because that is what is referred to in the DLA case law that is all that I can currently findon this. Neither the CPAG nor Disability Rights Handbook suggests that there is a difference between DLA and PIP on this issue, but the change from ‘maintained free of charge’ to ‘any of the costs of the treatment, accommodation and any related services provided for the person ... borne out of public funds’ seems massive to me.
What I don’t understand is how this doesn’t rule out people getting funded nursing care contributions. Reg 29 refers to the NHS Act 2006. Is this not also the source for FNC?

Ah yes, I’d not considered that. We’ve previously worked on the assumption that NHS FNC payments didn’t have any effect but the payments look like they’re made from (deep breath) the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, and these appear in turn to be made under the NHS Act 2006.

Both my social care and health people are out of the office today, so let me run this by them and see what they think. It’s such a complicated area.

I think they’re correct here and the DMG guidance certainly interprets the legislation as above.

Chapter 61 - Attendance Allowance and Disability Living Allowance

See para.61820 onwards and in particular the flowchart at para.61822.

Someone in a nursing home will automatically have the NHS FNC payments made so, by definition, they can’t be paid either component of DLA or PIP after 28 days it seems.

My reading of this is the same as yours, Paul.
However, I’m still hoping that someone else has a counter opinion as, otherwise, this represents a massive loss for virtually all NH residents.

We had lots of discussion about this and I am not convinced the arguments extend to DLA due to the differences in the regulations.

Hospitalisation of persons aged 18 or over] in mobility component cases
12A.—(1) Subject to paragraph (3) and regulation 12B (exemption), it shall be a condition for the receipt of a disability living allowance which is attributable to entitlement to the mobility component for any period in respect of any person that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient—

(a)section 57 of, and paragraph 14 of Schedule 7A to, the NHS Act of 1978;
(b)section 13 of, and paragraph 15 of Schedule 2 to, the NHS Act of 2006;
(c)section 28 of, and paragraph 11 of Schedule 6 to, the NHS Act of 2006;
(d)section 44(6) of, and paragraph 19(1) of Schedule 4 to, the NHS Act of 2006;”

If someone is only getting NHS Funded Nursing Care Payments in a nursing home (not NHS CHC), then they’re palpably not being maintained “free of charge” as the payment is only part of their overall fees and they must make up the rest, from their own income and/or LA funding.

Another thing is this decision MH v Secretary of State for Work and Pensions (PIP): [2017] UKUT 424 (AAC) ; [2018] AACR 15” which does seem to rule out mobility payments for PIP if someone is in a nursing home.

However, throughout the decision, Judge Lane repeatedly references the fact that the resident’s care and treatment are funded by the NHS or NHS ChC - again, I think there is an argument that someone in a nursing home and who only gets the NHS FNC payment shouldn’t be caught by this rule, as they need to contribute to the costs of their nursing home. The problem remains the breadth of wording in the WRA 2012 and the use of the word “any” and you’d need to appeal the decision to suspend payment and try to get this to the UT i think.

Smee - 07 February 2020 11:35 AM

Whilst this is a DLA decision, so it refers to DLA regs, it is a case of 50/50 funding of care and refers to Slavin. It found that the client would have been in a hospital other than not being maintained free of charge.

CDLA/135/2012 - http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4055

I hope this helps

Thanks for this, I think this is in line with what I posted above in finding the mobility component of DLA being payable when the LA are partly involved in funding the home.

Liam our benefit specialist has pointed out the the DRH, p.244 states that NHS FNC payments don’t count as public funds but the references don’t indicate that from what I can see. I’ll see if I can find out anything further.

Is there any update on this? I have a client in the same situation.