Means testing children’s healthcare ~ by stealth

In England and Wales social services provide significant amounts of healthcare to disabled and ill young people which should be funded by the NHS.  Although unlawful it has been condoned by the Department of Health and the Welsh Government.  The result is not only that young people are assigned to a second tier ‘substitute’ health service, but also (in England) their entitlement to ‘free at the point of need’ NHS care is replaced by a service that can be means tested.  In addition it has the result that many social services departments are spending very substantial sums on the healthcare needs of young people, when this should be funded by the NHS.

This post outlines how this state of affairs has arisen in England and why, in my opinion, the law severely restricts the power of social services to provide healthcare for young people.  The legal position in Wales is similar but considered separately in the Rhydian: Social Welfare Law in Wales: News: recent SWL in Wales developments.

 

Background

It has been a fundamental principle of the UK’s healthcare system, since the Beveridge reforms, that healthcare is free at the point of need in contrast to social care which has always been subject to a means test.  To stop any ‘social care creep’ the National Assistance Act 1948 Part III contained a ‘limits to social care’[1] provision.  This has been interpreted by the Court of Appeal[2] as prohibiting any nursing being provided by social services unless it is incidental or ancillary to the provision of a social care service and of a nature which social services could be expected to provide.  ‘Nursing’ in this context is a verb, not a noun: almost everyone ‘nurses’ at some time in their life.  Accordingly it is irrelevant who does the nursing (or indeed where it is done) – and the prohibition relates to nursing above a basic level – in both in terms of its quality and its quantity.[3]

In England,[4] the Department of Health has explained that once a person’s healthcare needs are above this line, that ‘the NHS is responsible for providing all of that individual’s assessed health and social care needs – including accommodation, if that is part of the overall need’.[5]  People in this situation are described as being eligible for ‘NHS continuing healthcare funding’ (NHS CHC).

Although in relation to the rights of adults, NHS CHC eligibility is well understood – this is not the case for children and young people.

The principal NHS guidance in England distinguish between the rights of adults to ‘NHS Continuing Healthcare[6] funding and the rights of young people to ‘continuing care[7] funding.  This post argues that there is very little difference between the legal rights of adults and children to NHS continuing care funding and so throughout the same phrase is used for both concepts – and paraphrased to ‘NHS CHC’.

This ‘post’ explains that although the principal statutes regulating the respective responsibilities of Clinical Commissioning Groups (CCGs) and social services for the funding of young people’s needs in England are silent as to the ‘limits’ of social care, these responsibilities are, in most respects, the same as for adults.

There are a number of reasons why this should be, and these include:

 

1. Understanding the National Assistance Act 1948

As noted above, the original demarcation of responsibilities between NHS bodies and (what we now refer to as) social services derives from the National Assistance Act (NAA) 1948.  This Act applied in England until April 2015 and is the statute on which almost all of NHS CHC decisions have been made.

Part III of the Act placed duties on local authorities to provide (what came to be known as) social care services.  This Act and the NHS Act 1946 came into force on the same day and were the foundation stones of the new Beveridgean Welfare State: the 1948 Act repealing the Poor Laws.  The new settlement was that support under the NHS Act was to be free at the point of need but support under the 1948 Act was to be means tested.  Both Acts applied irrespective of age and the 1948 Act contained (in sections 21(8) and 29(6)) a ‘limits’ of social care provision.  This provision was interpreted by the Court of Appeal in R v. North and East Devon health authority ex p Coughlan[8] and the phrasing used by the court when explaining what this limit meant is now found in the Care Act 2014 (section 22).

The ‘limits’ of social care provision in the 1948 Act applied to young people until the Children Act (CA) 1989 came into force.[9]  Thereafter the obligations on social services to provide social care services for disabled young people were governed by the 1989 Act.[10]  As with the NAA 1948 Act, the 1989 Act (section 29) provides for the social care support to be means tested.

There is nothing in the legislation to suggest that the amendment was intended to water down the rights of disabled children to NHS care – or convert those ‘free at the point of need’ services to means tested services.  Had it been Parliament’s intention to undermine this fundamental, quasi constitutional right, at the very least one would have expected the Government to have been explicit about this and for it to have been the subject of Parliamentary debate.  However the transfer of functions attracted almost no debate.[11]  It is not unreasonable to suggest that if any significant change to the responsibilities of the NHS was intended, this would not have been the case.

For whatever reason, however, the explicit ‘limits’ of social care provision in the 1948 Act was not transposed into the CA 1989: the Act is simply silent on this question.

 

2. Understanding R (T, D & B) v Haringey LBC (2005)[12]

The Haringey case concerned a young person who had a tracheostomy (a tube in her throat) which needed to be kept clear by regular suctioning.  On the basis of the case law there was little or no doubt but that she would have been eligible for NHS CHC funding if she had been an adult with this health care need.  On her behalf it was however argued that her care needs could be funded by social services because the ‘limits’ of social care provisions in the NAA 1948 did not apply as her care could be provided under the CA 1989 and that the case law concerning the ‘limit’ was not relevant.  This argument was rejected by Ouseley J who held that:

The discussion in Coughlan is helpful as to the indicators relevant here: the provisions of the Children Act are not to be regarded in general as reducing or replacing the important public obligations, with their qualifications and their target nature, set out in the 1977 NHS Act.[13] I do not see that the impact there of section 21(8) of the NAA 1948 means that the principles enunciated were peculiar to that Act, incapable of sensible application to the Children Act. (para 61).

The scale and type of nursing care is particularly important as is the question of whether its provision is incidental or ancillary to the provision of some other service which the social services authority is lawfully providing, and whether it is of a nature which such authority can be expected to provide. (para 62);

[although on a] broad interpretation, [the provisions of the CA 1989] could cover what are essentially medical needs. Such an interpretation would turn the social services authority into a substitute or additional NHS for children. That would be to provide an impermissibly wide interpretation, creating obligations on a social services authority which are far too broad in the context of other statutory bodies and provisions covering the needs of children. (para 68).

 

3. Understanding the NHS Act 2006

Sections 21(8) and 29(6) NAA 1948[14] made clear that the NHS Act 1946 was the dominant statute: once a person’s healthcare needs were above the ‘limits’ of social care, the NHS was ‘responsible for providing all of that individual’s assessed health and social care needs’.[15]  The demarcation was considered essential to avoid the risk of the social care system becoming a ‘substitute’ means tested health service.

Attempts have been made to reinterpret the scope of the current NHS Act 2006[16] in other, but associated contexts.  R (Harrison) v. The Secretary of State For Health,[17] for example, considered an argument that the Act’s general prohibition on means testing did not prevent NHS bodies from making direct payments to individuals to cover their healthcare support needs – not least because the 2006 Act was silent on this question: it did not explicitly prohibit such payments.  In rejecting this argument the court (paras 30-31) placed considerable weight on the underpinning principles in the 1942 Beveridge report[18] and that the general principle of non-payment for healthcare had not been diluted by the revisions to the Act (at para 30):

The main relevant provisions of the 1946 Act have been largely replicated in subsequent legislation including the National Health Services Act 1977 and the 2006 Act.  Lord Woolf M.R. said that the language of sections 1 and 3 of the 1977 Act “can be readily traced back to the original legislation which founded the welfare state after the last war” (R v North and East Devon HA ex p Coughlan [2001] QB 213 [20]).

 

4.Understanding the CHC guidance

The first formal guidance concerning the provisions of NHS CHC was issued by the Department of Health in 1995 (ie after the CA 1989 had come into force).  This guidance applied to both adults and children.[19]  This situation only changed with the publication of much criticised[20] (and eventually withdrawn) 2001 guidance[21] which only applied to ‘adults aged 18 or over’.  The guidance was silent about young people’s entitlement to NHS CHC although it referred to two publications concerning the care of young people[22] (neither of which considered NHS CHC eligibility).

Notwithstanding the important Haringey[23] judgment in 2005 no specific young people’s NHS CHC guidance was issued until 2010.  Sadly, this guidance[24] was of poor quality: indeed it even failed to explain in a coherent way what NHS ‘continuing care’ meant for a young person (ie what distinguished it from the NHS simply meeting a person’s healthcare needs).  It also failed to explain why it took a radically different approach to NHS CHC eligibility to that set out in the 1995 guidance.  More problematic however, is the fact that the 2010 guidance was then replaced by even more unsatisfactory guidance in 2016[25] – the current guidance – which will be considered in a subsequent post.

[1] See for example R (Grogan) v. Bexley NHS Care Trust and others (2006) [2006] EWHC 44 (Admin) paras 50 and 61.
[2] R v. North and East Devon health authority ex p Coughlan [2000] 2 WLR 622: [2000] 3 All ER 850.
[3] For further analysis of this question see L Clements Community Care and the Law (Legal Action 2017) para 12.23.
[4] In Wales the Welsh Government Decision Support Tool for Continuing NHS Healthcare (2014) states (page 40) that NHS CHC is a ‘complete package of ongoing care arranged and funded solely by the NHS, where it has been assessed that the individual’s primary need is a health need. It can be provided in any setting. Where a person lives in their own home, it means that the NHS funds all the care that is required to meet their assessed health and social care needs.’
[5] Department of Health National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised) (DH 2012) para 33 and The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 SI 2996 reg 20.
[6] Department of Health National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised) (DH 2012).
[7] Department of health National Framework for Children and Young People’s Continuing Care (2016) page 5 and The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 SI 2996 reg Sch. 1 para 1.
[8] R v. North and East Devon health authority ex p Coughlan [2000] 2 WLR 622: [2000] 3 All ER 850.
[9] On the 14th October 1991.
[10] Chronically Sick and Disabled Persons Act 1970 suport was also to be provided ‘under’ the 1989 Act.
[11] The only reference appears to be at Hansard H.L vol 502 1306 where the Lord Chancellor noted that the ‘1948 Act is to be modified by amendments in Schedule 9 [Schedule 13 in the final Act] to the [Children] Bill to limit its provision to disabled adults, local authorities’ responsibilities to disabled children being placed with their responsibilities to other children in need in this Bill.’
[12] [2005] EWHC 2235 (Admin) 21st October 2005.
[13] As we see below the relevant provisions of the NHS Act 1977 are now found in the consolidated NHS Act 2006.
[14] Now found in section 22 Care Act 2014.
[15] Department of Health National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care November 2012 (Revised) (DH 2012) para 33.
[16] Which for the purposes of this post is indistinguishable from the 1946 Act and its successor the NHS Act 1977 – which the 2006 superseded.
[17] [2009] EWHC 574 (Admin)
[18] William Beveridge Social Insurance and Allied Services, (1942) (Cmd 6404) p.46.
[19] LAC (95)5 / HSG (95)8 ‘NHS Responsibilities for Meeting Continuing Health Care Needs: WOC 16/95 & WHC (95)7 in Wales para 8.
[20] See for example R (Grogan) v Bexley NHS Care Trust and others [2006] EWHC 44 (Admin); (2006) 9 CCLR 188 and the Health Service Ombudsman’s Second Report for Session 2002–03 NHS funding for long term care, HC 399, 2003, para 38.
[21] Department of Health Continuing Care: NHS and Local Councils’ responsibilities HSC 2001/015: LAC (2001)18
[22] Annex B of the 2001 guidance referred to (1) Children and Young People in Hospital’ (Department of Health, 1991); and (2) ‘Child Health in the Community: A Guide to Good Practice’ (NHS Executive, 1996).
[23] [2005] EWHC 2235 (Admin) 21st October 2005.
[24] Department of health National Framework for Children and Young People’s Continuing Care (2010).
[25] Department of health National Framework for Children and Young People’s Continuing Care (2016)

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