Memorandum by The Law Society (CC 35)
The Law Society is the professional body for
solicitors in England and Wales. The Society regulates and represents
the solicitors' profession, and has a public interest role in
working for reform of the law.
We welcome the announcement of the inquiry into
the long standing problems in relation to NHS funded continuing
care and the opportunity for submitting this paper to the Select
The Law Society is concerned that the recent
announcement by Stephen Ladyman that a National Framework ("the
Framework") is to be developed, fails to address the fundamental
problems in the NHS continuing care system.
Specifically the Framework will not address
the core problems in relation to NHS continuing care if its content
is incorrect and not inline with the Coughlan judgment.
Also, if the Registered Nurse Care Contribution (RNCC) assessment
tool is retained, the Framework will do nothing to correct the
perception that only people whose needs exceed the high band are
eligible for NHS health care.
According to the Coughlan judgment, the
boundary between health and social care is not one of policy,
but of law. Legally, there has been no material change in the
scope of the NHS continuing health care responsibilities since
inception and no amendment to the primary statutory obligation
(albeit that the duty is now to be found in the consolidated 1977
NHS Act). However over the past decades, changes in the provision
of long term chronic health care services following the development
of community care has created confusion in relation to funding
responsibilities and blurred the practical boundary between health
and social care.
The Law Society is concerned that health care
has been redefined as social care without any primary legislation
or debate, with the effect being that the state may seek payment
for chronic and long term health services.
We also believe that successive Governments
have actively contributed to this confusion by issuing incorrect
circular guidance and failing to ensure that Health Authorities'
eligibility criteria and assessment methods comply with the judgment
of the Court of Appeal in the Coughlan case. This has resulted
in many vulnerable people and their families being forced to pay
for health care which should be the responsibility of the NHS
and free at the point of delivery.
The judgment in Coughlan clearly establishes
that where a person's primary need is for health care, and that
is why they are placed in nursing home accommodation, the NHS
is responsible for the full cost of the package. Contrary to Government
guidance, social services authorities may only purchase nursing
care in strictly limited situations, in accordance with the judgment.
Whilst much of the debate has concentrated on nursing home placements,
it must be recognised that eligibility for NHS funded care is
not relevant to the location in which that care is provided. Those
people cared for in their own homes whose primary need is for
health care may also be eligible for NHS funded care.
The Law Society further believes that the creation
and development of the RNCC tool has proved to be the most significant
reason why health bodies have failed to properly appreciate their
full NHS continuing care responsibilities. It has replaced consideration
of whether a person's primary need is for health care with an
assumption that the only nursing for which a person cannot be
forced to pay is registered nursing. We believe that this has
distorted the true legal responsibilities of the NHS as set out
by the Court of Appeal and led to widespread inequalities and
The Law Society believes that the eligibility
criteria currently being operated are incompatible with the Coughlan
judgment. We are concerned that the criteria would result in people
being eligible for NHS funded care only if they fall within the
"palliative care" category and are aware of cases where
people are being forced to pay for services which are clearly
health services, such as kidney dialysis, artificial feeding,
catheter care, wound care and bladder washouts. This is based
on the mistaken belief that chronic health care for patients in
a stable condition is no longer the responsibility of the NHS.
The Law Society believes that a national framework
will only be of assistance if the following conditions are met:
The RNCC system is abolished.
The Framework is one set of national
eligibility criterion with a standard assessment method to be
applied by all Strategic Health Authorities, PCTs and NHS Trusts
in conjunction with local authority social services departments
so that individuals whose primary need is a health need will receive
fully funded care no matter where or in what setting they live.
The Framework should not make any
distinction between general or specialist nursing care, as both
are nursing care arising from healthcare as opposed to social
The Framework should clearly state
that funding decisions should not place undue reliance upon the
predictability of a condition but should be based on whether the
primary need of the patient is healthcare, as well as the "ancillary/incidental"
test set out in Coughlan.
The Framework must properly address
the health needs of people with mental health conditions.
The Government should take proactive
steps to ensure compliance.
Until the programme of closure of long stay
hospital wards and the development of care in the community, the
division between health and social care responsibilities was relatively
clear. Patients in a long stay hospital ward were the funding
responsibility of the NHS. Primary care services in the community,
such as nursing care, were not chargeable as they too were the
responsibility of the NHS. Services provided by social services
were means tested.
The advent of community care in the 1970-90s
crucially changed the location of the care provision for the chronically
ill. NHS facilities were removed for patients with continuing
care needs, so that increasingly the chronically ill were cared
in non hospital settings.
The implementation of the NHS and Community
Care Act 1990 (NHSCCA) in April 1993 gave local authority social
services departments the responsibility for being the "gatekeepers"
of access to services (including nursing home care). Access to
a residential care home or a nursing home in the community was
via an assessment of need under s.47 NHSCCA, where the lead assessing
body was the local authority.
This led to a widely held misconception that
as social services departments had become responsible for assessing
need and arranging placements in nursing homes, the funding responsibilities
for nursing home placements had correspondingly moved from the
NHS to local authorities. This was, and remains, incorrect and
is a major barrier to a proper understanding of the respective
funding responsibilities of the NHS and local authority social
services departments by practitioners in health and social care.
The first major challenge to this originated
as a Health Service Commissioner's complaint concerning a patient
who had been discharged from a neuro-surgical ward and whose wife
had been forced to pay for his continuing care in a private nursing
The Health Service Commissioner considered that even though the
patient's "condition had reached the stage where active treatment
was no longer required . . . he was still in need of substantial
nursing care, which could not be provided at home and which would
continue to be needed for the rest of his life" and concluded
that the exclusion by the health authority of responsibility in
such cases was maladministration.
The Commissioner also took the exceptional step
of having the report separately publishedand
in response, the government undertook to issue guidance, indicating:
If in the light of the guidance, some health
authorities are found to have reduced their capacity to secure
continuing care too faras clearly happened in the case
dealt with by the Health Service Commissionerthen they
will have to take action to close the gap.
THE 1995 GUIDANCENHS
MEETING NHS CONTINUING
In 1994 the Department of Health consulted on
the proposed guidance but this draft was the subject of intense
The final 1995 guidanceattempted
to distinguish between "general" and "specialist"
nursing and health care, a distinction which is of crucial importance
in understanding the way in which it has been interpreted.
However, the 2002-03 Health Service Commissioner's
the 1995 guidance was misapplied by many health authorities. The
Report also indicates that the Department of Health took little
positive action to require health authorities to redraft their
continuing care eligibility criteria.
concerned a woman who had been left severely disabled following
a road traffic accident several years previously. She required
general nursing care and was living in a purpose built long stay
hospital (in an individual flat). The dispute when the Health
Authority decided to close the hospital, stating that as a result
of a "change in the law" arising from the 1995 guidance
the NHS was no longer responsible for chronic nursing care and
was only responsible for specialist or acute healthcare for people
with unpredictable needs.
The Court of Appeal judgment confirmed that:
(a) Where a person's primary need was for
health care (in a nursing home setting, which was the context
in that case) the NHS was responsible for the full cost of the
(b) The distinction between "specialist"
and "general" nursing or health care in the 1995 guidance
was "elusive" and "idiosyncratic". However,
as mere guidance could not alter the statutory responsibilities
of the NHS there was no need to quash the guidance as being unlawful,
although it was "unhelpful".
(c) It had been incorrect to define a person's
eligibility for NHS funded care on the basis of the discipline
of the nurse undertaking the task or the experience of the health
care worker. The real issue was the condition of the person concerned.
(d) The starting point is the NHS Act 1977
and only if the NHS is not responsible (ie the person's need is
not primarily for health care), may consideration be given to
whether social services may be responsible for purchasing any
nursing services under the National Assistance Act 1948.
(e) Social services could only purchase nursing
care in very limited circumstances (and pass the cost to the service
user) for patients whose health care needs 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 refers;
(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.
(f) Whether nursing was "merely incidental
or ancillary" to the provision of the accommodation was a
question of level and type of nursing care requiredthe
"quality and quantity" test.
(g) The Court considered that Ms Coughlan's
condition and that of the other two long stay residents fell wholly
within the responsibility of the NHS (ie that despite the chronic
and stable nature of their condition, social services were not
permitted in law to purchase their care.)
THE 1999 GUIDANCE
Following the Coughlan judgment, the
Department of Health issued follow up guidance in HSC 1999/180;
LAC (1999)30. This guidance stated that it was "interim guidance"
and asked health and local authorities to "satisfy themselves
that their continuing" care policies were in line with the
It also gave a clear indication that further
guidance would be issued "later this year" (at para
2) and many health authorities postponed any significant review
of their plans until the promised guidance had been published.
In the meantime, patients with similar and greater needs than
Ms Coughlan continued to be charged for their health care services.
The Government's response to the 1999 Royal
Commission report on long term care
was long awaited but did not accord with the judgment of the Court
of Appeal. Instead of the anticipated reversal of the previous
position which had led to the Coughlan case and the development
of standard national eligibility criteria to ensure equality of
access to health services, the Government accepted the minority
view of the Commission, which recommended that only certain nursing
care should be funded by the National Health Service and that
"general" nursing and personal care would be chargeable.
S49 HEALTH AND
ACT 2001, THE
2001 GUIDANCE AND
In July 2000, the Government produced its new
National Health Service Plan and confirmed that "nursing
care in nursing homes will be fully funded by the NHS". Work
started on the new Health and Social Care Bill to enable pooling
of budgets, partnership working and changes to funding for nursing
care in nursing homes.
S49 Health and Social Care Act 2001 defines
the nursing care which cannot be purchased by local authority
social services departments.
The effect of s49 was to prohibit the purchase of high level "registered
nursing care" by social services authorities but it went
no further. The Law Society believes that the implementation of
s49 together with the introduction of the Registered Nursing Care
Contribution (RNCC) assessment tool regarding "free nursing
care" are not compatible with the Coughlan judgment.
(1) Nothing in the enactments relating
to the provision of community care services shall authorise or
require a local authority, in or in connection with
the provision of any services, to
(a) provide for
any person, or
(b) arrange for
any person to be provided with, nursing care by a registered nurse.
(2) In this section "nursing care
by a registered nurse" means any services provided by a registered
nurse and involving
(a) the provision
of care, or
(b) 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.
On 1 October 2001 the Government announced "Free
Nursing Care for All" stating:
"From today people currently living in nursing
homes and paying for their own registered nursing care will received
free NHS funded nursing care . . . The nursing care provided will
be divided into three bands£35, £70 and £110
per week. Based on current information it is anticipated that
only 10% of people will fall into the £35 band and the remainder
will be divided equally between the two higher bands. If following
the assessment people have needs above the highest band, they
will receive the care they need." 
As noted above, the Government felt unable to
accept the full recommendations of the 1999 Royal Commission on
long term care report and opted instead to fund only the registered
nursing care costs of residents in nursing homes. In
England, Primary Care Trusts were charged with responsibility
for deciding the extent of this obligation, and the Department
of Health issued guidance
to explain how this should be achieved. The guidance set out three
bands of nursing care, while in contrast the Welsh Assembly opted
for a much simpler approach stating that that every resident would
receive the same contribution from the health authority, originally
£100 per week.
The guidance set out the Registered Nursing
Care Contribution (RNCC) assessment tool and three bands for free
(high, medium and low). The Law Society is concerned that the
creation of the RNCC and the eligibility criteria were not subject
to Parliamentary scrutiny.
We believe that the high level of support (ie
the "high" band) has been set well above the level defined
by the Court of Appeal and this has caused considerable confusion
amongst health authorities and trusts. Para 3.8 of the guidance
describes the "high band" as follows:
3.8 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.
We are concerned that this "high band"
only triggers a PCT contribution liability of £110 per week
(when introduced). This will have a knock on effect for people
who are placed in either the medium or low bands who despite having
relatively high level health needs will not be provided with sufficient
contributions to fund their health care.
It should be noted that neither the patient
who was the subject of the Leeds NHS Ombudsman complaint nor Ms
Coughlan meet these criteria. Indeed the Nurses Work Book which
nurses use in determining the band a person should be placed,
gives an example of a person who should be entitled to the high
band, which bears great similarity to the condition of a nursing
home resident considered in the Health Service Commissioner's
report of February 2003 who, as a result of several strokes, had
no speech or comprehension; was unable to swallow and required
feeding by PEG tube.
The authority had rejected her claim for continuing care funding
and the Ombudsman found.
"It is clear from the information I have
seen about Mrs N's condition that she was extremely dependent
and required a high level of physical care: like Miss Coughlan,
she was almost completely immobile; and she was doubly incontinent.
I have seen no evidence that she had breathing difficulties as
Miss Coughlan had; but she required PEG feeding, which Miss Coughlan
did not. She was unable to communicate verbally. I cannot see
that any authority could reasonably conclude that her need for
nursing care was merely incidental or ancillary to the provision
of accommodation or of a nature one could expect Social Services
to provide (paragraph 15). It seems clear to me that she, like
Miss Coughlan, needed services of a wholly different kind. If
the Health Authority had had a reasonable policy, and applied
it appropriately, they would have provided NHS care for Mrs N.
They failed to provide a service which it was their function to
provide. I uphold the complaint."
The Law Society believes that patients in the
high band of registered nursing care cannot lawfully have their
care purchased by the local authority. The primary need of such
patients is for health care, and according to the Coughlan judgment,
the NHS is legally responsible for funding such a care package.
In addition, it is likely that most (if not
all) patients assessed as falling within the "medium band"
will also be entitled to continuing care. Para 3.9 describes the
medium band in the following terms:
3.9 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 psychosocial needs) is stable and predictable, and likely
to remain so if treatment and care regimes continue.
It is again of some concern that both Ms Coughlan
and the patient who was the subject of the Leeds NHS Ombudsman
complaint would have difficulty qualifying for this band.
The Law Society was disappointed that the 2001
continuing care guidance was issued without proper consultation
in line with Cabinet Office guidelines. We also disagree with
its conclusion that the Coughlan judgment merely confirmed
the status quo and that little action was required following the
judgment. The guidance has been roundly criticised by the Health
Service Commissioner, who argued (at Para 38) that its defects
have caused "injustice and hardship" to those (almost
certainly numbering several thousand) who have been compelled
to pay for nursing care; nursing care that should have been provided
free by the NHS.
We also believe that the creation and development
of the RNCC tool has proved to be the most significant reason
why health bodies have failed to properly appreciate their full
NHS continuing care responsibilities. It has replaced consideration
of whether a person's primary need is for health care with an
assumption that the only nursing for which a person cannot be
forced to pay is registered nursing. The Law Society believes
that this misrepresents the legal responsibilities of the NHS
as provided by the Court of Appeal.
In February 2003, the Health Service Commissioner
published a Special Report "NHS Funding for the Long Term
Care of Elderly and Disabled PeopleHC399" as a result
of serious concerns that Strategic Health Authorities were continuing
to devise and apply eligibility criteria which were too restrictive.
Importantly, the Report recommended that the
Department of Health should take concerted action to minimise
variations in eligibility criteria and produce national guidance:
"The Department of Health should review
the national guidance on eligibility for continuing NHS health
care, making it much clearer in new guidance the situations when
the NHS must provide funding and those where it is left to the
discretion of NHS bodies locally. This guidance may need to include
detailed definitions of terms used and case examples of patterns
of need likely to mean NHS funding should be provided."
The Ombudsman's recommendation states that the
"support and monitor the performance of
authorities and primary care trusts in this work . . . (including)
. . . assessing whether, from 1996 to date, criteria being used
were in line with the law and guidance. Where they were not, the
Department . . . need to co-ordinate effort to remedy any financial
injustice to patients affected."
Further the Ombudsman recommended that the Department
"be more proactive in checking that criteria used in the
future follow the guidance."
Following publication of this Report, the Department
of Health asked Strategic Health Authorities (SHAs) to identify
those people who may have been wrongly denied funding and to conduct
reassessments, which were to have been completed by the end of
December 2003. Most complaints received by the Commissioner were
referred back to the SHAs for reassessment according to this process.
According to the Commissioner's annual report
for 2003-04, the volume of applications for reassessment was far
greater than anticipated and the Department of Health extended
the deadline for dealing with them to March 2004. However, by
that time only 57% of the retrospective reviews had been undertaken
(6,713 out of 11,724), which the Commissioner described as "disappointing"
given the large numbers of people affected. The Commissioner also
criticised the lack of support given by the Department of Health
to SHAs and Primary Care Trusts (PCTs) in undertaking the reviews.
The Department estimated that £180 million would be the cost
of recompense to 31 March 2004 and the Health Minister Stephen
Ladyman confirmed in the House of Commons that 770 cases had resulted
in compensation being payable.
On 27 February 2004, the Continuing Care (National
Health Service Responsibilities) Directions 2004 came into force,
applying to all SHAs and PCTs in England. They include a definition
of continuing care as:
"care provided over an extended period of
time to a person aged 18 or over to meet physical or mental health
needs which have arisen as a result of disability, illness or
The Directions provide that by 30 April 2004
each SHA must have developed a single set of eligibility criteria
to be applied by all PCTs within the area. Before establishing
or revising the criteria the SHA must take such steps as are reasonable
to obtain the agreement of the PCTs and all local authorities
in the relevant area.
These Directions, along with the Delayed Discharge
Directions, place a qualified obligation on the PCT to undertake
an assessment of the person's eligibility for NHS funded continuing
care "where it appears there may be a need for such services"
prior to the issue of an assessment notice regarding delayed discharge.
Further publicity was generated by the Ombudsman's
report into the Pointon
case, which concerned the refusal of a PCT to provide continuing
care funding in a patient's own home as opposed to a nursing home
or hospital. This case involved a man with Alzheimer's Disease
who required continuing care and considered the application of
the criteria by way of an assessment tool which focused on physical
care rather than the person's psychological condition. A recommendation
was made that
"SHAs should review their eligibility criteria
to ensure that the criteria for funding at home, and the recognition
of patients' psychological as well as physical needs, are clearly
The Law Society is concerned by the different
approach to NHS funded continuing care regarding mental, as opposed
to physical health care, and that little action appears to have
been taken to implement the recommendation made in Pointon.
We believe that people suffering from mental distress, particularly
with dementia which may be controlled within a nursing home environment
or in their own home, are discriminated against as far as eligibility
for continuing care is concerned. It is more difficult for such
persons to establish that their primary need is for health, as
opposed to social care, than residents whose treatments involve
physical health care interventions.
The most recent report of the Health Service
published shortly after the announcement from Stephen Ladyman
in December 2004 and again describes a continuing picture of chaos,
complex procedures, delays, and injustice among those seeking
to establish their eligibility for continuing care.
FOR NHS FUNDED
The Law Society is concerned that the recent
announcement by Stephen Ladyman in December 2004 that a national
framework is to be developed, does not address the fundamental
The fundamental problem is that the Government
has not implemented the judgment in the Coughlan case.
We are particularly concerned that the conditions described in
the RNCC bands bear no resemblance to the thresholds for entitlement
to NHS funded continuing care as laid down by the Court of Appeal.
Unless the legal position is properly understood and consistently
applied, the problems will continue and any framework which is
based on anything less than the Coughlan judgment, will
create further inequality.
The Law Society believes that if the RNCC system
of "free nursing care" is retained, a national framework
will do nothing to correct the perception created by the RNCC
system that only those people whose needs exceed the high band
are eligible for NHS fully funded care. We believe that people
in the high and medium band are legally eligible for NHS funded
continuing care. It must be remembered that admissions to nursing
homes are governed by strict criteria applied by local authority
social services departments following an assessment of need. Only
those patients who cannot be cared for elsewhere are admitted
to nursing homes (unless the social services department is not
involved, which is unusual).
The establishment of a framework will not resolve
the issue of inconsistencies between SHAs while different eligibility
criteria for different SHA areas are permitted. The NHS is a national
service and therefore a person with a particular condition should
be able to approach any SHA in the country and have the same right
to health services. Allowing different areas to develop their
own criteria leads to inequality on a postcode basis and allowing
different PCTs and NHS Trusts to develop their own "assessment
tools" will continue the differential treatment of people
in different areas of the country.
11 Harding, Meredith and Wistow "note that between
1983 and 1993 there was a 30% (17,000) reduction in the number
of long term geriatric and psychogeriatric NHS beds and the House
of Commons Health Committee (2002) noted that between 1988 and
2001 there had been a loss of 50,600 such beds". Back
Health Service Commissioner Second Report for Session 1993-94;
Case No E62/93-94 (HMSO). Back
Sir William Reid (the then Commissioner) asserted "this patient
was a highly dependent patient in hospital . . . and yet, when
he no longer needed care in an acute ward but manifestly still
needed what the National Health Service is there to provide, [the
NHS bodies] regarded themselves as having no scope for continuing
to discharge their responsibilities to him". Back
Normally only an abbreviated selection of his reports is published
twice yearly. Back
Virginia Bottomley, Secretary of State for Health, 4.11.94. Back
See for instance L. Clements (1994) "Shifting sands: the
draft NHS continuing care guidance" in Community Care
Journal 29.9.94 p 24-25. Back
LAC (95)5/HSG (95)8 "NHS Responsibilities for Meeting Continuing
Health Care Needs". Back
Second Report for Session 2002-03 NHS funding for long term
care; Stationery Office. HC 399. Back
(as she observes at para 21) "My enquiries so far have revealed
one letter (in case E.814/00-01) sent out from a regional office
of the Department of Health to health authorities following the
1999 guidance, which could justifiably have been read as a mandate
to do the bare minimum". Back
R v North and East Devon Health Authority ex p Coughlan 
2 WLR 622:  3 All ER 850. Back
A report by the Royal College of Nursing in 1999 ("Rationing
by Stealth") asserted that the continuing care policies of
over 90% of health authorities were as deficient as those of the
health authority in the Coughlan case. Back
With respect to old age: The Royal Commission on Long-Term
Care Cm 4192, London: The Stationery Office. Back
S49 "Exclusion of nursing care from community care services"
sets out the following: Back
DoH Press release reference 2001/0455. Back
Announced in The NHS Plan at paragraph 15.181 (Department
of Health, July 2000.) and enacted as s49 Health and Social Care
Act, 2001. Back
HSC 2001/17: LAC (2001)26. Back
These are detailed in "NHS Funded Nursing Care Practice
Guide & Workbook" Department of Health, August 2001
see www.doh.gov.uk/jointunit/freenursingcare. Back
Wigan and Bolton Health Authority and Bolton Hospitals NHS Trust
Case No E.420/00-01. Back
22 June 2004. Back
Case No E.22/02-03 Complaint against: the former Cambidgeshire
Health Authority and South Cambridgeshire PCT. Back
"NHS Funding for Long Term Care: Follow Up Report" HC144-16
December 2004. Back