Related Sector: Health & Social Care
The statutory duties on NHS bodies and local authorities around the provision of health and social care are separate. They are duties to fund the services identified by their particular statutory duty.
The extent of the Secretary of State’s duties to provide health services is governed by health legislation under the NHS Act 2006 and not by the limits of the duties of local authorities. The extent of the local authorities duties to provide social care and a lawful element of “health services” is governed by The Care Act 2014.
There is potential for a gap between what the Secretary of State is under a duty to provide as part of the NHS, and “health services” that can lawfully be supplied by the local authority. In the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care guidance it states that in practice there should be no gap between the provision of health care funded by the CCGs and community care services provided by the local social services authority.
There is however a legal dividing line between the separate duties.
Where is the dividing line?
The legal dividing line is determined by the concept of NHS Continuing healthcare known as “NHS CHC”.
CHC is a term of art in healthcare law used to determine a special category of people for whom the NHS is responsible for funding both accommodation and social care services and healthcare services. Establishing a person has a “primary health need” leads to that responsibility.
Establishing the line is often very difficult as it cannot be precisely drawn. It depends on a very careful appraisal of the facts of each case against case law to establish whether someone has health care needs of such quality and/or quantity they are described as being “primary health care needs”, and therefore of a nature which a local authority, whose primary responsibility is to provide social services, could not be expected to provide.
It is a much fought over thing based on subjective opinion on objective facts.
Who is responsible for making the decision about CHC?
The decision as to who is, or who is not eligible for CHC is solely taken by NHS bodies. It is not a joint decision taken between NHS bodies and local authorities. It is a single assessment process and responsibility for operating the process rests with the CCGs. In operating the decision making process however, the CCG is required to consult with local authorities to ensure a holistic assessment is carried out.
There are often disputes around eligibility and who pays.
Surrey County Council v NHS Lincolnshire CCG (2020) EWHC 3550 Case
This case involves a dispute as to both of these hotly debated issues.
Surrey County Council has successfully brought a private law restitution claim against Lincolnshire CCG to recover accommodation and care costs of JD young man with autism spectrum disorder, on the basis that the PCT/CCG made an error in public law when it twice declined to assess whether JR was eligible for NHS care.
This is a novel claim by one public body against another, in relation to care services provided to a third party (JD), where both public bodies have distinct statutory caring responsibilities and where the basis of the claim is said to be an unlawful public law decision to refuse to accept responsibility for the care of a third party.
JD was born in Surrey, but accommodated by Surrey County Council in specialist autism care in Lincolnshire at the age of 17 in discharge of their statutory duties to JD under The Children Act 1989. JD turned 18 and became an adult on the 30th March 2007. Surrey County Council continue to fund his accommodation and care services pursuant to their duties to him under Section 21 of the National Assistance Act 1948 and then continued under The Care Act 2014.
In October 2007 Surrey County Council invited Lincoln NHS Trust (PCT) to undertake an assessment for NHS CHC. In September 2008 Lincoln NHS Trust informed Surrey County Council they would not undertake a CHC assessment as they did not think they are the responsible commissioner, pointing at Surrey PCT as the responsible commissioner. In July 2011 Surrey County Council asked Surrey PCT to assess JD for CHC. By now, nearly four years had passed during which the two PCT’s were in dispute about “who pays”. In October 2011 Surrey PCT assess JD as eligible for CHC, but say they are not responsible for funding his care.
Finally, in February 2015, some eight years after the first referral for a CHC assessment, Lincolnshire CCG confirm JD is eligible for CHC and that they are responsible for his care.
Surrey County Council issued a claim for £1,571,431.47 plus interest for JD’s care and accommodation from 1 August 2008 to 31 January 2015 but accepted that by virtue of limitation their claim had to be restricted to restitution of sums paid after 31st July 2013 amounting to £310,587.25 which they were awarded.
Lincolnshire PCT made an error in public law when twice they declined to assess whether JD was eligible for NHS CHC.
The elements of a cause of action in unjust enrichment were satisfied to which Lincolnshire had no defence.
Bond Solon offers a comprehensive course on the complexities of NHS CHC for health and social care professionals. This one-day course will increase delegate’s knowledge of the law, evidence and procedure necessary to correctly work within the legal framework and carry out their role effectively and to best practice. Find out more about the NHS CHC course (England) or the NHS CHC course (Wales)
Author: Sue Inker, Lawyer and Subject Matter Expert in NHS CHC
This article was first published on 30th March 2021
Want more information? Please call us on...
020 7549 2549
If you require any help or would like to discuss how Bond Solon can assist you in your training needs, please call us on: +44 (0) 20 7549 2549