NHS Continuing Health Care judgment
This is an interesting and novel case concerning a dispute between an English local authority and an English Health Body – a Clinical Commissioning Group (CCG). Although the equivalent body in Wales is a Health Board – the High Court findings would appear to be equally applicable in Wales.
The case involved a private law claim brought by a local authority against CCG to recover sums it had paid for the costs of accommodating and for 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 health body) but due to the statutory limitation period the claim was restricted £310,000.00 plus interest.
In 2008 the council asked the relevant NHS Trust to undertake an assessment of the young man’s eligibility for NHS Continuing Health Care (CHC) funding, The Trust refused (unlawfully) and this refusal persisted until 2015 when the relevant CCG accepted responsibility and the young man’s eligibility for CHC funding.
The council then sought reimbursement for its prior expenditure (ie to 2008) but this became protracted – in part due to the lack of clarity over resolution of 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 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.
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  EWHC 3550 (QB) can be accessed by clicking here.
In anticipation of the judgment the NHS in England has updated its guidance on NHS responsibilities (entitled ‘Who Pays’ 2020) which now states – 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.
The cases, and the action taken by NHS England highlight the need for a similar amendment to be made to the equivalent Welsh Guidance ‘Responsible Body Guidance for the NHS in Wales’ (2013).
Photograph of ‘Y Fron’ by Richard Jones -@lluniaurich
Posted 27 December 2020