High Court joins chorus of criticism of ‘unclear’ continuing care system

The controversial NHS continuing care system suffered a fresh blow last week when a High Court judge strongly criticised Department of Health guidance on determining eligibility.

With the DH currently drawing up a national framework for continuing care to replace the current system of locally determined eligibility criteria, Mr Justice Charles said the current guidance on which such criteria were based caused considerable confusion.

The case was brought by Maureen Grogan, who claimed she was wrongly denied fully funded continuing care by Bexley Care Trust, using criteria laid down by the South East London Strategic Health Authority.

Instead she was put on the top band of the registered nursing care contribution, forcing her to contribute to her own care.

Mr Justice Charles said the care trust had used “fatally flawed” criteria in not following the landmark 1999 Coughlan judgment, which stated that anyone with a “primary health need” should be eligible for continuing care.

Mr Justice Charles called on Bexley to reassess Grogan in line with the Coughlan judgment.

Echoing criticisms made last year by the health ombudsman and health select committee, the judge said DH guidance on continuing care and the top band of the RNCC caused confusion between the two systems.

He said: “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 its report last year, the select committee said the similarity in wording between guidance on continuing care and top-band RNCC meant people placed on the latter were often wrongly denied the former.

This meant they and their local authority would have to fill the funding gap between the £129-a-week top-band RNCC and the full cost of care – £520 per week on average for a nursing home place in 2004-5.

Despite the judge’s criticisms, the DH interpreted the judgment positively, saying it was a “green light” for it to launch a consultation on the national framework in April.

A spokesperson for Bexley Care Trust said it was considering the judgment.