Lowering the bar

NHS continuing healthcare, care funded by the NHS when needs are beyond those that a local authority can provide for, is a crucial initiative for elderly clients. Local authorities have a duty under section 21(1) of the National Assistance Act 1948 to arrange accommodation for adults ordinarily resident in their area, who, by reason of age, illness disability or any other circumstances are in need of care and attention that is not otherwise available to them.

By section 21(8), however, this duty will not apply where other legislation (primarily relating to the NHS) authorises or requires such provision. The question then is whether care in any given case is the responsibility of the local authority, which will be means tested, or of the NHS, which will be free at the point of use. Given the average cost of nursing home care, the answer to that question is worth up to £730 per week.

Despite the significance of the divide between local authority social care and NHS healthcare, the line between them is very fine and difficult to discern. The Law Commission, in its ‘Adult Social Care’ report, referred to “the need to introduce greater clarity to the interface between health and social care, not least with regard to the limits of what local authorities are able to provide. Indeed, it was suggested that a whole industry has been established, which is dedicated to trying to interpret and implement the dividing line between health and social care.”

Who’s responsible?

The leading case dividing responsibility for care between local authorities and the NHS concerns Pamela Coughlan, an NHS home resident (R v North and East Devon Health Authority ex p Coughlan [1999] EWCA Civ 1871). Coughlan challenged the home’s closure and her transfer to (means-tested) local authority care. The health authority appeared to have interpreted government guidance as no longer having a duty to care for her and that the local authority should do so instead. The case challenged this interpretation and/or the guidance itself.

The court summarised the law determining whether a local authority or the NHS is responsible for an individual’s care as follows: “As a very general indication as to where the line is to be drawn, it can be said that if the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide to the category of persons to whom section 21 refers and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide, then they can be provided under section 21. It will be appreciated that the first part of the test is focusing on the overall quantity of the services and the second part on the quality of the services provided.”

It added: “Where the primary ?need is a health need, then the responsibility is that of the NHS, even when the individual has been placed in ?a home by a local authority.”

Coughlan test

The Court of Appeal upheld the challenge. It found that, according to the law laid down by statute – the substance of which has not changed since 1999 – the health authority had reached a decision on Coughlan’s care that “depended on a misinterpretation of its statutory responsibilities”. The guidance upon which it had acted was either open to misinterpretation or was itself unlawful. The court ruled, in effect, that the NHS had been ‘setting the bar’ too high before it would accept responsibility for an individual’s care from a local authority. In many cases, and despite twice-revised guidance, that continues to be the ?position of the NHS.

The challenge is to ensure that the government (in its guidance) and the NHS (in its practical application) adhere to the Coughlan test. Some difficulty is caused by the difference between the main government guidance and the Court of Appeal’s description of the law. Rather than reinforcing the Coughlan language of “quantity” and “quality” of care, the Department of Health’s updated November 2012 report ‘National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care in England’ (the framework) includes the significance of the person’s “primary need” being a “health need” and of the “characteristics” of their need (its “nature”, “intensity”, “complexity” and “unpredictability”).

The Law Society has criticised these concepts as “elusive, overlapping and likely to confuse”. In addition to the framework, there are directions issued by the secretary of state and additional guidance providing for ‘screening’ prior to full assessment for continuing healthcare, accelerated assessment for rapidly deteriorating and potentially terminally ill patients and additional practice guidance.

Decision support tool

Amid the proliferation of guidance, however, the document that is almost always of most practical importance is the decision support tool for NHS Continuing Healthcare (DST) updated by the Department of Health in November 2012. The DST lists 12 domains as different aspects of a patient’s overall condition, on a scale from ‘no need’ to ‘high’, ‘severe’ or ‘priority’. A multidisciplinary team (MDT) assessment informs the DST.

The DST is not an assessment in itself. Despite this caveat, however, paragraphs 32 and 33 of the DST reveal its importance, giving its advice as to which results from the DST are likely or unlikely to establish eligibility for NHS continuing healthcare. In short, the higher the levels of need recorded in the DST, the more likely ?the eligibility for NHS continuing healthcare. (see box).

Be aware Apart from serious challenges of principle that can be made against the decision support tool (DST), practitioners should be aware of some more basic issues. Both Coughlan and R (Grogan) v Bexley NHS Care Trust [2006] EWHC 44 stressed the importance of a “careful appraisal of the facts” of each case. This cannot be over emphasised. If there is any sort of arguable case in favour of eligibility, practitioners should do all they can to ensure that a full multidisciplinary team assessment for NHS continuing healthcare is undertaken. It is crucial that the MDT assessment is conducted in accordance with the guidance and that it fully and accurately records the patient’s condition. Practitioners should attend meetings about the MDT and completion of the DST. Ask questions, put forward the patient’s case, take good notes and record any disagreement. The meeting notes can be crucial in eligibility appeals. The completed DST should accurately and fully describe the patient’s condition – beware of language that seeks to minimise. The patient’s need in each domain must be sufficiently categorised.

All public authorities are subject to severe budget constraints, so the NHS will avoid financial liability for patients where it can reasonably do this. In addition, NHS staff are often not aware of the law and guidance relevant to the administrative processes with which they are concerned.

It’s a complex area, but the impact is of significant financial consequence to thousands. The law needs to be enforced by practitioners acting in the best interests of their clients.

Michael Furminger is a barrister specialising in adult social care law

The deadline for notifying potential claims for NHS continuing healthcare for April 2011 to March 2012 is 31 March 2013. See here for more details