Many people who are battling to obtain NHS Continuing Healthcare funding for an elderly relative in full-time care will find useful ammunition by exploring two of the well-known test cases – the Coughlan case and the Grogan case. We’ve pulled out some key arguments for you to make it easier.
The Coughlan case
The landmark Coughlan case was brought by Pamela Coughlan, who had been seriously disabled in a road accident. When her care funding was taken away, she brought a legal challenge against North & East Devon Health Authority. In 1999 she took her case all the way to the Court of Appeal – and succeeded in having her Continuing Care funding reinstated.
The Grogan case
In 2006 Maureen Grogan successfully challenged Bexley NHS Trust in the High Court about their decision not to provide her with fully-funded NHS care (Continuing Care). Mrs Grogan was severely disabled by multiple sclerosis and was chronically ill. The High Court ruled that the NHS’s decision not to provide care was “fatally flawed” and that the NHS had wrongly moved the goalposts in defining her needs.
- Remember that every Continuing Care assessment should be ‘Coughlan compliant’. This means that the assessment must be lawful and adhere to the principles in the Coughlan case. Pamela Coughlan received full-funded NHS Continuing Healthcare funding for her needs. It is therefore logical (as the judge states) that anyone whose needs are the same as or greater than Pamela Coughlan’s will also meet the criteria for full Continuing Care funding.
- If you hear NHS assessors making comments that your relative is unlikely to be successful, ask them if the assessment has been properly carried out in the light of the Coughlan case. Some assessors state that they have never heard of the Coughlan case – and this is a good point at which to explain it to them. If they have already heard of it – AND they realise you have too – you are in a better position, although many families report that assessors do not necessarily follow its principles.
- Similarly, if the assessors or the Decision Making Panel say that your relative has social care needs, not health care needs, and that you will need to pay for care, remind them of the mistakes made originally in both test cases where care needs were improperly defined.
- Say that you will have no hesitation in taking your case as far as possible through the courts. Whether you ultimately do that or not is your choice. But your statement will let the NHS know how seriously you take the assessment process and that you will not accept anything less than a fully legal approach to Continuing Care funding.
- If you feel that an assessment is not being conducted properly, or you disagree with the verbal recommendations being made, ask the assessors how familiar they are with actual healthcare law (not the Dept of Health guidelines, but the law). Very often they won’t be familiar with case law – the legal framework in which they themselves actually operate. At this point you can remind them of the Coughlan and Grogan cases, and state that your position would be upheld in a court of law.
- If the assessors say that they are following the Continuing Care guidelines and that’s what counts, remind them that the guidelines do not override the law.
- If the assessors seem particularly obstructive, they could be in breach of the Theft Act 1968.
- If you’re told that your relative is ‘stable’ and that their needs are ‘predictable’, and for that reason they are ineligible for fully funded NHS care, remind the assessors of the judgment in the Coughlan case; the case stated that the needs of people with ‘stable yet chronic conditions’ (not just acute conditions) should be reviewed in a Continuing Care assessment, and that the NHS may have a duty to fund care for those needs.
- If your relative is in a nursing home – or in a residential home and receiving what is effectively nursing care – and yet you are struggling to get funding, remind the assessors of their duty to apply a ‘primary health need approach’. This came from the judgment in the Coughlan case – and the judge commented that the ‘vast majority’ of people in nursing homes should have their care fees funded by the NHS, and that only if someone’s health care needs are just ‘incidental’ to their overall care needs should the responsibility be passed to Social Services for means testing.
So take courage from Pamela Coughlan and Maureen Grogan, who fought before – and won.