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NHS Continuing Health Care (CHC) judgment

An interesting and novel case where a local authority brought a private law claim against a Clinical Commissioning Group (CCG) to recover sums it had paid for the costs of accommodating and caring for a young man with autism.  In total the council had paid over £1.5 million that should have been paid by the CCG (and its predecessor Primary Care Trust) but due to the statutory limitation period the claim was restricted to £310,000 plus interest.

In 2008 the council asked the relevant NHS Trust to undertake an assessment of the young man’s eligibility for NHS CHC funding,  The Trust refused (unlawfully) and this refusal persisted until 2015 when the relevant CCG accepted responsibility and accepted that the young man was eligible for CHC funding.

The council then sought reimbursement for its prior expenditure (ie to 2008) but this claim became protracted – in part due to the lack of clarity over the process for resolving  disputes of this nature.  Ultimately the council issued proceedings in the High Court for reimbursement.  This was resisted by the CCG.  The court rejected almost all of the CCGs arguments and accepted the council’s assertion that if it was unable to recover its previous payments this could (para 81) :

create a perverse incentive for health bodies to (unlawfully) delay the carrying out of assessments/eligibility decisions to protect their own budgets by allowing local authorities to carry on picking up the bill for the care of individuals who are properly the legal responsibility of the NHS, in the knowledge that local authorities have no financial redress in law.

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The court held that there was no bar to the Council pursuing a private law claim in restitution for its expenditure and found in its favour.

The judgment in Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) can be accessed by clicking here.

The updated NHS Who Pays (2020) guidance seeks to address part of the problem in these proceedings by stating – in emboldened type – that (para 1.4 ):

No necessary assessment, care or treatment should be refused or delayed because of uncertainty or ambiguity as to which NHS commissioner is responsible for funding an individual’s healthcare provision.