Author and Publication
Author: Ben Slater, Registered Social Worker, Founder and Managing Director of Nellie Supports
Reviewed by: Kerry Slater, Director of Operations
Last reviewed: 20 July 2026
Citation
1. Department of Health and Social Care (2022) National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care. Available at: https://www.gov.uk/government/publications/national-framework-for-nhs-continuing-healthcare-and-nhs-funded-nursing-care
2. R v North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622.
3. Mental Capacity Act 2005, c. 9. Available at: https://www.legislation.gov.uk/ukpga/2005/9/contents
4. Care Act 2014, c. 23. Available at: https://www.legislation.gov.uk/ukpga/2014/23/contents
Copywright
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This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms.
Abstract
This guide addresses NHS Continuing Healthcare from the perspective of solicitors in private client, Court of Protection and community care practice. It covers the contexts in which CHC arises, the legal basis of the boundary, the points to check on a completed assessment, limitation and time considerations, the interaction with estate and deputyship work, and when to instruct independent evidence.
NHS Continuing Healthcare for solicitors
NHS Continuing Healthcare rarely arrives as an instruction in its own right. It surfaces inside deputyship, estate administration and care fees work, usually at the point where a client has been paying for care that the NHS may have been responsible for.
Where it arises in practice
Most commonly in property and affairs deputyship, where the deputy is paying care fees from the protected party's funds. Also in estate administration, where fees paid during the deceased's lifetime may be recoverable. In lifetime planning, where a client is contemplating a deferred payment or property sale. And in community care advice, where the client has been refused funding.
The legal basis
The boundary derives from Coughlan, which held that nursing care beyond what is merely incidental or ancillary to the provision of accommodation falls to the NHS. The National Framework operationalises that through the primary health need test, assessed across twelve care domains and analysed by nature, intensity, complexity and unpredictability. Grogan requires the test to be applied and the reasoning shown.
What to check first
Whether a Checklist was ever completed. Whether a full assessment followed a positive Checklist. Whether the client holds the completed Decision Support Tool and the written decision with reasons. In a surprising proportion of files, none of these exist, and the eligibility question was never asked rather than answered adversely.
Reading a completed assessment
The productive points are usually internal. Domain levels inconsistent with the narrative recorded beneath them. Needs recorded as managed rather than as they present, contrary to the well-managed need principle. The four characteristics named but not reasoned. Absent night time evidence. Any reasoning turning on diagnosis, setting or resource availability.
Time and limitation
The expectation is six months from communication of the decision for local resolution, then six months from conclusion of local resolution for referral to NHS England. Claims covering past periods operate under separate arrangements with their own cut-off dates. Judicial review requires promptness and in any event three months. Diarise from the date of communication, not receipt of papers.
Deputyship and estate contexts
For a property and affairs deputy, pursuing a potentially substantial recovery is ordinarily consistent with the duty to manage the protected party's assets, though the scope of the order should be checked. In estate administration, the personal representative pursues any claim, and the Board will normally require the grant before engaging.
When to instruct independent evidence
Where the dispute concerns what the person's needs actually are, rather than how the law applies, legal argument alone will not move it. An independent needs assessment structured by domain and reasoned against the four characteristics provides the factual foundation. Instructing early, before local resolution, is more effective than doing so at panel stage.
Key takeaway
Check first whether the eligibility question was ever asked. Where an assessment exists, the strongest points are usually internal inconsistencies and misapplied well-managed need. Diarise from communication of the decision, and instruct independent evidence early where the factual picture is contested.
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Frequently asked questions
Is CHC a legal or evidential dispute?
Usually evidential. The law is rarely in issue. The dispute is generally whether the assessment accurately captured the person's needs, which is addressed with records and professional evidence rather than legal argument.
What are the key time limits?
Six months from communication of the decision for local resolution, then six months from its conclusion for referral to NHS England. Judicial review requires promptness and in any event three months. Past-period claims have separate arrangements.
Can a property and affairs deputy pursue CHC?
Ordinarily this is consistent with the duty to manage the protected party's assets, given the financial consequence. The scope of the particular order should be checked.
Related NHS Continuing Healthcare pages
These links take you to the most relevant Nellie Supports service page and to the supporting guides that explain the surrounding process.
Speak to an independent CHC specialist
Nellie Supports prepares independent needs evidence for NHS Continuing Healthcare assessments, reviews and appeals across England and Wales. Our reports are written by registered social workers on a permanent employed team, with internal peer review before release. Call 0333 987 5118 or send an enquiry and we will talk through where you are in the process.