A number of relatively complex issues can arise in relation to “dowry payments” and, more generally, in relation to NHS funding for social services expenditure on former NHS patients.
The expression “dowry payment” generally refers to the payments that an NHS body has agreed to pay in respect of the cost, to a social services authority, of providing accommodation and care to a former long stay hospital patient, for the rest of the former patient’s life.
The statutory basis of “dowry payments” is section 28A of the National Health Service Act 1977, now section 256 of the National Health Service Act 2006. The main guidance and directions are found in HSG (92) 43 (no longer available on the internet) and HSC 2000/011.
It is important for budgetary reasons to be clear about the extent of NHS responsibility for budgetary payments. It is also important to be clear about the extent to which the NHS continues to be responsible for groups of patients such as those with a learning disability because funding and commissioning responsibility for such patients is being transferred to social services, based on spend in 2007/8, under Valuing People Now: Transfer of Responsibility for the Commissioning of Social Care for Adults with a Learning Disability from the NHS to Local Government and Transfer of the Appropriate Funding (August 2008).
It is of course important that local authorities and PCTs resolve disagreements by discussion and compromise, but it is sometimes the case that legal arguments develop that can obstruct a reasonable compromise being reached.
Whilst each case generally raises its own specific problems, in general:
- Dowry payments should invariably represent the total cost of future care until death, whether they are made under section 28A of the 1977 Act, or section 256 of the 2006 Act.
- Dowry payments agreed under section 28A of the 1977 Act and HSG (92) 43 continue in effect and are governed by HSG (92) 43 because of transitional protection.
- Dowry payments under section 256 of the 2006 Act and HSC 2000/011 should be made in the same types of case as under section 28A and HSG (92) 43, that is, where a long stay hospital patient with a learning disability is about to move out, to live in the community and become a social services authority’s responsibility.
- NHS bodies are not restricted to making, or continuing to make, dowry payments, in cases where the former patient is eligible for NHS continuing healthcare.
- In general, NHS bodies continue to be responsible for former long stay patients with a learning disability who are living in the community under arrangements made under section 64 of the Health Services and Public Health Act 1968, or who have simply been discharged into the community, and who come to require a social services package.