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England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Grogan, R (on the application of) v Bexley NHS Care Trust & Ors [2006] EWHC 44 (Admin) (25 January 2006)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/44.html
Cite as: [2006] LGR 491, [2006] EWHC 44 (Admin)

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Neutral Citation Number: [2006] EWHC 44 (Admin)
Case No: C012008/2005

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
25/01/2006

B e f o r e :

THE HONOURABLE MR JUSTICE CHARLES
BETWEEN:

____________________

THE QUEEN on the application of

MAUREEN GROGAN
Claimant
v.

BEXLEY NHS CARE TRUST
Defendant
SOUTH EAST LONDON STRATEGIC HEALTH AUTHORITY
First Interested Party
SECRETARY OF STATE FOR HEALTH
Second Interested Party

____________________

Richard Gordon QC and Stephen Cragg (instructed by Morrison Spowart) for the Claimant Tim Ward (instructed by Capsticks ) for the Defendant
Elisabeth Laing (instructed by the Solicitor of the Department) for the Second Interested Party
Hearing dates: 6,7,8 December 2005

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Charles J :

    Introduction

  1. The underlying issue in this case concerns who should pay for the accommodation and care of the Claimant. This engages the question whether it should be provided by the NHS, or whether it should continue to be provided by the local authority. If the former it will be provided free of charge, if the latter the Claimant has to contribute to the cost of her accommodation and care because its provision by the local authority is means tested.
  2. The present position has been reached because the Claimant has been assessed by the Defendant (the Care Trust) as a person who does not qualify for "Continuing NHS Health Care". The Claimant maintains that this assessment is flawed because it is based on criteria that are flawed.
  3. It was accepted in argument that the overall question for me is whether in carrying out its assessment the Care Trust took a lawful approach in, and by applying, its criteria.
  4. It was also accepted and asserted by the parties that the correct legal approach is an application of the Primary Health Need Approach (described below).
  5. The criteria applied by the Care Trust (the Criteria) are found in a document entitled NHS Continuing Care Policy (Continuing Care in Bexley, Bromley, Greenwich, Lambeth Lewisham and Southwark) dated December 2002.
  6. The Criteria purport to implement guidance (the Guidance) contained in a circular issued in June 2001 by the Secretary of State (the S/S) entitled Continuing Care: NHS and Local Council's Responsibilities HSC 20011015. The Guidance was issued after, and to take into account, the decision of the Court of Appeal in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213.
  7. As appears from a note agreed by counsel it was common ground in this case that the Guidance, and the other relevant guidance given by the S/S, were not directions under s. 17 of the National Health Service Act 1977 (the 1977 Act) and that therefore the comments of Dyson J in R v North Derbyshire Health Authority ex p Fisher (1998) 1 CCLR 150 at 158 H/K apply to it. This was subject to the qualification that limited directions are contained on page 1 of HSC 2001117 and page 3 of HSC 2003/0006. It was also so agreed that (a) the Guidance is therefore intended to provide a steer to local authorities and certain health care bodies on particular issues which are relevant to the exercise of their relevant functions following the decision in Coughlan, and (b) that paragraph 2 of the Guidance asks health bodies to ensure that their continuing health care policies comply with the Guidance and therefore they must have regard to it in carrying out their statutory functions.
  8. In the Coughlan case the critical question was whether:
  9. " ---- nursing care for a chronically ill patient may lawfully be provided by a local authority as a social service (in which case the patient pays according to means) or whether it is required by law to be provided free of charge as part of the National Health Service" (see paragraph 1).

    In Coughlan a number of further questions arose if local authority provision was lawful, in particular as to the effect of an assurance. The judge had decided that both general and specialist nursing care were the sole responsibility of the NHS and that nursing care was "health care" and could never be "social care" (see paragraph 19 of the judgment in Coughlan where the financial and other consequences of that view are set out).

  10. The focus of the debate in Coughlan was therefore on nursing care and whether any nursing care could lawfully be provided by a local authority. For example this appears from the heading preceding paragraph ] 8 of the judgment: "Nursing as "health care" and as "social care". The answer lay in the correct interpretation of the relevant statutory provisions.
  11. The Court of Appeal found that the judge had been wrong and that:
  12. "30. The result of the detailed examination of the three sections can be summarised as follows.
    (a) The Secretary of State can exclude some nursing services from the services provided by the NHS. Such services can then be provided as a social or care service rather than as a health service.
    (b) The nursing services which can be so provided as part of the care services are limited to those which can legitimately be regarded as being provided in connection with accommodation which is being provided to the classes of persons referred to in section 21 of the 1948 Act who are in need of care and attention; in other words as part of a social services care package.
    (c) The fact that the nursing services are to be provided as part of social services care and will have to be paid for by the person concerned, unless that person's resources mean that he or she will be exempt from having to pay for those services, does not prohibit the Secretary of State from deciding not to provide those services. The nursing services are part of the social services and are subject to the same regime for payment as other social services. Mr. Gordon submitted that this is unfair. He pointed out that if a person receives comparable nursing care in a hospital or in a community setting, such as his or her home, it is free. The Royal Commission on Long Term Care, in its report, "With Respect to Old Age" (Cm 4192-1) (March 1999), chapter 6, pp 62 et seq, not surprisingly agrees with this assessment and makes recommendations to improve the situation. However, as long as the nursing care services are capable of being properly classified as part of the social services responsibilities, then, under the present legislation, that unfairness is part of the statutory scheme.
    (d) The fact that some nursing services can be properly regarded as part of social services care, to be provided by the local authority, does not mean that all nursing services provided to those in the care of the local authority can be treated in this way .. The scale and type of nursing required in an individual case may mean that it would not be appropriate to regard all or part of the nursing as being part of "the package of care" which can be provided by a local authority. There can be no precise legal line drawn between those nursing services which are and those which are not capable of being treated as included in such a package of care services.
    (e) The distinction between those services which can and cannot be so provided is one of degree which in a borderline case will depend on a careful appraisal of the facts of the individual case. However, as a very general indication as to where the line is to be drawn, it can be said that if the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide to, the category of persons to whom section 21 of the 1948 Act refers and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide, then they can be provided under section 21. It will be appreciated that the first part of the test is focusing on the overall quantity of the services and the second part on the quality of the services provided.
    (f) The fact that care services are provided on a means tested contribution basis does not prevent the Secretary of State declining to provide the nursing part of those services on the NHS. However, he can only decline if he has formed a judgment which is tenable and consistent with his long-term general duty to continue to promote a comprehensive free health service that it is not necessary to provide the services. He cannot decline simply because social services will fill the gap.
    31. It follows that we do not accept the judge's conclusion that all nursing care must be the sole responsibility of the NHS and has to be provided by the health authority. Whether it can be provided by the local authority has to be determined on an assessment of the circumstances of the individual concerned.
    117. Our conclusion may be summarised as follows
    (a) The NHS does not have sole responsibility for all nursing care. Nursing care for a chronically sick patient may in appropriate cases be provided by a local authority as a social service and the patient may be liable to meet the cost of that care according to the patient's means. The provisions of the 1977 Act and the 1948 Act do not, therefore, make it necessarily unlawful for the health authority to decide to transfer responsibility for the general nursing care of Miss Coughlan to the local authority social services. Whether it was unlawful depends, generally, on whether the nursing services are merely (i) incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide. Miss Coughlan needed services of a wholly different category. "
    (my emphasis)
  13. As appears from those citations of the conclusions of the Court of Appeal they decided that the judge had been wrong to conclude that nursing care was the sole responsibility of the NHS, but that the degree of nursing care that Miss Coughlan required was such that she was not someone to whom a local authority could lawfully provide the nursing services she needed.
  14. In the context of the Coughlan case this meant that the decision to close the NHS facility at which Miss Coughlan (and others) lived and were cared for was unlawful and her assessment, on the criteria that lay behind that closure decision, was also flawed.
  15. In Coughlan the Court of Appeal record at paragraph 31 that:
  16. "The Secretary of State accepts that, where the primary need is a health need, then the responsibility is that of the NHS, even when the individual has been placed in a home by a local authority. The difficulty is identifying the cases which are required to be placed into that category on their facts in order to comply with the statutory provisions. Here the needs of Miss Coughlan and her fellow occupants were primarily health needs for which the health authority is as a matter of law responsible, for reasons which we will now explain. " (my emphasis)
  17. The S/S maintains that acceptance and assertion of policy and approach and maintains that it is reflected in the Guidance. The parties before me and thus the Claimant, the Care Trust (the Health Authority, who took no active part) and the S/S all accepted that this policy and approach was one that had regard to the whole package of care and not to constituent parts of it and thus if a person's primary need is a health need then the NHS will be responsible for providing for that need (and thus for that person's accommodation if that is a part of the overall need). I shall refer to this as the "Primary Health Need Approach".
  18. This is an "all or nothing" approach in the sense that the S/S and Care Trust accept that if the Claimant's need is primarily a heath need, then the NHS has the responsibility for providing her with accommodation either by providing an NHS facility, or by funding the costs of her local authority accommodation and her care by the local authority through arrangements made under ss. 3 and 23 of the 1977 Act. As I understand it the latter would be the more likely. Either way the Claimant avoids a means test and paying for her accommodation and care.
  19. The main statutory provisions

  20. These are ss. 1 and 3 of the 1977 Act and s. 21 of the National Assistance Act 1948 (the 1948 Act). Under both statutes accommodation can be provided. Under s. 3 of the 1977 Act it is ,,---- accommodation for the purpose of any service provided under this Act", and under s. 21 of the 1948 it is "residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention that is not otherwise available to them". Section 21 (8) of the 1948 Act is important and provides that: "nothing in this section shall authorise or require a local authority to make any provision ---------- authorised or required to be provided under the 1977 Act".
  21. The relevant provisions are set out, analysed and discussed in paragraphs 22 to 29 of the judgment in Coughlan. The conclusions reached on their effect are set out in paragraphs 30 and 117 thereof, which I have set out earlier. I do not propose to try and summarise, or re-write, the reasoning of the Court of Appeal.
  22. Since the Coughlan case s. 49 of the Health and Social Care Act 2001 (the HSCA 200 I ) has been passed.
  23. Its enactment followed a Royal Commission on long term care which reported in March 1999. Its primary recommendation was that personal care should be available, after an assessment, according to need, and paid for from general taxation. The Commission also made some other recommendations for making the charging system fairer, one of which was to exempt care which involves the knowledge or skills of a registered nurse from residential means testing. It suggested a subsidy from the NHS of approximately £100 a week to reflect the difference between a placement in a nursing home and a residential home (the nomenclature in 1999). The Government accepted this recommendation in its response, published at the same time as the NHS Plan in July 2001.
  24. Paragraphs 2.8 to 2.10 of the NHS Plan: the Government's response to the Royal Commission on Long Term Care said:
  25. "There can be no justification for charging people in care homes for their nursing costs. We will make nursing care available from the NHS to everyone in a care home who needs it. Both the report of the Royal Commission and the Note of Dissent to it supported this. In the future, the NHS will meet the costs of registered nurse time spent on providing, delegating or supervising care in any setting. This is a wider definition than that proposed in the Note of Dissent which suggested it should include those tasks that only a registered nurse could undertake. Therefore, people identified as needing nursing home care will no longer have to meet any of the costs for the registered nurses involved in their care. Instead the NHS will meet those costs. People who can afford to do so will still have to make a contribution towards their personal care and accommodation costs in a nursing home." (my emphasis)
  26. Section 49 HSCA 2001 provides that:
  27. "Nothing in the enactments relating to the provision of community care services shall authorise or requires a local authority, in or in connection with the provision of any such services, to;
    (a) provide for any person, or
    (b) arrange for any person to be provided with,
    nursing care by a registered nurse."

    "Community care services" has the same meaning as in section 46(3) of the National Health Service and Community Care Act 1990 Act (see section 59 of the HSCA 2001 Act). It, therefore, applies to nursing services provided under section 21 of the 1948 Act. .

  28. Section 49 therefore has the effect of prohibiting local authorities from providing, or arranging for the provision of, nursing care by a registered nurse in connection with the provision by them of community care services.
  29. Section 49(2) defines "nursing care by a registered nurse" as "services provided by a registered nurse and involving either the provision of care or the planning, supervision or delegation of the provision of care other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse". "Registered" in relation to a nurse means registered in the register then maintained by the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (and now by the Nursing and Midwifery Council) by virtue of qualifications in nursing.
  30. 1 accept that it should be noted that the effect of section 49 is that local authorities are not precluded from providing all other aspects of the care needed to meet a person's health needs in connection with the provision by them of community services, nor in that connection from providing services which are, in fact, provided by a registered nurse, but are not required to be provided by a registered nurse.
  31. I also accept that as submitted on behalf of the S/S that s. 49 of the HSCA 2001 has two aims:
  32. i) to strengthen the incentives for the NHS to ensure effective rehabilitation after acute illness or injury, and to reduce perverse incentives to discharge patients too early to the care of social services; and
    ii) that the NHS (in pursuance of its powers and duties under the 1977 Act) would provide or arrange nursing care by a registered nurse free of charge (and conversely, that a local authority could not provide it, or charge for it).
  33. In addition I accept as was common ground between the Claimant and the S/S that on its true construction s. 49 HSCA 2001 (a) concerns only the services of a registered nurse that had been, or could have been, previously lawfully funded by a local authority as nursing services that were part of (or incidental or ancillary to) the provision of social services, and (b) in effect simply transfers the funding (and arranging) of those services to the NHS.
  34. However, and as pointed out by the Claimant, it seems to me that s. 49 and the guidance given under, and in respect of it, has caused concern, problems and confusion. I return to this.
  35. The Claimant's case

  36. The Claimant relied heavily on the Coughlan case and the policy and approach of the S/S set out therein which the Claimant says establish the Primary Health Need Approach. The Claimant says that if Miss Coughlan's primary need was a health need so is hers and that her assessment as not being entitled to Continuing NHS Health Care carried out by the Care Trust must be flawed.
  37. In advancing this argument the Claimant focused her attack on the Criteria asserting that they did not properly reflect the Primary Health Need Approach. Albeit that the Criteria clearly seek to apply and follow the Guidance the Claimant did not assert that the Guidance was flawed. Rather the submission was that it was weak.

  38.  

  39. The Claimant's case was therefore that in applying the Criteria to decide that the Claimant did not qualify for Continuing NHS Health Care the Care Trust acted unlawfully because it did not apply the Primary Health Need Approach. The principal submissions made on her behalf were helpfully reduced to the following nine points:
  40. i) There is a legal division between health care and social care.
    ii) That division is reflected in the terms of the judgment of the Court of Appeal in Coughlan.
    iii) Coughlan is, amongst other things, authority for the propositions that: (a) where the nature of a patient's condition is such that an ill (including a chronically ill) patient needs, in the exercise of statutory power, to be accommodated for the provision of nursing care on a sufficiently extensive scale then the provision of that nursing care in that accommodation reflects a primary need for health care, (b) the NHS will in such a case be liable to fund that patient's health care in its entirety in respect of those nursing services and accommodation in which it is provided, (c) where a patient has a primary need for health care and, therefore, the need for nursing services is more than merely ancillary or incidental to the provision of accommodation in which nursing is provided, a local authority has no power to fund nursing care of any type.
    iv) Central Government Guidance appears at least to be capable of reflecting those aspects of the judgment in Coughlan.
    v) In the present case the Care Trust is bound to apply criteria that fully reflect the Coughlan judgment. Indeed, it purports to apply Criteria that fully reflect Central Government Guidance (and thus what I have referred to as the Primary Health Need Approach).
    vi) In the event, however, the Criteria do not fully reflect either the Coughlan judgment or (at least on a Coughlan-compliant reading of it) Central Government Guidance.
    vii) The RNCC (the Registered Nursing Care Contribution) high band (which has included the Claimant) and the RNCC medium band (which has included, and currently includes, the Claimant) contain assessment criteria that are coextensive with and/or overlap with those criteria entitling a patient to fully funded NHS care. It is, therefore, incompatible with both Coughlan and with Central Government Guidance for the RNCC to be applied as if it could only engage once a patient had been assessed as not qualifying for fully funded NHS care. (Moreover, whilst Government may not have intended it to do so, the creation of such a high level of nursing and need in the high band RNCC had led, in practice, to Trusts rejecting eligibility for NHS funded care unless a person's needs exceeded the condition referred to in high band RNCC).
    viii) The Claimant has been assessed under unlawful Criteria. Her assessment is therefore unlawful. Finally:
    ix) The fact that - as the RNCC assessments demonstrate - the nature of the Claimant's condition is such that she requires the regular supervision of a registered nurse (and other nursing care services) entitles her to fully funded NHS care in circumstances where - as here - the Care Trust purports to implement Central Government Guidance.
  41. The RNCC assessments arise because of s. 49 HSCA 2001, and I return to them.
  42. The position of the Local Authority providing accommodation and care to the Claimant

  43. The thrust and focus of the arguments of the parties has been on the approach of the NHS (the Care Trust and the S/S) and in particular that of the Care Trust. None of the parties had considered it necessary to serve the Local Authority with these proceedings albeit that it was accepted that a consequence of the argument of the Claimant was that the local authority had been, or may have been, acting unlawfully in accommodating and caring for the Claimant and in charging her for that accommodation and care.
  44. In my view the Local Authority should have been served with these proceedings and given the opportunity to advance argument and, if this case goes further, it should be given an opportunity to. seek to intervene.
  45. The Guidance is issued to Health Authorities and to. Laca1 Authorities and the latter are clearly affected by criteria put in place by Care Trusts and Health Authorities based thereon.
  46. I do not know what position the Local Authority would adopt in this case or the position that local authorities would adopt mare generally. The general position may have considerable resource implications for both local authorities and the NHS (as well as for the persons who suffer from an illness and need care by way of accommodation and other services and whose means are such that they would have to contribute to their cost if the services are provided by a local authority rather than the NHS).
  47. As counsel for the S/S said in opening her oral submissions, resources are very relevant to this case (and to. others like it) and thus to the approach taken by the two. sets of public authorities to determining which of them will provide relevant services.
  48. As appears from Coughlan the divide between the duties relating to the provision of health services and social services is not between two duties that are enforceable by individuals. This is because the duties of the local authority are so enforceable but the relevant duties of the S/S in respect of the NHS are "target duties". This was accepted by counsel far the Claimant in this case (but he indicated that he maintained it was arguable that some of those duties of the S/S were, or might be, directly enforceable by an individual). Also in Coughlan the question of what services the local authority could lawfully provide was the focus of the divide.
  49. Depending on the test or tests as to where the divide between the two duties lies and their application there could be an overlap, or a gap, between the provision of (i) social services together with incidental or ancillary health care, and (ii) the provision of health care. As I understand it the NHS and local authorities try to. co-operate to. avoid any such gaps which could cause very real difficulty and distress to. the individuals who may fall into them.
  50. However I accept as submitted on behalf of the S/S that the extent of her duties to provide health services is governed by the health legislation and not by the limits of the duties of local authorities. Thus I accept that there is potential for a gap between what the S/S (through the relevant health bodies) provides, or is under a duty to provide, as part of the NHS, and "health services" that could lawfully be supplied by local authorities.
  51. This view is supported by points made by Ouseley J in R (F, D and B) v Haringey London Borough Council [2005J EWHC 2235 (Admin), 21 October 2005 and drawn to my attention by counsel for the S/S. There the issue was whether a local authority or health body was responsible for the needs of a child. He held, at paragraph 52, and I agree, that the logical starting point was not section 49 of the HSCA 2001; that there is nonetheless a divide which has to be respected between health and social care provision (see also paragraph 61); at paragraph 61 that Coughlan is helpful as to "the indicators" relevant to that divide; at paragraph 62, that the scale and type of nursing is particularly important, as well as the question whether its provision is ancillary or incidental to the provision of some other service which the authority is lawfully providing, and whether it is of nature which such an authority can be expected to provide; at paragraph 63-67, and that the medical component of the provision can be important (as it was on the facts of that case). But Ouseley J concluded that even though the needs in that case were within the sphere of responsibility of the NHS, and not the local authority, and even though (paragraph 66) the care need was of long duration, and a failure in care would have grave consequences, a claim that the NHS body was under a duty to provide an extra ten (or possibly eight) hours of respite care to be provided by a nurse for the child's primary carer on top of the twenty-seven hours per week already provided (paragraphs 104 and 133 and 142), even when obligations under the European Convention on Human Rights were taken into account) failed. This decision therefore supports, as does Coughlan, the proposition that there is no individually enforceable entitlement to a particular level of care from the NHS.
  52. It seems to me that the Local Authority might well look at the issues in this case from a different angle to that taken by the parties which was to focus on the approach by the Health Authorities. In my view the Local Authority would be more likely to ask whether it is acting lawfully and thus to assess whether the services it is providing are social services and thus whether any nursing or other health services it is providing are incidental or ancillary to such social services.
  53. In my view when looked at from this side of the divide, or comparison, it would be understandable if a local authority excluded health care (e.g. care by a registered nurse) that was being funded by the NHS and asked whether the balance of what it was providing by way of accommodation and care was social services and thus something it could be expected to provide as a body providing social services. This is in part because the relevant provision of services by local authorities is a "last resort" (see paragraph 21 of Coughlan).
  54. Such an approach by the Local Authority would reflect the approach of the Court of Appeal in Coughlan because there the lawfulness of what the Health Authorities were proposing and doing was tested against what it would be lawful for a local authority to do in respect of the provision of services which the S/S legitimately decided under s. 3(1) of the 1977 Act it was not necessary for the NHS to provide.
  55. In argument in this case the S/S was at pains to point out that s. 49 HSCA 2001 and the RNCC appraisal only applied after it had been determined that the relevant person was not entitled to Continuing NHS Health Care applying the Primary Health Need Approach.
  56. The general position of the Care Trust and the S/S was that if, as they alleged was the case~ the Claimant did not qualify for Continuing NHS Health Care because her primary need was not for health care then the lo(;al authority would be acting lawfully because all the nursing care provided to the Claimant (including the care provided' by a registered nurse and funded by the NHS) would be (a) incidental or ancillary to the provision of accommodation that the local authority is under a duty to provide, and (b) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide (see Coughlan).
  57. They did not assert that there would be a gap and thus that the Claimant (or generally or regularly others) would have a need for some health or nursing services that were not being provided by the NHS but which could not be lawfully provided by the relevant local authority.
  58. In my view, notwithstanding the legislative potential for there being a gap in the provision of health services, if the policy is that there is to be no such gap, or generally there is to be no such gap, in applying the test the Care Trust and the S/S espouse (the Primary Health Need Approach) the elements of degree should be considered against the limit of the lawful provision of social services (together with incidental or ancillary nursing) by the local authority rather than simply by reference to "primary health need". On the test espoused by the Care Trust and S/S this approach must factor in the point that but for s. 49 HSCA 2001 the nursing care provided by a registered nurse could have been provided by the local authority applying the Coughlan case.
  59. The Registered Nursing Care Contribution (RNCC)

  60. As I have pointed out, on the arguments advanced, the position of the S/S and the Care Trust was that if the nursing care being provided to the Claimant by a registered nurse (and arranged and paid for by the NHS pursuant to s. 49 HSCA 2001) taken alone, or together with her other health service needs, were of such a nature and degree as to found the conclusion that her primary need was for health care then all of the Claimant's accommodation and care should be provided and paid for by the NHS.
  61. I accept that as the S/S argued:
  62. i) the correct interpretation of s. 49 HSCA 2001, the Guidance and the RNCC (and the circulars issued in respect of it, and the RNCC Workbook) is that the RNCC assessment comes in after a decision has been made that the relevant person does not qualify for Continuing NHS Health Care,
    ii) health care is not confined to nursing care, it has a number of aspects and all those aspects need to be considered in determining whether a person's primary need is for health care,
    iii) "continuing care" or "long-term care" is defined in paragraph 5 of the Guidance as "a general term that describes the care which people need over an extended period of time, as the result of disability, accident or illness, to address their physical and mental health needs. It may require services from the NHS and/or social care. It can be provided in a range of settings.",
    iv) paragraph 6 of the Guidance says that "continuing NHS health care describes a package of care arranged and funded solely by the NHS",
    v) the assessment process of the Claimant (and others in a similar position) has two stages. The first stage is the decision whether a person is eligible for continuing NHS health care. The second stage, which arises if the decision at the first stage is "no", is the determination whether, and if so, what, nursing care by a registered nurse that person requires. This second stage is referred to as the determination of the registered nursing care contribution, or "RNCC", and
    vi) s. 49 HSCA 2001 is not the logical starting point for determining the divide between health and social care provision that has to be respected (see R(T, D and B) v Haringey LBC referred to earlier).
  63. However I do not accept that this sequential analysis provides complete answers to the points raised by the Claimant or the problems identified by, for example, the Ombudsman or the Select Committee because:
  64. i) generally it fails to give proper weight to the point that the nature and extent of the nursing care a person requires (whether from a registered nurse or others) do not change as a matter of fact (or nursing need) between the first and second stages,
    ii) it assumes that the decision made at the first stage is correct, albeit that the point is made in the RNCC Workbook that the assessor should consider whether the person does meet the criteria for Continuing NHS Health Care. But as appears from the extract set out below this point is made in terms that a person would meet the criteria for Continuing NHS Health Care if conjunctively their needs "appear significantly greater than the high band of nursing need, and their primary need is for health care". It therefore envisages that a person whose needs are within the high band of nursing need would not for that reason alone qualify for Continuing NHS Health Care,
    iii) it does not have proper regard to the point that as a result of the enactment of s. 49 HSCA 2002 the position on the ground is that although the section only prohibits local authorities from arranging and funding such registered nursing care (and thus registered nursing care they could lawfully have provided) the practical result and reality is that registered nursing care is now provided and funded by the NHS, and the extent of that registered nursing care is gauged and characterised by reference to the bands described for the application of the RNCC and not by reference to any limit placed on the extent and nature of such nursing care that could be lawfully provided by a local authority applying the decision in Coughlan,
    iv) thus it does not have proper regard (a) to the nature and extent of the nursing needs described in the bands described for the application of RNCC as a matter of fact - and thus by reference to the actual nursing needs of the person who falls within those descriptions, (b) to the point that as a matter of fact and of nursing need, those needs are not capped, or altered by the time at which, or the purpose for which, the documents provide that the RNCC bands are to be applied, and (c) to the point that the RNCC bands are not described by reference to the limits of nursing care that could have been lawfully provided by a local authority prior to enactment of s. 9 applying the test in Coughlan, and
    v) and again generally it does not have proper regard to the question whether a person with nursing needs falling within .the descriptions in those bands has a primary need for health care, and thus to the effect at stage 1 of those nursing needs as a matter of fact and nursing need .
  65. Further as to the points made in the preceding paragraph:
  66. i) in the case of the Claimant the· assessment of her nursing needs for the purposes of deciding whether she qualified for Continuing NHS Health Care and for the RNCC was carried out by the same person on the same day. I was told that this often occurred. One can easily understand why this is so, and also that in some cases a further assessment may be carried out for the RNCC. But the approach to the assessments in this case makes it clear that the nature and extent of a person's nursing needs do not change between the stages, and
    ii) the sequential approach does not provide a satisfactory answer to the argument that as
    a) the focus in Coughlan was on nursing needs, and
    b) the conclusion was that Miss Coughlan's needs were primarily health needs and her nursing needs were not ones that the local authority could lawfully provide (see paragraphs 31,48 and 117),
    a proper application of Coughlan and the Primary Health Need Approach would mean that if any of the RNCC Bands describe a degree and nature of nursing care equivalent to that needed by Miss Coughlan a person who had those needs should at Stage 1 be found to be eligible for Continuing NHS Health Care.
  67. So I do not agree that the two aspects or stages of the assessment process, viewed in their sequential context, deal with quite distinct questions.
  68. Rather in my view at both stages the decision maker has to have regard to the nature and extent of the actual needs of the relevant person for nursing care (including at the first stage care by a registered nurse that cannot now be funded and arranged by the local authority - and would be provided and funded by the NHS - the RNCC). Indeed I did not understand this to be disputed.
  69. But in any event it seems to me that inherent within the two stage or sequential approach of the S/S is the point (and thus the message or steer given by it is) that as RNCC bands only come in at the second stage the fact that the extent and nature of a person's actual day to day nursing needs falls within any of the bands set for RNCC will not by itself (and thus a need for that type and extent of nursing care will not by itself) qualify a person for Continuing NHS Health Care applying the Primary Health Need Approach. I return to this when considering the Guidance and in particular paragraphs 21 and 22 thereof (paragraphs 68 to 70 hereof).
  70. Put from the perspective of what the local authority can lawfully provide (and the positions of the S/S and the Care Trust in this case) this message is that nursing care falling within all the descriptions in the RNCC bands is nursing care that is merely (i) incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide, and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide (see Coughlan).
  71. In my judgment whether or not this message or steer is correct cannot be assessed or justified by the sequential or two stage argument which in this respect is self serving.
  72. Rather it can only be properly answered by assessing the facts and thus the totality of the relevant needs at the first stage when the question arises as to whether the nature and degree of the nursing care alone or together with other factors means that the local authority cannot lawfully provide it in its totality and therefore if it is to be provided its provision falls on the NHS.
  73. The bands of RNCC are contained in the RNCC Workbook. It provides:
  74. i) at paragraph 3.5 that:
    "The form reproduced below should be used to record the determination of registered nursing care for the person in one of three bandings: high, medium, or low, within the framework of stability, predictability, risk, and complexity (emphasis in workbook). In making this determination, a holistic approach should be followed and consideration given to the totality of information gained from the domains of the single assessment and the care plan, which will also have addressed the key dimensions of instability, predictability, intensity, risk and complexity of needs (my emphasis). This information should be used by the designated NHS nurses alongside their professional skills, knowledge, and observations of the individual concerned, to inform the determination of registered nursing care needs within a nursing home setting. In evaluating all assessment information, full account must be taken of the prognosis of people's conditions, and the likely outcomes if help were not to be provided, or was provided in different ways. Attention should be paid to the full range of a person's problems, and not just those for which a nursing response is immediately obvious.",
    ii) at paragraphs 3.8 and 3.9 it describes the 'high band' and 'medium band' respectively as follows:
    "The High Band
    People with high needs for registered nursing care will have complex needs that require frequent mechanical, technical and/or therapeutic interventions. They will need frequent intervention and re-assessment by a registered nurse throughout a 24- hour period, and their physical/mental health state will be unstable and/or unpredictable.
    The Medium Band
    People whose needs for registered nursing care are judged to be in the medium banding may have multiple care needs. They will require the intervention of a registered nurse on at least a daily basis, and may need access to a nurse at any time. However, their condition (including physical, behavioural and psychological needs) is stable and predictable, and likely to remain so if treatment and care regimes continue. "
    iii) The terms used in those definitions are defined as follows in Box 3.1:
    "Stable: Health 'or disease process/disorder, including emotional, physical, behavioural and psychosocial needs, are in a steady state, and are likely to remain so if correct treatment/care regimes continue.
    Unstable: A fluctuating disease process/disorder, and/or emotional, physical, behavioural and psychosocial conditions, resulting in an alternating health state and requiring frequent or regular intervention or treatment.
    Predictable: How the patient responds to their health or disease processes/disorder or to any internal or external triggers can be anticipated with some certainty through established interventions and regularly reviewed care plans.
    Unpredictable: How the patient responds to their health or disease processes/disorder or to any internal or external triggers cannot be anticipated with certainty, and there is a requirement for ongoing assessment, care planning, intervention and review.
    At Risk: Abilities are compromised or absent most or all of the time; sensory loss is multiple; self-image is low. Frequent reassessment of risk is needed.
    Minimal Risk: Abilities present most of the time, but there is a need for regular reassessment of risk.
    Medium Complexity: Physical and mental needs are moderately complex; mechanical/technical and/or therapeutic assistance are needed regularly or intermittently. The interventions require regular reassessment.
    Highly Complex: Physical and mental needs are highly complex; mechanical/technical and/or therapeutic intervention are needed frequently, including frequent reassessment over a 24 hour period." (emphasis in workbook), and
    iv) at paragraph 3.11 being the guidance notes on completion of the RNCC state that:
    "Remember that the person's eligibility for NHS continuing care should be considered once assessment information has been evaluated and an appropriate care plan is being considered. If your examination of all the patient information leads you to think that in fact this person does meet the criteria for NHS continuing care (that is, their needs appear significantly greater than the high band of nursing need, and their primary need is for health care) the case should be re-directed." (emphasis in workbook, and I have referred to this above)
    v) at page 22 a case study is included to provide an example of a person who would fall within the High Band but whose assessment was that she required admission to a nursing home providing nursing care (my emphasis) but who under the two stage approach would not be assessed as having qualified for Continuing NHS Health Care .
  75. In my view when the description of the high band and that example (and the earlier example at page 21 of a High Band case) are considered in the light of the symptoms and needs of Miss Coughlan and the conclusion in Coughlan that she qualified for fully funded Continuing NHS Health Care it is easy to understand why:
  76. i) L. Clements, Community Care and the Law (3rd edition, 2004) states at paragraphs 10.148 and 10.150 that:
    "It is arguable that the Department [of Health] set the high level of support (i.e. the "high" band) above the level defined by the Court of Appeal [in Coughlan] as the point at which a person could expect full continuing care funding.
    It is likely that some patients assessed as falling within the "medium" band will also be entitled to continuing care."
    ii) why the Health Service Ombudsman has said in a letter to the Department of Health (which is set out in the record of the evidence to the Select Committee - see Volume II to its Sixth Report of Session 2004-05 (HC 399-ii) on NHS Continuing Care published on 3 May 2005 at page 98) in respect of the definition for high band RNCC that:
    " .... This definition does not allow for complexity, intensity and unpredictability of health care needs to be alternative types of qualifying need. Rather, a person must have "complex needs", and their physical/mental health state must be "unstable and /or unpredictable" in order to receive high band RNCC. A person must therefore either have complex and unstable, or complex and unpredictable health care needs. This, in itself, appears to create a higher threshold of health care need than would qualify a person· for NHS CC.
    In addition, however, a person will also need "frequent intervention and re-assessment by a registered nurse throughout the 24-hour period". This again appears to be a higher threshold than for continuing care eligibility, where the healthcare needs must only be such that they require "regular supervision by a member of an NHS multi-disciplinary team". Of course, a registered nurse could be a member of the NHS multi-disciplinary team.
    Consequently it is difficult to see how a person with healthcare needs that properly place him or her at high band RNCC would have even reached the stage of an RNCC assessment had he or she been properly assessed for NHS Cc. This is because the level of health care needs that warrant high band RNCC would seem to be, at the least, equivalent to those that should qualify a person for continuing care funding, if not higher. It would seem to us therefore that a person properly assessed for nursing needs and in receipt of high band RNCC, on the basis that the person. bas intense nursing needs and/or complex nursing needs, would qualify for NHS CC funding.
    It is our view that the threshold for high band RNCC was set at such a level that confusion with NHS CC was inevitable, and that injustices will continue to occur without urgent action to clarify matters. The current situation has worked to the disadvantage of many old and vulnerable people and their relatives who, as a result, have been wrongfully refused continuing care funding.
    Due to our concerns about the compatibility of high band RNCC with refusals of NHS CC, we placed on hold the further consideration of complaints where the aggrieved was in receipt of high band RNCC. Having now considered this matter further, and taken advice from Counsel, we ask that the Department provide urgent clarification as to the intention behind the words quoted above, and clarification as to how you require practitioners to distinguish between eligibility for high band RNCC and eligibility for NHS continuing care funding. Upon receiving that clarification, the Ombudsman may then seek further advice from Counsel as to the legality of that approach and the decisions made by trusts and strategic health authorities in complaints we are holding and decide how we should proceed on the complaints we have on this matter. This could be by launching a series of investigations against trusts and authorities, or, preferably, by us agreeing a way forward on the matter strategically, and resolving the complaints en bloc (for example by asking trusts and strategic health authorities to agree NHS CC for these meeting high band RNCC or to reassess patients for NHS CC using your new advice and guidance). (bold my emphasis, italics in the report)", and
    iii) why the Select Committee in its Sixth Report of Session 2004-05 (HC 399-i) on NHS Continuing Care published on 12 April 2005 at paragraphs 89-103 under the headings "Confusion over the. Registered Nursing Care Contribution" and "Questions over whether the criteria are actually Coughlan-compliant" considered the overlap between high or medium band RNCC and continuing care fully funded by the NHS and the effect of Coughlan and the extent to which the findings of the Court of Appeal in Coughlan have been implemented by Health Authorities, and reported:
    "To qualify for high band nursing care [RNCC], people will need to be assessed as having an "unstable" or "unpredictable" state of physical health. However, as people assessed as qualifying for fully funded continuing care must also have "unstable" and "not easily predictable" health care needs, this raises the question of whether it is possible to distinguish between high band nursing care and continuing care funding. This confusion was raised in many written submissions, and was also a major finding of the independent review [commissioned by the Department of Health]. (para. 91)
    It seems to us, and is supported by our legal advice, that if a person's needs for registered nursing care are deemed to be at high band RNCC level, it is difficult not to say that that person should also be eligible for NHS continuing care funding, given the similarity of the wording ... it is difficult to see how a person with healthcare needs that properly place him or her at high band ·RNCC would even have reached the stage of an RNCC assessment, had he or she been properly assessed for NHS continuing care. This is because the level of health care needs that warrant high band RNCC would seem to be, at the least, equivalent to those that should qualify a person for continuing care funding, if not higher. (para 93)
    It seems to us a nonsense that two separate systems exist for assessing eligibility for fully funded NHS continuing care and for nursing care contributions as fundamentally both systems are doing the same thing, which is determining NHS funding of ongoing health care. We have heard from several authoritative sources, including the Ombudsman, that the criteria for assessing eligibility for continuing care and high band nursing care are virtually indistinguishable from each other, causing considerable problems for those charged with applying them, and raising the possibility that, in fact, everyone who qualifies for high band RNCC should also automatically qualify for fully funded continuing care. (para 96)
    We are surprised that these two distinct policies regarding the funding of ongoing health care have been developed by the same Department with seemingly no regard for ensuring coherence or harmony between the two systems. We urge the Government to put right this confusion and end unnecessary bureaucracy immediately. It seems to us that the simplest way to achieve this would be to integrate the two systems. If the two systems continue to co-exist, there must be clarification of the interaction between them, and we recommend simplification of the banding system. (para 97)
    The Minister has stated that all 28 sets of eligibility criteria now operating [by Health Authorities both for fully funded NHS care and for high and medium band RNCC] are legal and in line with current guidance. However, we have received evidence which calls this in to question, arguing that in fact the Coughlan case itself would have failed to meet the requirements of current eligibility criteria, either for NHS continuing care, or for high or even medium band RNCC, as Pamela Coughlan's condition was stable and predictable, although she had high level nursing care needs. Mackintosh Duncan solicitors, who specialise in continuing care law, told us that of the many sets of eligibility criteria they have seen which are currently being used, "none of those criteria are in accordance with the Coughlan judgment". These are very serious charges which the Government must answer. The new national eligibility criteria must be explicitly Coughlan-compliant, ensuring that all people whose primary need is for 'health care will receive fully funded care, even if this requires a fundamental revision of the definitions and terminology of the criteria. (para 103) (my emphasis)"
  77. It was also drawn to my attention that despite the guidance from the Department of Health and in the Coughlan case, the Health Service Ombudsman had earlier felt it necessary to issue a special report NHS funding for long term care (February 2003, HC 399) criticising both central government and individual NHS bodies in relation to their approach to the issue, and upholding a number of specific complaints from members of the public denied free NHS care. The Ombudsman reports:
  78. "A pattern is emerging from the complaints I have seen of NHS bodies struggling, and sometimes failing, to conform to the law and central guidance on this issue, resulting in actual or potential injustice arising to frail elderly people and their relatives (paragraph 1).
    I do not underestimate the difficulty of setting fair, comprehensive and easily comprehensible criteria. The criteria have to be applied to people of all ages, with a wide range of physical, psychological and other difficulties. There are no obvious, simple, objective criteria that can be used. But that is all the more reason for the Department to take a strong lead in the matter: developing a very clear, well-defined national framework. One might have hoped that the comments made in the Coughlan case would have prompted the Department to tackle this issue. However efforts since then seem to have focused mainly on policy about free nursing care. Authorities were left to take their own legal advice about their obligations to provide continuing NHS health care in the light of the Coughlan judgment. I have seen some of the advice provided, which was, perhaps inevitably, quite defensive in nature. The long awaited further guidance in June 2001 [HSC 2001/015] gives no clearer definition than previously of when continuing NHS health care should be provided: if anything it is weaker, since it simply lists factors authorities should 'bear in mind' and details to which they should 'pay attention' without saying how they should be taken into account. I have criticised some Authorities for having criteria which were out of line with previous guidance: except in extreme cases I fear I would find it even harder now to judge whether criteria were out of line with current guidance. Such an opaque system cannot be fair. (paragraph 31)"
  79. In my view these citations (alone and together with the statement of Pauline Ford referred to in paragraph 71 hereof) provide compelling confirmation of my wnc1usion that the sequential argument advanced by the S/S does not provide an answer to the issues and problems arising in respect of the RNCC (following the enactment of s. 49 HSCA 2001), and in particular those caused by the bands set in the RNCC Workbook, essentially because:
  80. i) the problems arise at the stage at which the decision falls to be made as to whether the actual nursing (and other) needs of a person mean that he, or she, qualifies for Continuing NHS Health Care on the application of the approach and policy of the S/S namely that he, or she, would do so if his or her primary need is a health need,
    ii) the bands are not described by reference to the nursing care that could have been lawfully provided by a local authority prior to the enactment of s. 49 (applying the Coughlan test),
    iii) of the argument that as a matter of fact registered nursing care falling within the high band (and perhaps the medium bands) falls outside that limit set by Coughlan, particularly when it is remembered that the focus of Coughlan was on nursing care and the decision of the Court of Appeal was that the care she needed was well outside the limits of what could be lawfully provided by a local authority, and
    iv) the second stage should not influence the decision at the first stage but a message or steer given by the Guidance and the RNCC Workbook, when read together in the light of the sequential approach, is that as the RNCC bands come in at the second stage the fact that the extent and nature of a person's actual day to day nursing needs fall within any of the bands set for the RNCC (and thus the high band) will not by itself (and thus a need for that type and extent of nursing care will not by itself) qualify for Continuing NHS Health Care on the basis that the primary need of that person is for health care (see paragraphs 54 and 68 to 70 hereof).
  81. They also call for the Department to revisit its guidance and the problems generally to assist the public bodies and individuals who have to make the important day to day assessments of the relevant individuals. I would respectfully add my voice to that request and add that it seems to me important that the Department do this rather than leaving matters in the hands of Care Trusts and Local Authorities, not least to promote a consistency of approach to the relevant issues which concern important and widespread issues of public importance and interest and are directed to decisions which can have a profound effect on the individuals concerned.
  82. The Guidance - the Policy and Approach of the S/S - the Primary Health Need Approach

  83. The Care Trust had regard to the Guidance, and the subject of these proceedings is the decision of the Care Trust. So the Claimant attacks that decision and thus the Criteria. There is no decision of the S/S that is the subject of review, the Claimant did not argue that the Guidance is unlawful and its terms are a matter for the S/S.
  84. However, in my view the terms and deficiencies of the Guidance (and the steer or guidance it gives alone and with other guidance from the S/S) are of background relevance to the Criteria and the approach adopted by the Care Trust.
  85. I accept that a careful reading of the Guidance on the basis that it is intended to implement the Coughlan case and the Primary Health Need policy stated therein (and in particular a reading of paragraph 6, the last sentence of paragraph 10, paragraph 17, the first and third bullet points of paragraph 18 (and thus Annex C) and the first bullet point in paragraph 21) indicate that the policy and approach taken by the S/S is that nothing in the Guidance alters, or is intended to alter, the NHS's approach as expressed by the S/S in Coughlan and thus that:
  86. i) if the relevant person's primary need IS a health need he qualifies for Continuing NHS Health Care, and
    ii) in assessing whether or not he has that primary need the totality of his needs and thus all his needs for health care fall to be take into account.
  87. Like the Ombudsman I accept and acknowledge that it is a difficult task to set fair, comprehensive and easily applicable and comprehensible guidance on the relevant questions and tests. I also accept and acknowledge that the relevant tests and criteria involve factors of degree which are both qualitative and quantitative and thus issues of judgment by persons with relevant expertise. However, in my view the Guidance is far from being as clear as it might have been and this has inevitably caused difficulty for this Care Trust (and others) in setting out its criteria, and to local authorities. In particular I consider that the following points have the result that the Guidance is not as clear as it could have been:
  88. i) the absence of a clear, distinct and early expression of the test and approach to be applied, and thus of the test or approach, against which the relevance and effect of the qualitative and quantitative criteria and factors listed in the Guidance have to be assessed, and
    ii) subject to the proviso set out below, the absence of an explanation that the Primary Health Need Approach is to be applied to achieve the result that all nursing care (including RNCC) is merely (a) incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide, and (b) of a nature which prior to the enactment of s. 49 HSCA 2001 it could have been expected that an authority whose primary responsibility is to provide social services could have been expected to provide, and could thus have been lawfully provided by a local authority (see Coughlan).

    The proviso is that, as the S/S argued before me, the approach to be adopted leads to the result that the relevant local authority can lawfully provide (or prior to the enactment of s. 49 HSCA 2001 could have lawfully provided) a person assessed as being ineligible for Continuing NHS Health Care with his accommodation and all health care needs (leaving aside available NHS services other than RNCC) and thus with all his nursing needs in the accommodation provided. (This approach could be modified by a definition limiting the nursing needs, including RNCC, and an assertion that it was those defined needs that the relevant local authority could have provided prior to the enactment of s. 49 HSCA 2001.)

  89. I informed counsel for the S/S that it seemed to me that sensibly drafted guidance as to the provision of Continuing NHS Health Care should inevitably include a clear and distinct expression of the overall test to be applied and thus the test to which the factors identified were relevant. I referred to s. 1 Children Act 1989 as an example of where this is done in respect of a test involving issues of degree, there are many other such examples. Counsel was unable to explain why it had been sensible or helpful not to include such a statement of the policy and approach of the S/S in the Guidance. In my view this did not indicate any failing by counsel, because there is no sensible explanation that she could have given.
  90. Paragraphs 21 and 22 of the Guidance are in the following terms:
  91. " 21. Following the Coughlan judgment, and until the implementation of section 49 of the Health and Social Care Act removing from local councils the responsibility for providing nursing care by a registered nurse, the eligibility criteria for NHS arranged and funded nursing services in nursing home should cover the following broad situations:
    22. Need for care from a registered nurse alone is not sufficient reason for receiving continuing NHS health care. When free nursing care is implemented from October 2001, no one, following an assessment of need, will be charged for the nursing care which they require from a registered nurse in a nursing home. Social Security benefits will still be available to those people in receipt of free nursing care. It is important that the needs of people placed in nursing home care are regularly re-assessed and appropriate support to promote independence provided wherever possible.
    Further guidance on the extension of NHS responsibility for services provided by a registered nurse will be issued over the summer. This guidance will also include further details on the commissioning process for patients in receipt of free nursing care in a nursing home."
  92. These paragraphs deal with the position leading up to and after the enactment of s. 49 HSCA 2001 and in paragraph 22 the extent of the care given by a registered nurse is not identified. This is done in the RNCC Workbook by the bands described therein.
  93. In my view when these paragraphs of the Guidance are read together with the RNCC Workbook (against the background of the sequential approach) they (and in particular paragraph 22) indicate that by itself a need for nursing care in the high (and medium) . bands does not qualify a person for Continuing NHS Health Care and thus that:
  94. i) the nature and extent of such care does not indicate a primary health need,
    ii) by reference to Coughlan such nursing services are merely (a) incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and (b) of a nature which it could have been expected that an authority whose primary responsibility is to provide social services could have been expected to provide prior to the enactment of s. 49 HCSA 2001, and
    iii) such nursing services are not on a par with the nursing needs of Miss Coughlan (which in Coughlan were found to be nursing services of a wholly different category to those which a local authority could lawfully provide).
  95. Further in my view this indication, and the message or steer it gives, is likely to promote the practical effects that:
  96. i) the persons charged with making the relevant day to day decisions will take the view that the' care described in all the RNCC bands could have been lawfully provided by the local authority applying the Coughlan test prior to the introduction of s. 49 HSCA 2001. This would have the following knock on practical effects on them, namely:
    (a) if the bands are wide, and in fact go beyond the Coughlan test as to what a local authority could have lawfully provided, of extending the amount of nursing care that they consider could have been lawfully provided by a local authority in accommodation it provides, and
    (b) setting the limit of social services at that level, and thus of affecting their view on where the line should be drawn between on the one side social services and on the other health services and, in particular, as to the assessment concerning which public body should be responsible for providing accommodation,
    or alternatively
    ii) the persons charged with making the relevant day to day decisions will focus their minds on the balance of the nursing care provided in the accommodation over and above that covered by the RNCC (because the practical effect of s. 49 HSCA 200 I, and the guidance in respect of it, is that nursing care by a registered nurse will be provided by the NHS), rather than on the question whether all the nursing care provided in the accommodation, and thus the nursing care so provided by registered nurses and by health care assistants and others under the direction or supervision of registered nurses and generally (a) could have been provided by the local authority applying the test set out in the Coughlan case, and/or (b) could alone or with other factors found the conclusion that the person has a primary health need that qualifies him for Continuing NHS Health Care.

    I reached these conclusions without reliance on the witness statement of Pauline Ford an adviser at the Royal College of Nursing (RCN) whose statement was made on behalf of the RCN. However, in my view they are supported by that evidence and in particular by paragraph 14 of her statement in which she says that although the S/S and the RCN understand the sequential nature of the RNCC process, nurses on the ground report differences in application and the process can be inverted. She then cites from a document entitled "Charging for the privilege of being ill? Problems and opportunities with long term care" RCN 2005. The citations include the following:

    "The RNCC system was viewed by many participants as increasingly anomalous and the cause of many difficulties. Not least, it is clear that the principle that assessment for NHS continuing care should always precede that for RNCC is widely flouted, and this in itself denies many patients access to fully funded care because their eligibility is never assessed (page 23 para. 3.4).
    --------------- The potential for confusion, overlap and omission between the two systems is legion (page 23, para 3.5) "
  97. In making the points in the preceding two paragraphs I acknowledge that there are a number of passages in the relevant guidance that make the point that the RNCC is not to make any change in the circumstances in which a person qualifies for Continuing NHS Health Care. For example, paragraph 1.7 of the Workbook which includes the following:
  98. "In addition the NHS is responsible for what is known as "continuing NHS health care", where the services to meet the totality of the patient's care should be arranged and funded entirely by the NHS. These responsibilities will remain unchanged; the requirement to fund the registered nursing care of people in care homes will not reduce the need to also make provision for continuing NHS health care ---- It may be helpful for easy reference to insert in the back of folder or the criteria for continuing health care that has been agreed by your Health Authority" (emphases in the Workbook)
  99. But in my view the indication identified in paragraph 70 hereof, and the guidance or steer it gives, is a departure from the Primary Health Need Approach asserted by the S/S before me and the guidance given in Coughlan, unless either:
  100. i) factually (and thus at the first stage) the nature and extent of the nursing described in the RNCC bands satisfies points (i), (ii) and (iii) in the paragraph 70 hereof, or
    ii) there is a gap between (a) the needs constituting a primary health need, and (b) the nursing care that could have been lawfully provided by a local authority prior to the enactment of s. 49 HSCA 2001 which is filled, or partially filled, by the RNCC nursing care.
  101. Further, in my view the pragmatic likelihood I refer to remains not least because the persons charged with the making of the relevant decisions have not had the benefit of the intensive study of the detail of the relevant guidance, the Coughlan case and the argument that has been a part of this case.
  102. Also, in my view when paragraphs 21 and 22 of the Guidance are read together with the RNCC Workbook (against the background of the sequential approach) they promote confusion, and can be read as supporting the view that they depart from the policy and approach asserted in this case and in Coughlan in that:
  103. i) the first bullet point in paragraph 21 to "someone's primary need for health care rather than accommodation" is arguably a move away from (a) the policy and approach stated in Coughlan (and here), and (b) the decision in Coughlan, because I agree with the Claimant that it is at least strongly arguable that the comments of the Social Security Commissioners in Secretary of State for Work and Pensions v Vale and others (CDLAl316112003 dated 27 July 2005) accurately reflect the decision in Coughlan. These comments (cited below) support the view that in applying the Primary Health Need Approach, and Coughlan, you ask whether the primary reason for the accommodation is a health need (which can include, or having regard to Coughlan, comprise a nursing need) rather than whether someone's primary need is for health care rather than accommodation, and further or alternatively you do not ask whether given the extent of health services (including RNCC) provided by the NHS the provision of accommodation (and the balance of any nursing care) is something that should be provided as a social service or by the NHS as a part of the person's health needs,
    ii) in paragraph 22 the further guidance mentioned (which included the RNCC workbook) is referred to as guidance on "the extension of NHS responsibility". In my view this is a natural and fair way to describe it because it is a description that reflects the pragmatic effect of s. 49 HSCA 2001 which is (a) to take any responsibility for the provision of RNCC nursing care which could have been lawfully provided by local authorities away from them and place it on the NHS (like other health care that is made available on the NHS e.g. a GP although a feature of such (and other) nursing care that distinguishes it as a matter of fact is that it is and was provided in the accommodation provided by the local authority), and (6) to provide that registered nursing care, as it is described in all the bands, will be arranged and funded by the NHS. This description and effect is in my view a pointer to a conclusion that in drawing the line between what is social· care and what is health care, and thus in deciding which public authority should provide accommodation, the balance of nursing care that would be provided by the local authority (rather than all the nursing care) is relevant,
    iii) they arguably support the view that a shared arrangement is permissible between health care and social services care on the basis that (a) the provision and funding of RNCC care (and any other health care provided by the NHS) constitutes the health care and is provided by the NHS, with (b) accommodation together with any balance of nursing and other care is provided by the local authority as a social service (and care that is incidental thereto ).
  104. The comments of the Social Security Commissioners in Secretary of State for Work and Pensions v Vale and others (CDLA/3161/2003 dated 27 July 2005 referred to above are at paragraphs 58 and 59 and are as follows:
  105. " ---- When a patient has been assessed as requiring accommodation because of the extent of his nursing needed, it is clear from Coughlan that the burden of reassessment - and the burden of deciding whether the claimants no longer need nursing services. - falls upon the health authority. This must particularly be so, where the patient suffers from a condition that over time is unlikely to improve to a significant extent. In the absence' of any such assessment, the health authority remains liable to arrange for those needs to be met and cannot lawfully pass responsibility for a patient to a local authority.
    This is of course for good reason, because, unlike health authorities, local authorities, formerly had limited power, and now have no power to purchase nursing services for people living in private care homes. Without a positive assessment that a person has no continuing requirement for substantial nursing services, a transfer of responsibility of that person from health authority to local authority may result in a requirement for nursing care not being met. .
    Therefore, we consider the concession by the health authority in these appeals that at all material times it remained responsible for the care of the claimant was well-made. Indeed, it was made plain at the hearing that understandably the local authority would not have considered it appropriate to accept responsibility for these claimants, having regard to the claimants' nursing needs and to section 21 (8) of the 1948 Act."
  106. In the context of the argument as to shared responsibility (as opposed to an all or nothing approach based on a primary health need) and generally, I acknowledge, and it needs to be remembered, that in these proceedings the S/S and the Care Trust have not asserted that as the RNCC is funded by the NHS the overall care of the Claimant could or should be shared between health care and social services care on the basis referred to in paragraph 75(iii) hereof (or any other basis). Indeed I acknowledge that there are a number of passages in the Guidance and the Workbook which indicate that this is not the intention and which support the view that an all or nothing approach should be applied.
  107. But, I note that in Coughlan at paragraphs 43 to 46 the Court of Appeal envisages the possibility of nursing (and in my view other care) being shared between the local authority and the NHS. In the Coughlan case difficulties in setting a coherent division were referred to (paragraph 44) and the answer of the Court of Appeal was that if a proper division was not drawn the NHS would have to take the whole responsibility.
  108. Now a division of funding has been put, or has effectively been, in place by the RNCC but this is not relied on by the S/S or the Care Trust because they asserted before me that all the bands relating to the RNCC are within the services which the local authority could have lawfully 'provided as being ancillary or incidental to social care and that when those services are considered as part of the overall needs of the Claimant her primary need is not a health need.
  109. As the reports of the Select Committee and the Ombudsman show in my view understandable confusion and dissatisfaction have resulted from decisions that a person in the high (and medium) RNCC band has not been assessed as qualifying for Continuing NHS Health Care when their overall needs are compared with those of Miss Coughlan. As I have explained the sequential argument advanced on behalf of the S/S (and the Care Trust) does not provide satisfactory answers to this confusion and dissatisfaction.
  110. I repeat that I acknowledge and accept that the Guidance is not the subject of the attack made by the Claimant albeit that counsel on her behalf endorsed the view of the Ombudsman that it is weak and asserted that it may well have been responsible for the flaws in the Criteria.
  111. However I have made the above points under this heading because I consider that (a) they identify reasonable and understandable reactions firstly of persons charged with the responsibility of setting Criteria for determining whether a person qualifies for Continuing NHS Health Care, and secondly of persons responsible for individual decisions applying such Criteria and the overall guidance, (b) the guidance given by the Guidance and the Workbook lacks clarity and this could lead to, or be a factor in, an incorrect approach being applied by such decision makers and (c) that lack of clarity has led to the criticism of the overall guidance issued by the S/S by the Select Committee and the Ombudsman, which I have cited from earlier and which, in my view, is justified.
  112. The Decision - the Criteria - challenges to them

  113. The decision was made by reference to the Criteria which sets out the Continuing Care Policy for the NHS in South East London. It is divided into sections. By its introduction, in section 1 it asserts that:
  114. i) a Continuing Care Policy sets out the circumstances under which people can expect to receive Continuing Care funded by the NHS and that the Criteria takes into account the law and the Guidance,
    ii) the policy (and thus the Criteria) is intended to guide clinical and social care staff in making decisions about Continuing Care for individuals and to inform patients, service users, their carers and advocates about their entitlement to NHS continuing care,
    iii) Continuing Care is a general term that describes the care that people need over an extended period of time, as a result of disability, accident or illness to address both physical and mental health needs. It may require services from the NHS and/or social care. It can be provided in a range of settings such as care homes, hospices, or, subject to clinical safety and resource issues, in the individual's own home.
  115. In section 2 it sets out principles which it asserts the Criteria reflects following the publication of the Guidance.
  116. In section 3 it says that it describes the three categories of Continuing Care in more detail. In doing so, it provides that:
  117. i) Eligibility criteria provide a broad framework within which entitlement is assessed. Although some clinical care characteristics have been specified, the assessment will address the overall level of health needs presented in an individual case as this will determine entitlement to Continuing NHS Health Care fully funded by the NHS, even in the absence of some of these characteristics (paragraph 3.1), and
    ii) patients requiring Continuing Care will fall into one of three categories described as:
    • Category 1: Continuing NHS Health Care fully funded by the NHS.
    • Category 2: Continuing health and social care giving rise to both social services and NHS responsibilities.
    • Category 3: Social Care provided by the Local Authority.
  118. Category 1 is described in the following terms:
  119. "Continuing NHS health care is a very specific term. It describes a package of health care arranged and funded solely by the NHS because of the nature or complexity or intensity or unpredictability of an individual's health needs as set out in this policy. The package of care funded by the NHS will include nursing and assessed personal care needs. These needs will be addressed by a range of health care professionals and will also require regular monitoring.
    Continuing NHS Health Care fully funded by the NHS may be made available in a variety of settings e.g. care homes with nursing or subject to clinical safety and resource issues, in the individual's own home". (my emphasis), the
  120. Category 2 is described in the following terms:
  121. "Continuing health and social care describes a package of care that involves services from both the NHS and local authorities. Local authorities are legally obliged to undertake financial assessments of people needing care in a care home and to charge individuals accordingly. Charges may also be made for some services provided in the home.
    For patients entering care homes with nursing, the Registered Nursing Care Contribution (RNCC) will be considered once it has been established that an individual is not entitled to Continuing NHS Health Care fully funded by the NHS. The RNCC is NHS funded nursing care. The NHS funds registered nursing care in accordance with the three RNCC bands (see below) and also continence products. This arrangement has been made available to patients, who fund their own care home with nursing placements from October 2001 and will be available for other care home with nursing patients from April 2003. "(my emphasis) .
    [The three bands are then set out as is a list of other matters for which the NHS is also responsible for arranging and funding and which could be provided either at home or in a care home] it is then stated that:
    The remainder of the placement costs would be funded by the local authority or self, depending upon the outcome of the financial assessment.
    [It is then stated that the local authority is also responsible for arranging and funding a list of other items]"
  122. Section 4 is entitled "Eligibility Criteria for Older People who are Physically Frail". It contains the following:
  123. "Eligibility for Continuing NHS Health Care fully funded by the NHS (category 1), should be considered for those patients whose care needs are likely to require continuing medical nursing or therapy or other healthcare input to their Continuing Care plan for provision because:
    The comprehensive assessment process for determining the care requirements on individual may involve the use of tools [ - which include tools that are then described -- ]
    Once the overall assessment (including the social work assessment) is complete consideration will be given to whether the person meets the criteria for Continuing NHS Health Care fully funded by the NHS, taking into consideration the overall scale of the individual's needs.
    Examples of types of situations where fully funded NHS Continuing Care may be appropriate are set out below. Situations like these will not necessarily entitle an individual to fully funded NHS Continuing Care. These are illustrative examples only. Decisions on eligibility will only be taken as a result of a multi disciplinary assessment that looks at the overall needs of an individual.
    In applying the criteria for Continuing NHS Health Care fully funded by the NHS the central consideration is the impact that these ongoing health care needs are having, or are expected to have, on the day-to-day provision of Continuing Care. For example, the care plan might require:
    For an older person with physical health problems, this may be because: [and reasons are set out]
    Continuing NHS Health Care fully funded by the NHS may be available in care homes with nursing, or, subject to clinical safety and resources issues, in the individual's own home.
    Eligibility for Continuing NHS Health Care fully funded by the NHS should be agreed by a consultant working as a member of the multidisciplinary team (i.e. consultant geriatrician, consultant old age psychiatrist, consultant nurse or consultant therapist).
    If an individual does not meet the criteria for fully funded care than a determination for RNCC will be undertaken for those entering care homes with nursing.
    Eligibility for Continuing Health and Social Care giving rise to both Social Services and NHS responsibilities (category 2).
    These criteria apply to physically frail people who have a lower level of need, than those who fit the criteria for Continuing NHS Health Care fully funded by the NHS. They are likely to have extensive needs, but nursing needs can be met within the parameters of the Registered Nursing Care Contribution (see section 3.2). They will, in addition to this, require personal and social care in varying amounts that would render care in a care home (i.e., formerly a residential home) inappropriate.
    There may be circumstances where category 2 patients choose to receive their care at home. If this was at variance with professional advice, agreement would have to be reached with the clients/carer(s) as to how the care needs will be met. A multidisciplinary meeting should decide on the care to be shared between family, district nurses, GPs, social care and voluntary sector providers. The RNCC will not apply to patients receiving their care at home.
    Within this group of patients, many will have some complex and/or extensive needs."
  124. Appendix 2 sets out some definitions of terms.
  125. As appears from these passages the Criteria reflects the sequential analysis advanced by the S/S and the Care Trust but it contains no express reference to:
  126. i) the Primary Health Need Approach,
    ii) the test set out in Coughlan as to what a local authority call lawfully provide, or could have lawfully provided prior to the enactment of s. 49 HSCA 2001,
    iii) to the test or approach to be applied by the decision maker by reference to the Guidance, or the Coughlan case (and what it decides and records) or otherwise.
  127. In my judgment the Criteria gives effectively no guidance as to the test to be applied in determining whether the qualitative and quantitative factors referred to in it found a conclusion that the person falls within category 1 or category 2. The decision maker is effectively left adrift on a sea of factors without guidance as to the test or tests he should apply to assess ·and weigh (in the words of the Criteria) the nature or complexity or intensity or un predictability and the impact of an individual's health needs in determining the category into which the relevant person falls.
  128. Further, and notwithstanding the express recognition of the sequential approach in my judgment a reader of the Criteria can be forgiven for concluding that the guidance being given by it is:
  129. i) that if the nature and degree of the nursing needs of a person fall within any of the RNCC bands that person will fall within category ~ unless he has other health needs that bring him within category I, and therefore at the first stage such nursing. needs of themselves will not qualify a person for category 1 (Continuing NHS Health Care), and
    ii) that category 2 is a shared care arrangement in which the local authority will provide accommodation as a social service on the basis that (a) the provision and funding of RNCC care (and any other health care provided by the NHS) constitutes the health care and is provided by the NHS, with (b) accommodation together with the balance of nursing and other care is provided by the local authority as a social service (and care that is incidental thereto).

    This flows, for example, from the point made that such persons "are likely to have extensive needs, but nursing needs can be met within the parameters of the RNCC' without any qualification or explanation as to how those nursing needs could have been lawfully provided by the local authority prior to the enactment of s. 49 HSCA 2001, or as to why their "complex and/or extensive needs" do not qualify them for Continuing NHS Health Care. Also this is in line with points made under the previous heading (a) as to the guidance or steer given by the Guidance and the Workbook, read in the light of the sequential argument, and (b) as to how paragraphs 21 an0 22 of the Guidance could be read.

  130. The reference in respect of category 1 to review "within one month" in the first bullet point in section 4 is to an arbitrary time limit that is not found in the Guidance or Coughlan. As such, an introduction of a time limit to gauge and assess qualitative and quantitative factors could well be permissible and helpful, but I accept the submission of the Claimant that here it introduces (a) a guide that does not fully or properly reflect the approach in Coughlan, or the Primary Health Need Approach (which the Care Trust argue is the lawful approach that the Criteria reflects), and thus (b) an inappropriate guide or approach because it is too restrictive and in particular it leads to an inappropriate consideration of a person who is chronically ill (who mayor may not qualify for Continuing NHS Health Care). By itself I doubt that this inclusion of a time limit would have rendered the Criteria, and a decision based on it, flawed if elsewhere the Criteria had set out clearly enough the tests and approach to be applied. This is because, as the Criteria says, Continuing NHS Health Care should be considered for such persons and the criticism is that the consideration should not be so restricted. Much of course would depend on how the tests and approach to be applied were set out. But in the Criteria as drafted I have concluded that this reference to an arbitrary time limit is another factor pointing to the conclusions referred to in paragraph 92 hereof and to an interpretation and understanding of the guidance given by the Criteria that does not accord with the Primary Health Need which the Care Trust asserts should be applied.
  131. In my view by failing to give any effective guidance as to the test to be applied in making the required value judgment the Criteria is fatally flawed and it cannot be said from it what test the decision maker is to apply and thus whether, as the Care Trust assert, it indicates that (a) the decision makers are to apply the Primary Health Need Approach as described and advanced by the S/S and the Care Trust in argument, or (b) that this is the approach the decision makers did apply because they have had regard to and applied the guidance given by the Criteria.
  132. The situation is not saved by reference to other material indicating the approach taken by the decision makers. The decision letter of 22 January 2004 recited and plainly relied on the Criteria, it adds nothing to it and asserts that "the Panel ------- would not characterise [the Claimant's) continuing health care needs as complex or intense" without saying why. The letter of 18 February 2005 concerning a further assessment refers to the clinicians assessing the Claimant against the Criteria and taking into account the principles set out in the Coughlan judgment, but does not describe those principles or assert that they add to, or modify, the Criteria or how the clinicians are to, or have, taken them into account. The letter from the consultant physician dated 7 March 2005 simply sets out the Claimant's condition and says "] feel therefore that currently [the Claimant) does not meet the requirements for continuing care ". This must mean Continuing NHS Health Care and not continuing care as defined in the Criteria. I accept that this is a linguistic point but in my view it is one which supports the view that the physician has not paid close attention to the Criteria. In any event his letter does not refer to the test he has applied. Rather to my mind it is an indication that he has applied his own view based no doubt on his experience and expertise without identifying, and perhaps without any close consideration of, the test to be applied.
  133. Further in my judgment the situation is not saved by the general points made on behalf of the Care Trust as to the nature of the legal test, or the points made on its behalf in response to the Claimant's principal submissions and her criticisms of the Criteria.
  134. The valid points made (a) as to the difficulties in drawing the line between services which can and cannot be lawfully provided by a local authority, in assessing the divide between health services and social services and in deciding when there is a primary health need, (b) that the tests need to be applied to a wide range of factual circumstances, (c) that the tests involve issues of degree and that a borderline case will depend on a careful appraisal of the facts, (d) that what can be properly regarded as the responsibility of a local authority can change over time, (e) that the possibility of there being regional differences, and (f) as to the need for professional judgment, do not in my view answer the essential criticism of, and flaw in, the Criteria, namely that it does not properly identify the test or approach to be applied in reaching the judgments required.
  135. Further, and for the same reason the valid points made on behalf of the Care Trust that the Criteria (a) identifies qualitative and quantitative factors reflecting factors identified by the Court of Appeal in Coughlan, (b) identifies standard assessment tools, and (c) gives examples of types of situations where Continuing NHS Health Care may be appropriate, do not answer the essential criticism of, and flaw in, the Criteria.
  136. Additionally, and although some of those who apply the Criteria will be familiar with the Coughlan case, in my view it cannot be said that it should be assumed that the decision makers who apply it will apply the Primary Health Need Approach, as described in argument by the S/S and the Care Trust because:
  137. i) this is not implicit in, and does not flow from a fair reading of, the Criteria,
    ii) a fair reading of the Criteria could well found the approach in the minds of the relevant decision makers set out in paragraph 92 above, and
    iii) the Criteria can fairly lead to the decision maker simply taking his or her own approach based on experience and views as to when a person should qualify for Continuing NHS Health Care.
  138. Thus in my view returning to the overall question referred to in paragraph 3 hereof it cannot be said that the Care Trust took a lawful approach in, and in applying, the Criteria, and thus the approach which it (and the S/S) maintains is lawful namely the Primary Health Need Approach (as described in argument by the S/S and the Care Trust).
  139. To my mind it does not matter whether this is classified as a failure to set proper
  140. guidelines, or a failure to apply the correct approach at law, or a failure to give adequate reasons.

    Other challenges and remedy

  141. To support a remedy that the court should order the Care Trust to provide Continuing NHS Health Care an argument was advanced on behalf of the Claimant that on a proper application of the test which she, the Care Trust and the S/S advanced as the correct one (i.e. the Primary Health Need Approach) no decision maker could rationally conclude that the Claimant did not qualify for Continuing NHS Health Care. This argument, if correct, would found a successful review and, at least arguably, that remedy even if the Criteria had given lawful guidance and the decision maker had applied the correct approach in law. It is a challenge based on the second part of Wednesbury (i.e. the irrationality of a decision maker who has properly directed himself on the relevant legal approach and factors to be taken into account).
  142. This argument was advanced by a number of general submissions by reference to chronically ill persons, the RNCC banding of the Claimant (she is presently assessed as medium band and on one earlier assessment as high band) and comparisons with Miss Coughlan, but not by a detailed analysis of the needs of the Claimant as shown in the assessment made of her or otherwise (save to a limited extent in reply). It was asserted that the essential point is that a patient with extensive nursing needs (including nursing by a registered nurse) whose condition is such that the nursing care required is continuous and of a daily nature (with access being required at any time) is clearly, on a Coughlan analysis, on the health side of the line.
  143. I do not accept that argument and thus that it is plain that on a proper application of the Primary Health Need Approach asserted on behalf of the Claimant that she qualifies for Continuing NHS Health Care because:
  144. i) in my view a proper approach to stage I of the sequential approach and the determination of whether the Claimant qualifies on an application of the Primary Health Need Approach requires an assessment of all her relevant needs which should not be determined by reference to either (a) generalisations or classes, or (b) the product of the existing assessments and the qualitative and quantitative description therein of her needs (including nursing needs) because although they are descriptions of fact I have concluded they have been made on an approach that cannot be identified and thus in my view cannot be said to have been carried out by reference to the approach which the Claimant asserts is the correct one in law, and
    ii) in my view, the limited argument before me by reference to the detail of the information contained and described in the present assessments of the Claimant does not lead inevitably to the conclusion that on a lawful consideration, overview and assessment of all her needs (even if they establish a need for high band RNCC nursing) the Claimant qualifies for Continuing NHS Health Care.
  145. As to point (ii) in the preceding paragraph:
  146. i) in my view a detailed analysis of the actual nursing care needs to be carried out to see whether it could have been lawfully provided by the local authority before the enactment of s. 49 HSCA 2001 applying the test set out in Coughlan,
    ii) the Claimant's argument relies on the test set out in Coughlan for determining what the local authority can lawfully provide as a test setting the starting point for continuing NHS Health Care and thus the range of persons who satisfy the Primary Health Need Approach. Thus it does not recognise the possibility of there being a gap,
    iii) although not advanced in this case (save in the sense that the S/S pointed out that there can be a gap between what a local authority could have lawfully provided and what the NHS is obliged to provide) I consider that it is arguable that on a correct application of Coughlan a person does not have a primary need for health care on the Primary Health Need Approach so as to qualify him for Continuing NHS Health Care simply because he needs nursing, or other health care, that falls outside what a local authority could have lawfully provided prior to the enactment of s. 49 HSCA 2001. Indeed as appears earlier I accept the point made on behalf of the S/S that the duties, and thus the guidance and test set by the NHS for the provision of health care, are not governed by the limits of the "last resort" provision of services by local authorities, and
    iv) further, in my view this argument in (iii) above is strengthened if it can be said that, like other NHS services provided to a person accommodated by a local authority (e.g. access to a GP), the nursing services the person needs over and above those that could, on the Coughlan test, have been lawfully provided by a local authority are now being provided as a matter of fact by the NHS through the RNCC. I appreciate that this would be a departure from an all or nothing approach such as that advanced in this case and a move to a shared arrangement. But as I have pointed out a shared arrangement is identified as a possibility in Coughlan. Further it must occur in a number of other situations between the NHS and individuals, and indeed in respect of a number of the aspects of the health care of a person accommodated by a local authority who does not need any nursing care by a registered nurse.

    Conclusion

  147. So in my view the decision that the Claimant does not qualify for Continuing NHS Health Care should be set aside and this question should be remitted to the Care Trust for fresh and further consideration.
  148. In that consideration in my view, the Care Trust should;
  149. i) identify the test it applies,
    ii) in doing so address the point flowing from s. 49 HSCA 2001, and the sequential argument advanced by the S/S and adopted by the Care Trust, that the Coughlan test on what the local authority could lawfully have done addresses the issue prior to the prohibition introduced by s. 49 HSCA 2001, with the consequence that at the first stage of the sequential approach it is relevant to consider whether all the nursing needs in the accommodation (including the RNCC) could have been lawfully provided by the local authority prior to the enactment of s. 49 HSCA 2001,
    iii) in so doing address the point as to how a conclusion that the relevant person has needs for registered nursing care as described in the RNCC bands (or other nursing needs) that could not have been lawfully provided by a local authority prior to the enactment of s.49 HSCA 2001 is to be taken into account in the assessment of the question whether that person qualifies for Continuing NHS Health Care.

    Point (iii) engages points made herein relating to the potential for a gap between what a local authority could have lawfully provided and what the NHS provides and sets as the qualification for Continuing NHS Health Care, and sharing. It also, I accept engages points as to the effect of existing policy and guidance on the approach to be taken.


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