18.51R v North and East Devon Health Authority ex p Coughlan [2001] QB 213; (1999) 2 CCLR 285
Local authorities were only empowered to provide nursing services to adults that were merely incidental or ancillary to the provision of residential accommodation and that were of a nature that a social services authority can be expected to provide
Facts: Ms Coughlan was rendered very severely disabled by a road traffic accident. After a period of treatment at Newcourt Hospital, which the health authority then wished to close, she and seven other patients were moved to Mardon House hospital, with an assurance that it would be their ‘home for life’. However, the health authority then resolved to close Mardon House. In addition, it determined that Ms Coughlan no longer met the criteria for NHS continuing healthcare, so that she had to resort to local authority residential accommodation. Ms Coughlan submitted that it was beyond the powers of a local authority to provide her with the nursing care she needed and that it was unlawful for the health authority to resile from its ‘home for life’ promise; and a breach of Article 8 ECHR.
Judgment: local authorities were only empowered to provide nursing services that were merely incidental or ancillary to the provision of residential accommodation and that were of a nature that a social services authority can be expected to provide and the health authority’s approach as to the nursing care that it was required to provide was too restrictive; in addition, its ‘home for life’ promise had created a legitimate expectation that, on the facts of this case, could not justifiably be frustrated:
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 Care 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, (March 1999 chapter 6 pages 62 et seq. Cm 4192–1) 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 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 that 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.
43. The fact that there is this background of possible confusion makes it important that any eligibility criteria should be drawn up with particular care. They need to identify at least two categories of persons who, although receiving nursing care while in a nursing home, are still entitled to receive the care at the expense of the NHS. First, there are those who, because of the scale of their health needs, should be regarded as wholly the responsibility of a health authority. Secondly, there are those whose nursing services in general can be regarded as being the responsibility of the local authority, but whose additional requirements are the responsibility of the NHS.
48. It is for the Health Authority to decide what should be the eligibility criteria in its area in the co-operative framework envisaged by the circulars. In doing so it can take account of conditions in its area. We do not accept the argument that there cannot be variations between the services provided by the NHS in different areas. However the eligibility criteria cannot place a responsibility on the local authority which goes beyond the terms of section 21. This is what these criteria do. Cases where the health care element goes far beyond what the section permits were being placed upon the local authority as a result of the rigorous limits placed on what services can be considered to be NHS care services. That this is the position is confirmed by the result of the assessment of Miss Coughlan and her fellow occupants. Their disabilities are of a scale which are beyond the scope of local authority services.