The Court of Appeal has handed down an important judgment which confirms that decisions on eligibility for NHS continuing care are, in law, decisions for primary care trusts alone and are not joint decisions between the NHS and local authorities.

The case, (St Helens Borough Council v Manchester Primary care Trust and Anor) has confirmed that local authorities are consultees in the assessment process to reach decisions about whether a patient is responsible for NHS continuing care (NHS CHC) but that the final decision in respect of the eligibility of an individual patient for NHS CHC is for the PCT alone. The case concerned a care package that cost £675,000 per year, but the court refused to arbitrate between two sets of experts who expressed a view as to whether the patient did or did not fulfil eligibility criteria. This means that the only route for a local authority which wishes to challenge the PCT’s decision against NHS CHC eligibility is by way of judicial review. In practice this means the local authority must prove the PCT applied the wrong tests in the individual case or that the PCT had acted irrationally in reaching the view that the patient did not fulfil the eligibility criteria. However, the local authority could only take that step if it had exhausted its “domestic remedies” by following an internal dispute resolution procedure with the PCT.

The National Framework requires NHS bodies and local authorities to have dispute resolution procedures to allow them to resolve differences between the two public bodies over eligibility for NHS CHC. However, the courts have indicated very clearly that they do not wish to see disputes over eligibility of individual patients coming before the courts on a regular basis. This places a heavy onus on public bodies to resolve these disputes between them, keeping them away from the courts.

In this case, the Court of Appeal accepted that if it was shown that the wrong public body funded a patient, there may be a claim for repayment. However, the court made it clear that it was not ruling on whether such a claim would succeed. The law on potential restitution claims is complex and may be resolved by a series of cases which are due to come before the High Court in October.