This appeal, bought by the Local Authority, was in connection with an earlier judicial review of the decision by the Respondent PCT that a woman (P) did not qualify for 100% NHS Continuing Healthcare [‘CHC’]. P had been diagnosed with a Dissociative Identity Disorder requiring constant care. The local authority maintained that this level of care was not such that the social services authority should be required to fund. However, following earlier assessments, the PCT had determined that her need was not ‘primarily for healthcare’ and that, with the exception of physiotherapy and other specific health care matters, the trust should not fund P’s care. The judge at the earlier hearing had determined that the issue to adjudicate on was whether the decision by the PCT was ‘Wednesbury unreasonable’, that is so unreasonable that no public authority correctly applying the law could reach that decision. He found that it was not.
The local authority appealed against this determination on the sole ground that the judge should not have applied that orthodox Wednesbury Test, but rather should use what they believed was a flexible regime of judicial review to determine the substantive point as to which of the statutory authorities should fund P’s care with reference to the facts. The local authority accepted that the PCT appeared to have made a competent decision, but asserted that in concluding that P’s needs were over and above the limits of social services provision, they too had acted correctly. The parties had agreed that there could be no gap in service provision (rather than correctly quoting government guidance on the matter that there should be no gap). As such the local authority argued that it was necessary for the Courts to adjudicate on the merits of both decisions and determine which authority should be responsible for funding the package of care required. The local authority claimed that such a determination would not stray into policy making, but would provide a clear definition as to the lawful limits of provision permissible by social services authorities and whether P’s needs were ‘primarily for healthcare’. Unfortunately the local authority incorrectly adopted the terminology used by the PCT rather than remind the Court that the correct test was whether P’s case identified a primary health need.
The Court of Appeal, appalled at the use of public money to “engage in expensive litigation to decide which [authority] should pay for the care …[because] in the end, the money for the care and the money for the litigation is all coming out of the same purse”, agreed that judicial review could be flexible but not ‘unfenced’ and approached the issue from a traditional interpretation of their remit. They determined that the PCT were the primary decision maker in respect of the decision under challenge, namely whether P qualified for 100% CHC. Moreover they confirmed the decision was reached following the highly structured statutory process as set out in the NHS Act 2006 and government guidance (now ‘The National Framework’). The Court highlighted that this structure required input from the social services authority but that the ultimate decision as to whether P’s needs were primarily healthcare needs was one for the PCT. In its judgment the Court of Appeal concluded that the dominant legislation was the NHS Act 2006 and that under this Act the PCT were delegated responsibility for decision making by the Secretary of State for Health on matters of CHC provision. The local authority were not given any powers of decision making under this Act, but were given responsibility, by virtue of s21 National Assistance Act 1948, for provision of needs that were not primarily healthcare needs. The Court of Appeal stated that, as the parties agreed that there could be no gap in provision, the structure of the legislation was such that it would fall to the local authority to make available provision for the care of those determined by the PCT as ineligible for 100% CHC.
The Court of Appeal commented that the same Secretary of State for Health was empowered under National Assistance Act to direct the local authority as to their obligations under the National Assistance Act as was responsible for the decisions reached by the PCT under the NHS Act and as such there was ultimately only one primary decision maker. It rejected the appeal on the basis that the Judge at first instance had correctly determined that it was the PCT’s decision that was primary and had also correctly applied the Wednesbury test when reviewing this decision.
Comment: This decision by the Court of Appeal throws current thinking on eligibility for NHS continuing care into disarray. It fails to deal with the fact that continuing care criteria did not apply to Mental Health clients until the National Framework changed that position in October 2007. It misstates the policy test for eligibility, in precisely the way that central government has always wanted it to be mis-stated, confusing the questions whether the person has ‘primarily a need for health care’ (which is a question admitting of some kind of an answer, although not a legal answer, since there is no definition of what counts as healthcare in the legal framework) with whether the person’s profile constitutes a primary health need’ (which is a euphemism, merely meaning, needs that the government admits constitute a need for NHS funding).
The judgment suggests that because there should be no gap, between responsibilities of the health and social care sectors, the PCT can effectively – subject only to irrationality – tell the LA what it should regard as social care, even though it means the client has to pay for what is then provided, and which involves turning the provisions detailing what is a community care service and what is not, into provisions, about which, all the PCT has to do is take a reasonable interpretation. The idea that it is down to the PCT to decide what is social care is the best possible reason that there needs to be a Health and Social Care Appeal Tribunal in this country, so as to keep this issue from clogging up the courts, whilst still providing ordinary people with an accessible means to getting their status clarified by a body which can overturn a decision on the merits.
Instead of judicial review, in my view, the local authority should have sought a declaration from the High Court, as to whether the services needed were in this particular case more than was ancillary or incidental to a package of social care in a care home, or within the vires of the LA’s “own home”-based statutory provisions (the ones governing home care, rather than care home care). The High Court would then have had to have decided whether it was a matter of law, or whether the test was judicial review only. My feeling is that it would have decided that it was judicial review. But it would NOT have led to the High Court saying that the meaning of a social care provision was one for the PCT. It would have said that it was a decision for the LA, subject only to irrationality – but in saying that, it would have probably had a go at defining more closely, what the scope of social care was, if only as a benchmark by which to measure irrationality….Once it was clear that both decisions as to what is continuing care and what is within social care vires are decisions that can only be challenged by way of judicial review, it would be obvious that there can easily be, and indeed IS, a gap between the two, and I feel that the public outcry for a more accessible process would quickly lead to the formation of a tribunal jurisdiction so that ordinary people are not left in limbo.
No-one challenged the criteria used in this case, for determining eligibility, by the PCT. Those criteria were whether the woman’s needs were “primarily for health care”. The test, as we all know, is whether there is a primary health need, which is capable of being made up of a whole set of needs, so long as they are all ‘relevant’ needs (I would say that this means deriving from or exacerbated by an illness, accident, disability or chronic condition) – which should be segregated into ‘health’ or ‘social care’ types of services, unless and until the totality of all of them does not trigger eligibility under the government’s own decision support tool. But because the client in this case was considered under local criteria pre October 2007, she should have been determined under the CPA, which has ALWAYS, from it inception, aimed for a collaborative, shared approach, and continuing care criteria specifically did not apply to CPA cases – see the 2001 continuing care guidance from central government.