R (on the application of Joan Green (by her litigation friend Carolyn Kempson) v South West Strategic Health Authority and (1) North Somerset PCT and (2) Secretary of State for the Department of Health (interested parties) [2008] EWHC 2576 (Admin)

The Claimant in this matter was seeking a judicial review of the decision, by the Defendant SHA that she did not qualify for 100% NHS funding under Continuing Healthcare [‘CHC’] for the period between October 2003- March 2006. She had been diagnosed with Alzheimer’s disease in 1996 and by 2003 her condition had deteriorated to the extent that she required residential care. The Court looked only at the period of time between 13.01.05- 07.03.06 as the authority had completed decision making process for that period, determining that whilst she would qualify for CHC from the 13.01.05- 10.08.05 she did not satisfy the criteria for the period between the 11.08.05- 07.06.08. Her argument was that at the time of the decision making, including that of the SHA review panel, the criteria being applied were unlawful, thereby making the decision unlawful. The defendant accepted that they had, at the time of the decision making, relied on criteria as set out in guidance issued by the health authority’s predecessor (this reported to be in line with the Coughlan judgment and the government guidance of the time. However the defendant also made clear that the review panel had also considered supplementary criteria as set out in additional government guidance issued following the ruling in Grogan.  This guidance made clear that the decision maker must ensure those with a primary healthcare need were fully funded by the NHS and made explicit and accurate reference to the Primary Healthcare Needs Test.

The judge considered the guidance before the review panel and reviewed their notes made whilst reaching the decision. He determined that the eligibility criteria being applied should be read as a whole and, although the earlier guidance may have inaccurately represented the correct tests, he found that the subsequent guidance was properly applied by the review panel who had to correctly interpreted and applied the appropriate test in law, namely the Primary Healthcare Needs Test to the facts of this case. As such the application for review failed and the case was dismissed.

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