NHS commissioners face court action over cost-capping continuing healthcare policies

Policies breach human rights, equalitiy laws and continuing care framework and risk forcing people into care homes, says watchdog

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The Equality and Human Rights Commission has threatened legal action against 13 clinical commissioning groups on the grounds that their continuing healthcare policies breach equality and human rights law and risk forcing people into care homes.

The watchdog wrote to the CCGs earlier this week to initiate judicial review proceedings, giving them 14 days to respond and saying that they would be taken to court unless they provided evidence demonstrating that their policies were lawful or took steps to review them.

The dispute concerns the legality of blanket policies that limit the amount that the CCG will spend on people’s continuing healthcare in their own homes, resulting in some people having to be supported in a care home against their wishes.

Alleged human rights breach

The commission says that effectively requiring someone to leave their own home interferes with their right to private and family life under Article 8 of the European Convention on Human Rights, which is incorporated into UK law by the Human Rights Act 1998. Such interference may only be lawful if it is proportionate, which the watchdog says requires taking into account a person’s individual circumstances, rather than adopting blanket policies.

It also says such policies are contrary to the public sector equality duty, under section 149 of the Equality Act, which requires public bodies to promote equality between people with a protected characteristic (disability in this case) and those who do not. According to the commission, the policies also run counter to the National Framework for Continuing Healthcare and NHS-funded Nursing Care, which CCGs must follow unless they can demonstrate cogent reasons for not doing so.

While the framework states that CCGs may take account of the relative costs of funding a CHC package in a care home or at home, cost considerations must be balanced against other factors, such as an individual’s desire to stay in a family environment.

A revised framework, due to come into force in October 2018, uses stronger language on this point stating that CCGs “must not set arbitrary limits on care at home packages based purely on the notional costs of caring for an individual in a home, if this does not represent a personalised approach or an accurate appraisal of the cost of meeting the assessed needs of the individual concerned”.

‘Unacceptable’

Commission chief executive Rebecca Hilsenrath said: “It is utterly unacceptable that anyone should be forced into residential care when they are healthy enough to live independently and with their families. And it doesn’t make sense for individuals or communities.

“A “one-size fits all” approach will never properly address every single individual’s healthcare needs, and NHS CHC policies are no different. This is another example of individuals being disabled by society, and prevented from living as full and independent lives as possible, as is their right. We will use our powers to ensure that the NHS thinks about this again.”

The 13 CCGs are: Brent; Coventry; Dudley; East and North Hertfordshire; Eastern Cheshire; Harrow; Hillingdon; Lincolnshire West;  Redditch and Bromsgrove; South Cheshire; Vale Royal; Warwickshire North; West Cheshire.

What the policies say

A policy dated May 2017 covering Eastern Cheshire, South Cheshire, Vale Royal, West Cheshire and Wirral CCGs (the latter not being among the CCGs written to by the commission) states that the “cost of funding a care at home package of care will not usually be met if it exceeds more than 10% over the cost of providing care within a care home setting”.

In Dudley, a policy dated January 2017 and due for review in 2020, states that “in order to ensure appropriate use of public money an individual’s package of care at home will not be considered beyond this 20% threshold for a care home placement”

A shared funding protocol covering Brent, Harrow and Hillingdon, dated 2014 but described as current on Hillingdon CCG’s website, states that where the person and family’s preferred care setting is not the most cost-effective the overall circumstances will be considered. It then lists a series of factors to be taken into account in deciding whether to fund a package at home, which include the person’s informed and preferred choice, but also whether the total cost of providing care at home is more than 10% above the cost of a nursing home placement.

A spokesperson for Warwickshire North CCG said: “We have been made aware that we will be receiving the letters from the Equality and Human Rights Commission regarding the Continuing Healthcare funding. Unfortunately, we cannot comment at this time until we have reviewed the letter and spoken with the appropriate teams.”

  • Do you understand the law on continuing healthcare and your role within the CHC process? Register now for Community Care Live Manchester, on 24-25 April,  for free training on this issue and many other key legal and practice topics. See the latest programme here.
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