A High Court judge has quashed the Department of Health’s continuing healthcare policy in a landmark legal challenge in Northern Ireland.

Commissioner for Older People for Northern Ireland Eddie Lynch (pictured) acted on behalf of Robin McMinnis, a 75-year-old man who is quadriplegic, living with multiple sclerosis and other complex healthcare needs, who was denied NHS continuing healthcare (CHC) and subsequently has been self-funding his healthcare in a nursing care home.

The quashed Department of Health’s policy had effectively restricted the availability of CHC to those receiving treatment in hospital.

In essence, the concept of CHC is based on the fact UK healthcare is based on need and free at the point of delivery. In 1999, the Court of Appeal in R v North and East Devon Health Authority, ex p Coughlan [2000] 2 WLR 622 determined when a person’s care would be the NHS’s responsibility. The court accepted that ‘where the primary need of an individual is a health need, then the responsibility is that of the NHS’. This landmark case established the foundation of CHC policy in England and Wales.

If an individual’s primary need for care is for health, CHC should be provided for free by the NHS, regardless of the individual’s wealth or setting of their care. The funded package can be provided in hospital, in a care home or in a person’s own home.

However, health authorities across England and Wales continue to incorrectly assess individuals’ needs, leading to a huge financial burden and, more often than not, individuals having to sell family homes to pay for nursing home costs.

The cost of care is a real concern for many. If not eligible for CHC, patients with assets in excess of £23,250 (£50,000 in Wales) will normally be required to fund their own care, save where one of a number of other exemptions apply. The healthcare analysts LaingBuisson confirmed the cost of care in the UK has risen by almost 10% in the past year to £41,600 per annum for a residential care placement and £56,056 for a nursing home placement. However, it is not uncommon to see nursing care fees of £8-£10,000 a month.

The policy for assessing NHS CHC differs throughout the UK. While the judgment in Northern Ireland does not affect the position in England and Wales, it is a reminder that the policy must be fair and should not restrict the availability of funding. In England and Wales, there is a National Framework which helps the health authorities to assess who is eligible.

Unhelpfully, there is no strict or simple legal definition of what does or does not amount to a primary healthcare need; and the assessment tools are very subjective leading to restrictive decisions. Despite an ageing population, NHS England figures show the number of people eligible for funding has dropped by 20% since 2015.

The full NHS funding is not based on a diagnosis of an illness, or the fact an individual is being well cared for. It is based on the type and amount of care someone requires to meet their needs.

Retrospective claims for unassessed periods of care can also be made back to April 2012 if a person has been in care for some time or has since died, with over £400m being paid out by the NHS in redress for past periods of care.

Unfortunately, individuals are often wrongly assessed. The process of assessment is very subjective, leading to a postcode lottery across England when it comes to individuals receiving CHC, as illustrated by the quarterly statistics published by NHS England. For example, the number of people receiving NHS CHC in Bury is 246 per 50,000 as opposed to 14 in Berkshire West. The Department of Health statistics also show a clear north-south divide, with 72 per 50,000 eligible in the north-west and 65 in the north-east and Yorkshire, compared with 44 in the southeast, 43 in the south-west and 35 in London.

If families are unhappy with a decision, it can be challenged through the NHS appeals process, which has two stages, culminating in an Independent Review Panel. Although challenging wrong assessments can be time-consuming, statistics from the Department of Health highlight that 18% of challenges are successful at Integrated Care Board level, and a further 30% on a national level. It can remove the heavy financial burden for those who find themselves losing family homes, income and sometimes relatives being forced to pay top-up payments for long-term care. Spotting the potential issues with long-term care fees for private clients is crucial.

Lisa Morgan is a partner and head of the care home fee recovery team at Hugh James Solicitors

Topics