Welcome to ‘Did You Know?’,  Hempsons’ publication designed to keep you informed about the latest legal developments, legislation, and noteworthy case law across our sectors.

In this edition, we shine a spotlight on the complexities of NHS continuing care and continuing healthcare, which are the main NHS funding frameworks for adults and children with complex healthcare needs living out of hospital. Against the background of uncertainty as to who will be providing this critical service under the NHS 10 Year Plan, our Advisory team identify some enduring key concepts within these frameworks and practical considerations for those responsible for this service.

We hope you find the articles in this edition interesting and useful. If you need any legal assistance, have questions, or wish to discuss any of the issues covered, we would be delighted to hear from you.

Though there are similarities, there are key differences in how NHS continuing care applies to adults and to children. One key difference is their legal underpinning. NHS bodies fund their services, in general, by exercising what is known a ‘target’ duty – namely, a duty which exist to the population as a while, and not to specific individual.

Where adults are concerned, these very general target duties are made more specific by rules made in secondary legislation – in particular regulations issued by the Department of Health and Social Care in 2012[1] – as well as by guidance[2]. By contrast, the children’s framework has no underpinning regulations, though it does have its own, separate, statutory guidance[3].

Key differences include the more holistic ‘development’ focus of the children’s regime, as oppose to the express health focus for adults; and even the meaning of ‘continuing care’ in both frameworks. Therefore, while the two frameworks are similar in many ways, it is likely to be inappropriate, and legally incorrect, to equate the two regimes.

[1] The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (SI 2012/2996)

[2] National Framework on NHS Continuing Healthcare and NHS-funded Nursing Care (last updated July 2023)

[3] National Framework for Children and Young People’s Continuing Care (last updated & published January 2016)

The ‘target duty’ underpinning the provision of continuing care is Section 3 of the NHS Act 2006. Section 3 is clear that the sorts of services which the NHS may provide in meeting this duty may include ‘accommodation’ and “such other services as are required” for the diagnosis and treatment of illness, where those services are “appropriate [to be provided] as part of the health service”.

The 2012 Regulations do not add additional constraints to the range of services that might be provided, so in appropriate cases it is possible for a very wide range of services to be provided to someone as part of a package of continuing care. That being said, whether or not accommodation is a part of that package is an entirely case specific consideration, and one which commissioners of the service will need to give careful consideration to.

By contrast to adult services, continuing care for children should be seen as ‘part of a wider package of care, agreed and delivered by collaboration between health, education and social care’. The guidance sets an expectation that local authorities – both social care and education branches – must work together with healthcare to ensure that a child’s continuing care package fits within that child’s wider Education, Health and Care Plan. This means that, where children are concerned, delivery of a package of care – even where the child is entitled to ‘continuing care’ – is something for which NHS commissioners and local authorities are jointly responsible.

At present, the guidance for continuing care for both children and adults does not provide a prescriptive form of dispute resolution for commissioning bodies to follow where disputes arise. What is clear, however, is that commissioners are expected to have in place and implement local dispute resolution procedures for local authorities, and service users respectively. It is important that dispute are raised, and addressed in a ‘timely’ way and – although there is no specific time frame – in our experience, delayed resolution of disputes leaves ICBs open to criticism from wider health bodies (such as the Ombudsman) as well as local service users and groups.

The ‘No Recourse to Public Funds’ (NRPF) condition prohibits persons with particular immigration statuses from accessing certain public funds, which includes most welfare benefits and social housing. Where a person has NRPF status, provision of healthcare services are – in many instances – therefore chargeable to that person. However, the guidance[1] to NHS bodies on charging for NHS services also makes clear that ‘continuing healthcare services’ are ‘out of the scope’ of the charging guidance. As such, a person with NRPF status may receive continuing healthcare services free of charge.

[1] Charging Overseas Visitors in England: Guidance for Providers of NHS Services (last updated December 2024)

At Hempsons, we support Integrated Care Boards (ICBs) with expert legal advice on NHS Continuing Healthcare (CHC), helping them navigate the complex challenges of funding pressures, eligibility disputes, and Court of Protection applications.

Our services include dispute resolution, restitution claims, and deprivation of liberty applications, as well as tailored training for CHC teams on frameworks, funding, and safeguarding. We also provide strategic insight into the NHS 10-Year Plan, advising on the shift toward community-based care and the innovation needed to meet rising demand within constrained budgets.

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