One of our readers, Jim, has sent us an argument he put together relating to Funded Nursing Care payments.
Jim felt his points may be useful for other families, and so we’ve included them here.
First of all, take a look at paragraphs 21 and 28 of the Standing Rules:
Also read paragraphs 30-32 of the National Framework for NHS Continuing Healthcare.
Jim Warham explains:
Funded Nursing Care – Why the Dept. of Health is getting it wrong
Here I argue that the Department of Health’s (DH) approach is legally flawed and that an individual assessed as needing registered nursing services has a primary health need, when properly interpreting the relevant legislation.
This means the person is eligible for NHS Continuing Healthcare (CHC).
The issue concerns the effect of S49 Health and Social Care Act 2001 (S49 HSCA 2001) on the Court of Appeal’s judgment in the Coughlan case, its consideration by the High Court in the Grogan case and the subsequent implementation by the DH.
Firstly we need to look at regulations 21 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (SI 2012/2996). We’ll refer to these simply as the Standing Rules.
This sets out a mechanical, step by step, process to decide whether or not a person has a primary health need. Where a person does not have a primary health need, regulation 28 sets out the test for eligibility for Funded Nursing Care (FNC).
This is the fourth of four steps in the process set out below.
Secondly, we need to look at the Grogan case, because the DH’s approach seems to rely on the High Court’s judgment in that case (paragraphs 30 to 32 of the National Framework).
The Standing Rules – SI 2012/2996 – Regulations 21 and 28
The multidisciplinary team (MDT) assesses the needs of the individual. It uses that assessment to complete the Decision Support Tool (DST).
From the assessment of needs and the completed DST, the CCG determines both the quantity and quality of nursing and other healthcare services that the individual requires to meet his/her needs.
This could include (general) nursing services provided by the local authority (LA) and/or registered nursing services that are beyond the LA’s remit.
This requires the attribution of nursing services and other healthcare services (from step 2) to
(a) those capable of being provided by the LA
(b) those beyond the capability of the LA.
In short, those nursing services which can only be commissioned by the relevant CCG.
Given the choice here, the obvious attribution of a supply of registered nursing services (prohibited from LA provision) would be to (b).
On that basis, the individual would have a primary health need and therefore be eligible for CHC. There is no need to go any further.
However, the DH’s view is that registered nursing services should be attributed to (a) and that the “… more than incidental or ancillary…” test applies. (This was the essence of the judgement in the Coughlan case.) Where the supply of registered nursing services (and any other nursing/healthcare services) is merely incidental and ancillary to the supply of accommodation by the LA then there is no primary health need. But that would mean that responsibility for providing nursing services and accommodation falls to the LA.
This is a problem – because the incidental or ancillary test only applies where the supplier of both services is the same person. Where the suppliers are different, (as is the case here – registered nursing services by the relevant CCG and accommodation by the LA) the test cannot apply.
The whole point of the ‘ancillary’ test is to determine whether the minor service (i.e. registered nursing services from the CCG) retains its independence and character. If on the other hand it’s found to be ancillary to a more dominant service (i.e. accommodation from by the LA) it takes on the character of that more dominant service. The DH has taken the latter approach in making registered nursing services part and parcel of a single supply of accommodation services.
However, given the S49 HSCA 2001 prohibition on LA provision, this creates an absurdity.
This is the test set out in regulation 28 to determine eligibility for FNC. This can only apply where (at step 3 above) it’s decided that the person does not have a primary health need. In other words that (i) the registered nursing services identified at step 2 can be provided by the LA and (ii) that those services are incidental and ancillary to the supply of accommodation services by the LA.
But both conclusions are wrong, for the reasons given above.
Furthermore, the mere existence of regulation 28 indicates that the provision of registered nursing services was never an ancillary service in the first place. Its purpose, following the DH’s approach, is to unpick the supply of registered nursing services by the CCG from (what has been incorrectly determined at step 3 to be) a single supply of accommodation services.
If the supply of registered nursing services were truly merely an ancillary service then there would be no need for regulation 28. The nursing services would, as held by the Court of Appeal in the Coughlan case, be part and parcel of LA provision and subject to means testing.
The reality is that the provision of registered nursing services is not an ancillary service and that the correct attribution at step 3, above, is to regulation 21(7)(b). Either way, regulation 28 serves no purpose.
The Grogan case
We’ve already seen from paragraphs 30 to 32 of the National Framework that the DH relies on the High Court’s judgment in the Grogan case. But this is misplaced.
The key points in this respect are:
1 The Court noted that, prior to the enactment of S49 HSCA 2001, the provision of registered nursing services could have been lawfully provided by a LA. Following the enactment, the Court expressed concern that when looked at from the LA side of the divide, as it put it, those nursing services previously capable of LA provision would exclude (the now prohibited S49 HSCA 2001) nursing services. It was, quite rightly, concerned that this would disadvantage potential CHC claimants.
2 In response, the DH pointed out that S49 HSCA 2001 would only apply after it was clear that the person did not have a primary health need and that the provision of registered nursing services would be included in the quantitative “incidental or ancillary” eligibility test for CHC (notwithstanding S49 HSCA 2001).
3 The Court accepted this test (looked at from the LA side of the divide) but said that “… this approach must factor in the point that but for S49 HSCA 2001 the nursing care provided by a registered nurse could have been provided by the LA applying the Coughlan test…”, (emphasis added).
Clearly, the Court saw (because of the prohibition on LAs providing registered nursing services) that a “but for S49” point was essential. Following this rationale the same must apply when the CHC test is looked at from the opposite (NHS) side of the divide.
But there is no reference in the Rules, or its predecessor, to any “but for S49” or deeming provision.
As a result, it follows that regulation 21 must be construed with regard to the effects of S49 HSCA 2001 and, in doing so, the conclusion reached that the provision of registered nursing services is beyond the capability of the LA – and so indicates a primary health need.
On the face of it, it appears that those drafting the 2012 Standing Rules have not appreciated that when looked at from the NHS rather than the LA side of the divide the absence of a “but for S49 HSCA 2001” or deeming provision is going to produce a totally different outcome to that prior to the enactment of HSCA 2001.
It is clear that individuals who have been assessed as requiring the provision of registered nursing services (and FNC) have been wrongly charged by LAs for the accommodation needed to provide of those nursing services.