NHS Continuing Healthcare (CHC) is care which is fully funded by the NHS and is commissioned by CCGs. CHC is a complicated area and there are many different aspects for CCGs to grapple with. Two recent High Court decisions have shed light on some of these issues, including how CCGs should manage retrospective claims for CHC eligibility and the nature of a CCG’s responsibilities under section 3 of the National Health Service Act 2006 (NHSA).

R (on the application of Neal Dennison Administrator of the Estate of the late Lily Dennison) -v-Bradford Districts Clinical Commissioning Group[2014] EWHC 2552

A partially successful judicial review claim has highlighted the importance of CCGs handling retrospective requests for CHC eligibility correctly.

Background

The claimant is LD’s son. LD lived at Springfield Nursing Home (the home) between January 2006 and her death in October 2008. The home fell within the area of the defendant’s predecessor body, Bradford and Airedale Primary Care Trust (the PCT). Although the PCT assisted LD with nursing costs from May 2007, LD had to meet all her own residential costs during her time at the home. This was because the PCT did not assess LD as eligible for CHC. LD was assessed in May 2007, September 2007 and March 2008, then, in 2012, the claimant asked the defendant to review LD's CHC eligibility during her residence at the home.

Until 30 September 2012, previously unassessed episodes of care were reviewable retrospectively on application under an NHS scheme. Given that LD had received no CHC assessment from her admission until 8 May 2007, the defendant agreed to review LD’s CHC eligibility for this period. However, the defendant refused to review LD’s CHC eligibility from 8 May 2007 to her death. The claimant sought a judicial review of this refusal.

In October 2012, the NHS issued a process document entitled NHS Continuing Healthcare Review Process with the subtitle ‘to be adopted when dealing with requests for assessment of past periods of care between 1 April and 31 March 2012’ (the process document). Under paragraph 4.1.6(i) of the process document, PCTs were to ensure that any review request related to a previously unassessed period of care. The closing date did not apply to reviews of decisions that had already been made. Meanwhile, paragraph 4.1.6(ii) stated that if CHC eligibility had been properly considered before the Registered Nursing Care Contributions (RNCC) determination or annual review, a further assessment of the past period of care was not necessary.

Proceedings

Firstly, the claimant submitted that the assessments of LD were not clinically sound. Secondly, the claimant submitted that the CHC assessment was carried out after the RNCC determination and therefore a review had to have followed under paragraph 4.1.6(ii) of the October 2012 process document. Therefore, the defendant’s refusal to review the assessments was irrational and unreasonable.

Davis J accepted that the May 2007 assessment was not clinically sound. This assessment comprised an nursing needs assessment tool, an RNCC determination and a CHC checklist. When completing the ‘rationale’ section of the nursing needs assessment tool, the assessor failed to explain the level of continuing care needed or state the appropriate level of funding, as was required. Meanwhile, she completed the CHC checklist without comments - despite each heading having a comments section. Furthermore, some of the checklist responses conflicted with comments in the nursing needs assessment tool. In light of this lack of clinical soundness, Davis J decided that the defendant’s refusal to review the assessment was irrational and unreasonable.

Davis J also decided that the RNCC assessment was carried out on 8 May 2007 and that the CHC checklist was completed on 14 May 2007. The CHC assessment was therefore carried out after the RNCC determination. In view of this, a review had to follow under the PCT’s local policy and paragraph 4.1.6(ii) of the October 2012 process document. Although Davis J accepted that the October 2012 process document did not require this explicitly, he was satisfied that that it was implicit in the wording. Consequently, the defendant’s refusal to review the assessment was irrational and unreasonable. Had the defendant acted reasonably, it would also have reviewed the September 2007 assessment because no screening tool was completed, which was contrary to the PCT’s policy then in operation.

Nevertheless, Davis J decided that the 13 March 2008 assessment of LD had been carried out appropriately. As a result, he quashed the defendant’s decision to refuse a review of LD’s CHC eligibility during the period from 8 May 2007 to 13 March, but not for the period thereafter.

Comment

The outcome of this judicial review demonstrates the importance of applying the guidance correctly when dealing with retrospective claims made by members of the public. Hill Dickinson has experience and expertise in providing advice and training about this issue and can offer CCGs preventive solutions to save time and costs.

R (Whapples) -v- Birmingham Crosscity Clinical Commissioning Group (Secretary of State for Health intervening) [2014] EWHC 2647

An unsuccessful judicial review claim has underlined the reasonableness of exploring alternative means of providing accommodation before resorting to the use of NHS funds.

Background

The claimant in this judicial review has been paralysed from the neck down since 1979. Her paralysis apparently results from her PTSD. She is also registered blind and has problems with her bowels and respiratory system. The claimant lives in a one-bedroom flat in Harborne in Birmingham, provided by the Midland Heart Housing Association (Midland Heart). However, the flat does not meet her medical needs and the claimant sought a ruling that the defendant was obliged under section 3 of the NHSA to provide her with accommodation free of charge as part of her healthcare package. The two alternative providers of accommodation apart from the CCG are Midland Heart and any relevant local authority acting within its responsibilities under section 21 of the National Assistance Act 1948. These bodies provide accommodation by means tested benefits. Although the claimant was likely to qualify for these benefits, she considered that the non-means tested NHS route would provide greater assurance. The potential implications of this claim on NHS funds caused the Secretary of State to intervene in the proceedings. Permission was granted.

A further relevant issue was that the claimant’s mental capacity was in question. Court of Protection proceedings in relation to her capacity are ongoing, having been issued by the defendant.

Decision

The claimant submitted that that the defendant had wrongly asserted that it had no power to provide accommodation under section 3 of the NHSA. Mr Justice Sales considered this academic because the defendant had accepted that in an appropriate case it does have the power to do so. The claimant also submitted that the defendant had acted in breach of its duty under section 3 of the NHSA to provide her with accommodation.

Sales J decided that whether or not the claimant has capacity, he could not rule in the claimant’s favour as things stood. There was a real prospect that Midland Heart or one of the housing authorities outside the West Midlands could provide the claimant with suitable accommodation. Unfortunately these options had not been fully explored because the claimant had not cooperated with these bodies or the defendant. Sales J stated that if the claimant is deemed to have capacity to decide about her accommodation, then the defendant’s decisions to date would be lawful. In those circumstances, the defendant could have assessed that the claimant had no reasonable requirement for CCG-provided accommodation either because she has decided not to find a larger flat or because she has not cooperated with alternative accommodation providers. Alternatively, if the claimant is deemed to lack capacity, Sales J found that the defendant was entitled to conduct proceedings in the Court of Protection as it is currently doing. In those circumstances, the court can explore alternative accommodation options on the claimant’s behalf.

Sales J’s decision was underpinned by his interpretation of the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care (the National Framework). He stated that there is no presumption under the National Framework that the NHS is responsible for providing accommodation where someone has healthcare needs and the provision of suitable accommodation would assist in meeting those needs. Rather, the responsibility for meeting the accommodation part of a person’s needs will require assessment of the person’s ability to rent or own their own home (supported as necessary by welfare benefits) or what suitable social housing a local authority can provide. The National Framework further indicates that in general if someone lives in their own home (owned or rented), and healthcare services are provided to them there, NHS bodies are not expected to meet the housing costs associated with that accommodation. Sales J noted that alternative avenues include means tested benefits, which Parliament has established is a fair method of meeting these sorts of needs. As such, if a person’s accommodation needs can be met without recourse to NHS funds, ‘… that is both fair to them and fair to others who look to the NHS to meet their health care needs’. Accordingly, Sales J considered that the defendant had not acted in conflict with the National Guidance in seeking to explore various alternative ways in which the claimant’s accommodation needs could be met.

Comment

The decision contained some significant remarks about the position of CCGs in these situations. Sales J stated that unless special circumstances applied, it would be difficult to say that a CCG had acted unlawfully or irrationally by deciding that a person’s needs could and should be met through other avenues and not out of its own NHS funds. The judge was mindful of ‘… the considerable pressure’ on healthcare budgets. He added that where an individual’s needs can be met through alternative means, it is legitimate to expect that these will be explored before resorting to NHS funds. This will offer some reassurance to CCGs at a time of considerable budgetary pressure within the NHS.