In R (Gossip) v NHS Surrey Downs CCG [2019] EWHC (Admin), Mr Gossip judicially reviewed NHS Surrey Downs CCG’s (the “CCG”) decision that he was not eligible for NHS Continuing Healthcare funding (CHC). Mr Gossip suffered a severe spinal injury resulting in tetraplegia, neurogenic bowel and bladder, autonomic dysreflexia, postural hypotension, severe spasticity and severely impaired respiratory function. Despite this, he was able to work and had a carer funded partly by the local authority and partly by the CCG. Mr Gossip was concerned about the cost of funding his own care when he was due to retire as the local authority may no longer be willing to fund the level of care that he required. He was advised by the Spinal Injuries Association that he should be wholly funded by CHC.

A multi-disciplinary team (MDT) comprising a social worker and a nurse completed a decision support tool (DST) recommending eligibility although there was a dispute between the social worker and nurse in respect of some of the domains. An eligibility panel (comprising only CCG representatives) did not uphold the DST’s recommendation and assessed Mr Gossip as not being eligible for CHC. Mr Gossip appealed this decision but it was upheld by an Independent Review Panel. Mr Gossip then sought to judicially review the decision of the CCG on ten separate grounds, the most relevant of which were:

1. The CCG had acted unlawfully by failing to follow the requirements of the National Framework for NHS Continuing Healthcare and NHS-funded nursing care to:
   
   a. accept the recommendation of the DST as the CCG had not established that there were exceptional reasons not to follow it
   b. refer the matter back to the MDT
   c. consider the cases of Coughlan or cases in the Health Service Ombudsman’s report on NHS funding for the long-term care of old and disabled people in the assessment of severity of needs.
2. The CCG had acted unlawfully by failing to apply the test for a primary health need as set out in Regulation 21(7) of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012
3. The CCG had acted unlawfully by failing to consult with the local authority and to refer Mr Gossip’s case to the joint review panel (as required by its operational policy) when there was a dispute

The administrative Court refused Mr Gossip’s application for judicial review on every ground. Of particular relevance, Upper Tribunal Judge Allan (sitting as a Judge of the High Court) held:

1. The judicial review had been directed at the wrong organisation. Mr Gossip should have been challenging the decision of the IRP, as it was the appeal bod
2. The CCG is the final decision maker in determining NHS continuing healthcare eligibility. The Framework is a relevant factor in the decision making process (and should not be ignored) but it is no more than that
3. The Court was reluctant to comment on the substantive decision where the CCG had undertaken a decision that was detailed and careful and it was clearly aware of the key question it had to answer
4. The CCG sufficiently discharged its limited duty to consult with the local authority in so far as reasonably practicable by inviting the local authority to participate in eligibility panels even where the local authority was not always able to attend
5. Where a CCG has a more onerous policy than prescribed by the statutory framework in respect of the constitution of eligibility panels, it will be unlawful for it not to follow this.

We understand that Mr Gossip does not intend to appeal the decision.

What to take away

This case provides useful guidance for CCGs in the management of CHC assessments. In particular, it reiterates that the CCG is the ultimate and sole decision maker in determining whether an individual has a primary healthcare need. Therefore while the local authority should be consulted in respect of any assessment, if there are issues with the local authority engaging, the CCG does not need to have their agreement to every eligibility decision (provided it has not bound itself to this within its own policies). However the CCG must follow its own policy processes.

It also provides useful guidance on the interaction between the Framework and the statutory requirements set down by Parliament for CHC assessments. Many of the requirements of the Framework are permissive (“should”) rather than mandatory (“must”) and, provided that a CCG does not ignore the Framework, it is entitled not to follow the Framework’s recommendations where there are reasons not to do so.

Furthermore, where an appeal has been made to the IRP the Claimant should challenge that decision in the first instance and not the decision of the CCG. We expect that this will significantly reduce the number of direct challenges that the CCGs receive and increase the number of challenges received by IRPs.

How can Capsticks help

Our team of public law experts are well versed in challenges to CHC decision making – both in terms of challenges to assessments, reviews of care needs for those who are eligible and policies. We frequently provide advice and training to commissioning organisations about potential pitfalls in CHC assessments, the appropriate processes to adopt and how best to avoid and to respond to complaints and legal challenges.

For more information, please speak to Adam Hartrick, Francis Lyons and Tracey Lucas.