Footing the bill

Acceptances for Fast Track NHS Continuing Healthcare (CHC) packages have fallen by almost a third over the past eight years, despite no change to the qualifying criteria, according to new research from the King's Fund.

For local authorities, that statistic matters well beyond the health sector: every patient who is refused or loses Fast Track NHS CHC funding or NHS CHC funding risks becoming, instead, a means-tested cost that falls on the council. With NHS spending on CHC running at around £6.5 billion a year against a backdrop of local authority gross expenditure on adult social care of roughly £29.4 billion, the boundary between health and social care funding is not an abstract legal question. It is one of the most significant financial pressure points councils face.

In England, once an adult's assessed needs meet the eligibility criteria and their capital falls below £23,250, the local authority has a statutory duty to meet those needs, subject to ordinary residence and charging rules. In Wales, the equivalent capital limit is £50,000. Unlike NHS care, this local authority duty is means-tested: it depends on the person's financial resources, not solely on the nature of their needs.

The rising cost of care home fees means people’s savings are depleting more quickly, pushing more of the cost onto local authorities sooner. The average weekly cost of residential care now exceeds £1,100, with nursing care often significantly higher. For those with complex or long-term health needs, annual fees can easily surpass £70,000, a level of expenditure that, if it should properly fall to the NHS, has a material effect on a council's budget if wrongly allocated to it instead.

Local authorities face an increasingly constrained, means-tested duty to meet eligible care needs. But where a person's needs are primarily health needs, responsibility shifts to the NHS, through NHS Continuing Healthcare (CHC). The Care Act 2014 reflects this: local authorities cannot fund a service that should be provided under the NHS Act 2006, except where it is merely incidental to something else the authority is doing.

In short, if a need is a primary health need, it is the NHS's responsibility to pay for it, not the council's.

Continuing Healthcare (CHC) and Fast Track NHS Continuing Healthcare

NHS Continuing Healthcare (CHC) is a package of care arranged and funded solely by the NHS for adults assessed as having a "primary health need". Unlike local authority social care, which is means-tested, CHC eligibility depends solely on the nature, complexity, intensity and unpredictability of a person's needs, not their financial circumstances. It can be provided in a care or nursing home, a residential facility, or the person's own home. Decisions on CHC eligibility are taken solely by NHS bodies, and the NHS assumes no funding responsibility until it has determined that a primary health need exists.

Fast Track NHS Continuing Healthcare is a stream of NHS CHC for people with a rapidly deteriorating condition who may be entering a terminal phase. It allows their care needs, including end-of-life care, whether at home or in a care setting, to be funded urgently by the NHS without going through the standard multi-stage assessment process.

Despite CHC eligibility criteria having remained unchanged, King's Fund research has found that the number of Fast Track CHC recipients found no longer eligible on reassessment rose by almost 30% since 2017/18. The picture for standard CHC is similarly stark: the proportion of applicants assessed as eligible fell from 31.25% in April to June 2017 to just 16.65% in January to March 2026, a fall from nearly one in three applicants to fewer than one in five. The King's Fund also found significant regional disparities, with eligibility rates ranging from 35.37% in Cambridge and Peterborough to just 2.26% in Gloucestershire.

Why CHC matters more than ever

With care costs soaring, this decline matters directly to local authorities, not just to patients and families. Where a person is refused or loses CHC support, they risk being pushed into the means-tested social care system, potentially facing high personal costs, or having those costs picked up by the council if their means fall below the relevant threshold. The scheme also remains underused: thousands who might qualify are never referred for assessment, or are assessed against variable local practice, and a wrongful finding of ineligibility shifts what should be an NHS cost onto the local authority's budget.

Who can get NHS Continuing Healthcare?

The legal test is whether the person has a "primary health need". The boundary between health and social care cannot be drawn with precision and depends on the facts of each case, including whether the person's care needs are primarily health care needs or, by contrast, of a nature that a local authority could be expected to provide. In practice, a local NHS assessment team - usually including nurses, doctors, and social workers -considers the nature, intensity, complexity and unpredictability of the person's needs to determine whether they are primarily health-based rather than social.

How the NHS CHC Assessment works

1. Checklist Assessment: A brief screening carried out by a health or social care professional.
2. Full Assessment (Decision Support Tool): If the checklist threshold is met, a detailed review is completed by a multidisciplinary team (MDT).
3. Decision by the Integrated Care Board (ICB): The local NHS body makes the final eligibility decision.

Where the NHS declines to accept funding responsibility, both individuals and local authorities have routes to challenge that decision through local dispute resolution, and ultimately by judicial review where an NHS body has misapplied the primary health need test or refused to carry out an assessment at all. Councils that are funding care they believe should properly sit with the NHS should not treat an initial CHC refusal as final: a well-evidenced challenge, informed by the person's full care needs assessment, can shift responsibility and the associated cost back to the NHS where it belongs.

Know where your responsibilities lie

As demand for social care rises and budgets keep tightening, local authorities have a direct financial interest in understanding where their statutory duty to fund care ends and NHS responsibility begins. Being better equipped to scrutinise CHC referrals, checklist outcomes and Decision Support Tool assessments — and to challenge assessments that appear to have misapplied the primary health need test — will not resolve the wider funding crisis in adult social care. But it can stop councils absorbing costs that, on a correct application of the law, are the NHS's to bear.   

It will also be worth watching the King's Fund's new report, 'No man's land': the experience of patients at the interface between health and social care, which calls for a review into the decline in CHC eligibility and the rise in reassessments, stronger national oversight, and more consistent application of the CHC framework. The King's Fund has also urged the independent Casey Commission on adult social care to recommend widening eligibility for publicly funded social care, to reduce reliance on boundary decisions such as CHC and ease pressure at the NHS and social care interface — a recommendation that, if taken up, would directly affect the calculus local authorities apply when deciding whether to challenge an NHS funding decision.

Michelle Evans is a legal director in the nursing care fee recovery team at Hugh James Solicitors.