Brave new world: continuing healthcare delays under court scrutiny

I want to talk about the case if Surrey County Council v NHS Lincolnshire Clinical Commissioning Group from 2020. This case largely slipped past under the radar for anyone who doesn’t have a special interest in continuing healthcare and the interplay between health and social care. But it was very interesting to me, and it might be of interest to you too.

In my experience, continuing healthcare is one of the areas of social care work that if you are not involved in this work regularly and most of your knowledge comes from reading about it, you’d be forgiven for thinking it is a straightforward process that is running smoothly. And if you are involved regularly, you know how far from the truth that idea really is.

Part of the reason for that is that cases on this issue are few and far between. The Coughlan case from 2001 continues to be the leading case on this issue, after all. In my opinion, this is down to politics. You see, the people with the most to lose or gain in cases where there isn’t agreement about continuing healthcare eligibility are the CCG and the local authority. Whilst the individual will have some stake in the issue, because it will effect whether or not they pay a contribution, this is not usually sufficient to motivate a member of the public to bring a legal challenge against a CCG. It’s an intimidating process, and I don’t blame them for being put off. Especially when a number of mistaken assumptions continue to perpetuate about automatic changes to care packages because of continuing healthcare eligibility. I know I am not the only person who has has to correct presumptions that direct payments aren’t possible under continuing healthcare, or that a person will be made to move if their care is NHS funded.

Anyway, CCGs and Local Authorities have a pretty high stake in these issues. Care packages that are the subject of disputes about this are often expensive and likely to continue for years. For local authorities there is also the (often mostly theoretical) risk that they will be acting outside of their powers if they are commissioning a service that should be provided through CHC. And they do argue about these cases, and they argue often. In my area they argued so much I created a ‘myth-busting’ document to bring attention back to the Framework and Standing Rules.

But public bodies also have duties to co-operate with each other. They have to ‘play nice’ or at least appear to be doing so. So most of these arguments take place behind closed doors. Bringing court proceedings, or any negative scrutiny against ‘partners’ is against the informal rules of engagement public authorities have in place. For good reason, since ultimately all public bodies are funded through tax payer cash, and really ought to be spending that money on their statutory duties, not on expensive lawyers whilst trying to get access to each other’s budget. Courts tend to take a dim view of such behaviour, for understandable reasons.

And that is why this case caught by eye. Surrey County Council took a step that was either brave or stupid: they brought proceedings against a CCG. Interestingly, not their home CCG, that would have been even more astounding. But still – shots fired.

On reading the judgment, you might think this was an extraordinary case, given that this person wasn’t assessed for CHC for about 8 years, despite numerous referrals. It isn’t that extraordinary though.

I hope that attitude of the CCG is extraordinary though. Because in the judgment they don’t exactly shower themselves in glory. The main reason delays occured was because the NHS Trust as it was then (the facts in issue started before CCGs existed) declined to assess the person for CHC because they considered a different NHS Trust was responsible. This approach gets local authorities nowhere, since they are under a duty to ensure that the person’s care is not affected by any ordinary residence dispute. No such duty, whether statutory or from guidance, existed for the NHS bodies at the time, apparently.

It doesn’t help that the NHS Trust were wrong in that position, yet they repeated this error. So did the PCT that came afterwards, then the CCG after that. Egg on some faces, I am sure.

Their main defence to Surrey CC’s claim for compensation because of unjust enrichment appears to have been that a) this was the wrong court and the claim should have been through judicial review and b) that the claim isn’t viable because the CCG didn’t benefit from their error, as the money saved was spent on care for others. I’ll go through why neither argument succeeded in a moment.

I want to talk a little bit about restitution and unjust enrichment for a moment. Much like the inherent jurisdiction that I wrote about last time, these principles are born of case law, not statute. This makes them somewhat loosely defined and they are usually only relied upon where no other, more defined, cause of action exists. Which is precisely the issue with these cases. Whilst the statute sets out what is expected from the public bodies, it doesn’t state what they should do if a problem occurs. And there is no clear contract that can provide cause of action, since no agreement has even been signed governing these situations.

For what it is worth, when in a similar position, I argued breach of statutory duty as well as unjust enrichment. But I was ‘taking a punt’ as it were. And for the reasons set out above, that argument went nowhere near a court so I’ve no way of knowing if it would have succeeded and I am sure Surrey instructed someone much cleverer than me who had good reason for framing the case the way they did.

Now, back to the argument in this case. The point about the correct forum is an interesting one, not least because the timeframes for a judicial review to be brought are so short that Surrey were well and truly out of time for such a case.

For reasons that appear to have been driven by public policy arguments, the court rejected that argument. Which makes sense, as the contrary approach would somewhat incentivise this kind of error by CCGs. And these issues occur regularly enough as it is.

As to the CCG’s second argument, that didn’t succeed either. It would have been remarkable if it had succeeded, given that this would have provided any public body with carte blanche protection against this type of case, since they do not ‘profit’ from any action they take or do not take, their entire budget being applied for public benefit one way or another.

It will be interesting to see if this results in a change in approach from CCGs or local authorities, regarding disputes about continuing healthcare eligibility. Court involvement should always remain the last resort, but when an impasse is reached, this case may well provide a route map for resolution through the courts instead.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority