March 2006

Court Clarifies Right to Free Nursing Care

Thousands of people have been unlawfully forced to pay for their own nursing care despite a landmark court ruling in 1999.

In 1999 Pam Coughlan took her local health authority to court when they refused to fund her fees for staying in a nursing home. In that case the Court of Appeal essentially said that, as Ms Coughlan’s primary need was a health need, the local authority was barred from funding this because their powers and duties to support people under the National Assistance Act did not go that far. By inference, where the local Social Services authority’s powers ended, the NHS responsibility would begin.

This was important because, whereas NHS care is fully funded by the taxpayer and therefore free at the point of delivery, Social Services care packages are means tested and recipients have to pay if their means are sufficient. Accordingly patients with assets, a house for example, are often forced to sell them to pay for their care unless they can get free care under the NHS.

It has been a long time coming but a recent case, Grogan, has finally helped further clarify the law around how the authorities should go about assessing peoples’ eligibility for free nursing care.

Ms Grogan

Ms Grogan had been assessed as being eligible for the "high band" contribution to her nursing care in a care home. This meant that she had been assessed as needing registered nursing nurses’ attention as part of her overall care package and the government would pay a fixed rate about £70 per week towards this. She had subsequently been reassessed as fitting the medium band so that contributions fell accordingly. In any event Ms Grogan did not qualify in the health authority’s eyes for free nursing care. This was based on the local NHS Trust’s "guidelines" developed following the Coughlan case which were supposed to be "Coughlan Compliant", that is, drawn up to ensure assessments would be conducted in a lawful manner in accordance with principles set out by the Court in the Coughlan case.

Ms Grogan challenged the health authority saying that, compared with Pam Coughlan, her own needs on any sensible view must be such as to require her to receive nursing care that was far beyond what was ancillary and incidental to social care, a concept used by the Coughlan case to draw the line between care that the social services could provide on a means tested basis and that which it could not.

The Judge in Grogan was invited by the parties to consider whether the local health authority had applied its’ guidelines lawfully. Cleverly, Ms Grogan’s legal team feigned to avoid attacking the guidelines themselves head on, thereby risking a head to head with the Department of Health, a fight that would be much harder to win in view of the importance to the government of the principles involved. The state although represented as "an interested party", were to a certain extent marginalised leaving the local trust to fight its’ own corner.

Applying Coughlan to Ms Grogan’s case the Judge commented that the high jump bar put in Coughlan above which patients have to jump in order to qualify for NHS funded nursing care had effectively been raised by the way in which the NHS assessments were being carried out.

In Grogan the Judge said it was not enough for Bexley’s criteria to:

1. identify qualitative and quantitative factors reflecting factors identified by the Court of Appeal in Coughlan.
2. Identify standard assessment tools, and
3. Give examples of types of situations where continuing NHS Health Care may be appropriate.

The Judge said that the Bexley criteria documentation contained no express reference to:

i) the Primary Health Need Approach.

ii) the underlying test set out in Coughlan as to what a local authority can lawfully provide, or could have lawfully provided, prior to the enactment of s. 49 HSCA 2001 (The provision that brought in nursing care "banding" contributions from the state)

iii) to the detail of the test or approach to be applied by the decision-maker, by reference to the Guidance, or the Coughlan case (and what the decision maker should record, other than just the conclusion).

Within an assessment the Judge said that health care is not confined to nursing care but it has various facets and all of these need to be taken into account in deciding whether a person’s primary need is for health care.

He said:

"As the reports of the Select Committee and the Ombudsman show in my view understandable confusion and dissatisfaction have resulted from decisions that a person in the high (and medium) RNCC band has not been assessed as qualifying for Continuing NHS Health Care when their overall needs are compared with those of Miss Coughlan. As I have explained the sequential argument advanced on behalf of the S/S (and the Care Trust) does not provide satisfactory answers to this confusion and dissatisfaction".

He went on to add:

"In my judgement the Criteria gives effectively no guidance as to the test to be applied in determining whether the qualitative and quantitative factors referred to in it found a conclusion that the person falls within category 1 or category 2. The decision maker is effectively left adrift on a sea of factors without guidance as to the test or tests he should apply to assess and weigh (in the words of the Criteria) the nature or complexity or unpredictability and the impact of an individual’s health needs in determining the category into which the relevant person falls.

In my view by failing to give any effective guidance as to the test to be applied in making the required value judgement the Criteria is fatally flawed and it cannot be said from it what test the decision maker is to apply and thus whether, as the Care Trust assert, it indicates that (a) the decision makers are to apply the Primary Health Need Approach as described and advanced by the S/S and the Care Trust in argument, or (b) that this is the approach the decision makers did apply because they have had regard to and applied the guidance given by the Criteria".

The Judge acknowledged that the authorities faced a difficult challenge in drawing the line between services which can and cannot be lawfully provided by a local authority (i.e. on a means tested basis) and that:

• The tests need to be applied to a wide range of factual circumstances.
• The tests need to be involve issues of degree and that a borderline casewill depend on a careful appraisal of the facts.
• That what can be properly regarded as the responsibility of a local authority can change over time.
• The possibility of there being regional differences.
• As to the need for professional judgement, do not in my view answer the essential criticism of, and the flaw in, the Criteria, namely that it does not properly identify the test or approach to be applied in reaching the judgements required.

In conclusion, on the issue whether the guidelines themselves were flawed or whether they had been applied unlawfully, the Judge said:

"To my mind it does not matter whether this is classified as a failure to set proper guidelines, or a failure to apply the correct approach at law, or a failure to give adequate reasons".

Accordingly the Judge set aside the decision that Ms Grogan did not qualify for continuing NHS Health Care and sent it back to the NHS Trust for fresh consideration. In its’ reconsideration the Judge suggested the Trust should:

1. identify the test it applies,
   
2. in doing so address the point flowing from s. 49 HSCA 2001, and the sequential argument advanced by the S/S and adopted by the Care Trust, that the Coughlan test on what the local authority could lawfully have done addresses the issue prior to the prohibition introduced by s. 49 HSCA 2001, with the consequence that at the first stage of the sequential approach it is relevant to consider whether all the nursing needs in the accommodation (including the RNCC) could have been lawfully provided by the local authority prior to the enactment of s. 49 HSCA 2001.
   
3. in doing so address the point as to how a conclusion that the relevant person has needs for registered nursing care as described in the RNCC bands (or other nursing needs) that could not have been lawfully provided by a local authority prior to the enactment of s. 49 HSCA 2001 is to be taken into account in the assessment of the question whether that person qualifies for Continuing NHS Health Care.

March 2006

Robert T Campbell
Robert Campbell & Company

www.carelaw.co.uk
robert@carelaw.co.uk
08702412139

Notes for editors

Robert Campbell & Company is a firm of solicitors specialising nationally in healthcare and employment law.

ENDS