Funding continuing care

Money iStock 000008683901XSmall 146x219A judge has confirmed that a clinical commissioning group  has no legal power to fund a continuing care patient for whom it had no statutory responsibility. David Lock QC explains why.

In a judgment that will have significant implications for many NHS commissioners, Mr Justice Garnham has decided that a CCG had no power to fund NHS Continuing Healthcare (“CHC”) services for a patient because he had ceased to be registered with a CCG GP a few days before the completion of the CHC decision making process. That meant that the CCG could not fund services for the patient despite having assessed him as eligible for CHC and had repeatedly promised a local authority that it would fund services for him.

This unfortunate but salutary series of events started when a learning disabled patient was placed in a facility in the area of CCG A by a Midlands local authority. In 2013 the council asked the CCG to undertake a CHC assessment. By this time, the patient was registered with a local GP and so this CCG had NHS commissioning responsibility.

The assessment process started but, before it was completed, the council moved the patient to a new placement in the area of CCG B. The patient changed his GP registration soon after the move. That change of GP occurred before CCG A took any decision whether the patient was eligible for CHC.

Not appreciating the legal effect of the change of GP, CCG A decided the patient was eligible for CHC and promised to fund the new placement. After three years of delays, the CCG then realised that the NHS Act and the 2012 Regulations meant that it had no NHS commissioning responsibility for the patient at the date that the CHC eligibility decision was made. It apologised to the council but explained that, despite following its processes, it had no legal vires to fund services for the patient. Both CCG A and CCG B were taken to court by the council but Garnham J ruled that CCG A were correct. That left the commissioning issues to be resolved between the council and CCG B.

An interesting aspect of this was that CCG B tried to persuade the Court that NHS England should have arbitrated. NHS England officials had already given a strong steer that CCG A should accept commissioning responsibility and put it under pressure to meet the costs of the placement. On the Judge’s interpretation of events, that would have meant CCG A were being strong armed by NHS England to act unlawfully.

The case sends out three clear messages:

  • CCGs can only use their funds for patients for whom they have NHS commissioning responsibility under the National Health Service Act 2006 and Regulations made under that Act. Funding any other patients is ultra vires and unlawful.
  • Once a CCG loses responsibility for a patient due to a change of GP registration, the placing rules do not revive a CCG’s responsibility for the patient, even if the move took place during the CHC assessment and decision making process.
  • A CCG cannot acquire vires to fund a patient because it mistakenly promised to do so because promises by public bodies cannot expand a public body’s legal powers.

The responsible commissioner rules under the NHS Act are hugely complex and are supported by the out of date “Who Pays” guidance. There is a full explanation of the current state of the law here.

The text of the judgment will be published once it is available. However, in the meantime, CCGs need to be mindful of the need to establish clearly that they have NHS commissioning responsibility under the National Health Service Act 2006 and Regulations before using CCG funds to pay for services for such a person.

David Lock QC is a barrister at Landmark Chambers. He appeared for CCG A, instructed by Dawn Brathwaite of Mills & Reeve. 

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