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Transport Costs & NHS Continuing Healthcare

The NHS has a duty to provide support for adults who are eligible for continuing healthcare funding  and who have been assessed as needing transport for social care activities: the mere fact that they are receiving a mobility component of their Disability Living Allowance (DLA) or the enhanced rate of the mobility component of Personal Independence Payment (PIP) does not negate this duty.

Once an individual is eligible for NHS continuing healthcare (CHC) funding all their health and associated care needs fall to be funded by the NHS – in England this responsibility rests with the relevant Integrated Care Board (ICB) and in Wales it is the responsibility of the Health Board.

The health body is under a duty to operate a person-centred approach to all aspects of its assessment and care planning process using models that maximise personalisation,[1] individual control and reflect, as far as possible, the individual’s preferences.[2]  Para 189 of the English 2022 Framework Guidance makes clear that (among much else) this approach applies to the ‘whole package, not just the healthcare aspects’.

In R (Whapples) Birmingham Crosscity Clinical Commissioning Group and another [2015] EWCA Civ 435 para 30 the Court of Appeal held that:[3]

Where someone is assessed as eligible for NHS continuing healthcare but chooses to live in their own home in order to enjoy a greater level of independence, the expectation in the Framework is that the CCG would remain financially responsible for all health and personal care services and associated social care services to support the assessed health and social care needs identified outcomes for that person, e.g. equipment provision …  routine and incontinence laundry, daily domestic tasks such as food preparation, shopping, washing up, bed-making, support to access community facilities [etc].

 

In such situations, in essence, the NHS assumes all the social care responsibilities that social services authorities owe to the individual,[4] albeit that it is for the NHS to assess these needs – taking fully into account any assessment that any local authority social services may have undertaken prior to the individual becoming eligible for NHS CHC funding.[5]

Where it is accepted that an eligible individual has a need for community-based activities, this need (like all other health and social care needs) must be subject to a personalised assessment process, such that the necessary support is tailored to their needs and preferences – including the question of how the individual will ‘access’ this support.  Any such assessment must not assume that any member of the eligible individual’s family is willing or able to provide or to continue to provide care.[6]

 

Care planning

The Care Plan must be detailed (whether it involves a directly commissioned service, delivery via a Personal Health Budget (PHB) or a combination of the two).  This means it must, among other things, be specific in relation to quality (focusing on person-centered approaches, clear objectives, early identification, and effective support) and as to quantity.  This will include being specific as to (for example):

  • the essential skills, experience and training needs of Personal Assistants (PAs);
  • the importance of routine/continuity (ie the importance of avoiding ‘change’) – and if so, the need for suitable PAs to be retained to enable the disabled person to be familiar with and to build trust with support workers;
  • the need for the disabled person to be physically and/or emotionally occupied during the day – for example, to reduce the risks of harmful agitation and/or to ensure that they sleep soundly at night;
  • the range of appropriate daily recreational activities – together with what these activities are likely to be and how she or he will be able to access them (ie in terms of their transport needs etc);
  • and, of course, much more.

 

In relation to ‘quantity’, this will include:

  • the number of PAs required;
  • the total PA hours required;
  • the hourly rates to be paid to the provider to ensure that suitably qualified PAs can be secured and retained;
  • the frequency and the cost of the necessary recreational activities and the attendant transport costs;
  • and, of course, much else.

 

In cases where there is agreement that the support be provided by way of a PHB – this must be in accordance with the relevant regulations, namely the National Health Service (Direct Payments) Regulations 2013 (as amended) and guidance, namely ‘Guidance on Direct Payments for Healthcare: Understanding the Regulations’ (2022).  The guidance makes a number of important points, relevant to the current context – for example:

  1. Personalised care and support planning is a series of facilitated conversations in which the person, or those who know them well, actively participates to explore the management of their health and wellbeing within the context of their whole life and family situation.
  2. The personalised care and support plan is at the heart of a personal health budget.

 

Transport needs

The Statutory Guidance to the Care Act explains that where the care planning role is a local authority responsibility (ie the individual does not have a ‘primary health care need’) – that it must consider the individual’s ‘ability to get around in the community safely and … their ability to use such facilities as public transport’ (para 6.106(i)).  As noted above, these obligations rest with the health body when an individual is eligible for NHS CHC funding.  In every case, the planning process must not only identify an individual’s need for community-based activities but also how he or she will ‘access’ these – and then, if necessary, to make arrangements to facilitate this.[7]

 

Motability schemes

It appears that some health bodies are insisting that individuals who are eligible for NHS CHC funding, and who have been assessed as having needs to access community-based activities, must forego their entitlement to receive a mobility benefit and join a ‘Motability’ scheme.

Mobility benefits are paid to help disabled people with the extra mobility related costs they incur as a consequence of their long-term health condition or disability.  These extra costs can be many and varied, and can frequently exceed the amount of the allowance.

Joining a Motability’ scheme is a voluntary choice and involves the individual deciding whether or not to forego the income derived from the allowance and to take on a vehicle lease (that in general has a minimum term of three years).  With such schemes the individual remains responsible for the vehicles fuel costs – and where he or she does not have a driving licence, it will be necessary for one or more ‘third parties’ to agree to be insured.  The Local Government Ombudsman has stressed that there can be no assumption that unpaid carers are willing or able to drive or otherwise take responsibility for a disabled person’s Motability vehicle.[8]

Where an health body has assessed an individual as needing to access a community-based activity (for example to attend a day centre or to take part in social/leisure/recreational activities within the community) then it is under a duty to consider how she or he is going to get to the centre/the activity.

This duty does not change because a person is receiving the higher rate of the mobility component of DLA or the enhanced rate of the mobility component of PIP.

Social security benefits of this kind are not paid to cover NHS responsibilities – and if Parliament so wished, it could disentitle persons eligible for NHS Continuing healthcare funding living the community from receiving mobility benefits.[9]

In 2012 the Department of Health was sufficiently concerned about local authorities adopting policies, akin to those described above propounded by some health bodies, that it issued policy guidance[10] to clarify the position.  It referred to evidence that ‘some local authorities were taking the mobility component into account when considering what social services to be provide’.  The guidance, in my opinion, is directly applicable to equivalent situations that arise in relation to the transport related responsibilities of ICBs as discussed in this note.  The 2012 guidance states that the ‘Department would like to make the position clear’ that:

… local councils have a duty to assess the needs of any person for whom the authority may provide or arrange the provision of community care services and who may be in need of such services. They have a further duty to decide, having regard to the results of the assessment, what, if any, services they should provide to meet the individual’s needs. This duty does not change because a particular individual is receiving the mobility component of Disability Living Allowance.

 

A similar argument (concerning the use of social security benefits) was considered by the ombudsman in a 2017 report.  It concerned a reduction to a support package, not because the person’s needs had changed, but because the authority considered that some of her eligible needs (relating to the ‘nutrition’ and ‘maintaining a habitable home’ outcomes) should be paid from her Disability Living Allowance.  The ombudsman held this to be maladministration, stating that there is ‘nothing in the Care Act 2014 or the statutory guidance which allows the Council to require a person to use their benefits this way’.[11]  There does not appear to be anything in the NHS Act 2006 or the guidance thereto that allows health bodies to require a person to use their benefits this way, either.

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[1] ‘Personalised’ is defined at Annex A to the English Department of Health and Social Care National Framework for NHS Continuing Healthcare and NHS funded Nursing Care (2022) page 168 as describing ‘care and services received by a person that are individualised and tailored to their needs and preferences. Wherever possible, it involves the individual having choice and control over the care and support they receive.’
[2] Department of Health and Social Care National Framework for NHS Continuing Healthcare and NHS funded Nursing Care (2022) para 186.
[3] Citing with approval; the guidance in Department of Health NHS Continuing Healthcare and NHS-Funded Nursing Care (2012) para PG 85.1 that is now to be found at para 315 of the National Framework for NHS Continuing Healthcare and NHS funded Nursing Care (2022).
[4] ‘In the context of NHS Continuing Healthcare’ a ‘social care need’ can be taken to relate to the Care Act 2014 eligibility criteria’ para 53 of the National Framework for NHS Continuing Healthcare and NHS funded Nursing Care (2022).
[5] National Framework for NHS Continuing Healthcare and NHS funded Nursing Care (2022), para 315, 192 and see also para 148.
[6] There is no legal duty in the UK that requires one adult to provide unpaid care for another adult.  This obligation (in relation to family members) existed prior to 1948 but was abolished by s1 National Assistance Act 1948. 
[7] See for example R (MH) v NHS ([2015] EWHC 4243 (Admin) in which a decision by NHS body not to fund a profoundly disabled person’s travel costs was struck down as irrational.
[8] See for example complaint against Wiltshire County Council (16015946) 12 April 2018 and complaint against Nottingham City Council (18 004 245) 1 November 2018.
[9] See in this respect the observations of Otton LJ in R (Stennett) v Manchester City Council and others 2001 2 Q.B. 370, not least that if this fact creates anomalies (which, with respect it does not). Then ‘it is for Parliament to address them by legislation’; see also Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; and Secretary of State for Work and Pensions and Slavin [2011] EWCA Civ 1515.
[10] Department of Health (2012) Charging for Residential Accommodation and Non-Residential Care Services LAC(DH) (2012)03 para 11.
[11] Complaint no. 16 012 715 against Haringey LBC 12 June 2017 (para 36).

Posted 18 December 2025