(R) Grogan v Bexley NHS Care Trust & South East London Strategic Health Authority & Secretary of State for Health [2006] EWHC 44 (Admin) (QB)

The claimant (G) applied for judicial review of a decision of the defendant NHS Trust that she did not qualify for continuing NHS health care.  In assessing G’s entitlement the Trust had applied specific criteria contained in its continuing care policy, according to which a person could need continuing health care due to the nature, complexity, intensity or unpredictability of their health needs.  The criteria purported to implement guidance contained in a circular issued by the Secretary of State as a result of, and taking into account, the decision of the Court of Appeal in the case of Coughlan. Coughlan had determined that in law certain nursing services could be provided by a local authority as part of a social services care package rather than being provided by the NHS.  However, if a person’s primary need was a health need then the NHS would be responsible for providing for that need and for accommodation if it was part of the overall need. (The primary health need approach)  It was accepted by the parties that the application of that primary health need approach was the correct legal approach. The Trust’s criteria were intended to guide clinical and social care staff in undertaking assessments to determine entitlement to NHS continuing care.  The underlying issue was whether G’s accommodation and care should be provided by the Trust or whether it should be provided by the local authority. If it was the former, it would be provided free of charge; if it was the latter G would have to contribute to the cost of her accommodation and care. G argued that, the criteria did not properly reflect the primary health needs approach and that the Trust had acted unlawfully because it had not applied it in its assessment.

The Court held that the guidance provided by the Secretary of State was intended to implement the Coughlan case and the primary health care need policy stated in it. However, it did not contain a clear, distinct and early expression of the test and approach to be applied. The guidance was far from being as clear as it might have been which had caused difficulty for the care trust in setting out its criteria.  Although the guidance was not subject to challenge by G, its lack of clarity could have led to, or been a factor in, an incorrect approach being applied by the relevant decision maker.  The Trust’s criteria neither contained any reference to the primary health need approach or the test set out in Coughlan as to what a local authority could lawfully provide, nor was there reference to the test or approach to be applied by the decision maker by reference to the Secretary of State’s guidance, the Coughlan case, or otherwise. There was no guidance as to the test or tests to be applied when assessing the nature, complexity, intensity, unpredictability and impact of a person’s health needs to determine the appropriate care category. By failing to give any effective guidance as to the test to be applied in making the value judgment, the Trust’s criteria were fatally flawed and it could not be said whether the decision maker was to apply the primary health need approach. It could not be assumed that decision makers would apply the primary health need approach as that was not implicit in, or did not flow from a fair reading of, the criteria; and the criteria could fairly lead to the decision maker taking his or her own approach based on experience and views as to when a person should qualify for continuing NHS health care. In its decision letter, the Trust had asserted that G’s continuing health care needs could not be characterised as complex or intense but it did not say why it had reached that conclusion. The Trust had not described the principles it had taken into account in making its determination and had not referred to the test that it had applied to G’s case. It could not be said that the Trust had taken a lawful approach in, and in applying, the criteria as it had not applied the primary health need approach. The Trust’s decision would therefore be set aside and remitted for fresh consideration.

Application granted.

Comment
Anyone assessed under the particular NHS criteria in question, in the geographical areas covered by the guidance must have a strong case for reconsideration by the NHS, of their funding status, and if successful, restitution by the NHS of the monies they may have been charged by an LA, or spent from their own resources, in order to purchase care.
Anyone assessed under different but arguably similarly deficient criteria, should be seeking legal advice as to whether to challenge the NHS decision in their particular case. The people with the most interest in so doing will be people who are funding their own care because they were told that since they did not qualify for free care, they would be full cost payers, if they were to rely on the LA to contract on their behalf. But local authorities have a legitimate grievance here too, in respect of all the ‘below capital threshold’ people for whom they end up paying the bulk their of nursing home fee.
Local authorities should be refusing to place people as social care clients without a reasoned decision as to why they do not qualify for NHS continuing health care.
A local authority’s decision to pick up the care costs and charge against them, in a particular case, on the basis of an NHS decision not to accept liability, is not invalid, technically, until the prior NHS decision underpinning that stance has been quashed or conceded to be invalid. However, it would be prudent and sensible for local authorities to inform their NHS partners that anyone with an assessment of High Band RNCC will be reconsidered, by the local authority, against its view of the limit of the local authority’s lawful powers to contract, fund and charge for the nursing home placement concerned. It could be said to be high time that local authorities took responsibility for using the law in a pro-active way, to protect local authority budgets, and put aside fear of alienating the NHS or affecting their star ratings. This is a ‘rights’ and respect-based approach to the ultimate clients of the services.
Any self-funder, or relative of a self-funder, who has been involved in the retrospective restitutionary exercise that has been conducted by PCTs countrywide, and who has been turned down on account of a conclusion that they would have been in High Band RNCC, and hence not eligible, should go back and ask for a further reconsideration.
Anyone being cared for in the community in their own home, who might, if in a nursing home, attract High Band RNCC, would be well advised to ask for an assessment of entitlement for NHS continuing health care status. Anyone whose care in the community is being done by ordinary care workers or family members, having been shown how to do it by district nurses, and having been supervised, loosely by those nurses, albeit weekly, should also consider applying. There are no social services powers to provide nursing of any kind, registered or merely general ‘nursing’ in the community.
Local authorities who are dissatisfied with the way in which their local criteria have been set, or think that they are indistinguishable from the ones drawn up by the South East London Strategic Health Authority in this case, should give notice that they expect to be consulted about urgent revision in the light of this judgment, whether or not central government provides ‘guidance’. Guidance can only ever elaborate on legal principle, not alter it.
Anyone denied sight of their local PCT’s current criteria should use the Freedom of Information Act. Where the continuing health care line is drawn, is, after all, an expression of public policy, for which there could be no possible justification of secrecy.

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