Background to the case

Adams & Remers recently acted in a case in which the level of financial contributions by the NHS to the cost of long term nursing care was successfully challenged.

Mr W suffered a stroke in September 2000, leaving him severely disabled. He was admitted to a nursing home in West Sussex where he required 24-hour care and assistance with all activities of daily living.

Adams & Remers were instructed by Mr W’s niece, acting as Receiver, to challenge a decision by a Primary Care Trust (PCT) to refuse to fund Mr W’s nursing care in full. When the Trust refused to overturn their decision, Adams & Remers identified flaws in the PCT’s review process and lodged a complaint with the Health Service Ombudsman. Subsequently the Ombudsman recommended that the PCT consider Mr W’s claim again.

The law

Mr W’s claim has to be understood in the context of recent important developments in the law.

In July 1999 the Court of Appeal gave a Judgment in the case of R –v- North and East Devon Health Authority ex parte Coughlan. This case considered the issue of who ought to be responsible for funding long-term nursing care at a time when many health authorities would only fund specialist nursing care rather than general nursing care. If the long term nursing care could lawfully be provided by a local authority as a social service then the patient would pay according to his/her means. On the other hand, if it was required by law that the long term nursing care should be part of the service provided by the NHS then it would be free of charge.

The Court ruled that the NHS does not have sole responsibility for all nursing care and that in appropriate cases the care may be provided by a local authority as a social service. However, whether it was unlawful to transfer responsibility for the patient’s general nursing care to the local authority depended, generally, on whether the nursing services were:

1. merely incidental or ancillary to the provision of accommodation which the local authority was under duty to provide pursuant to The National Assistance Act 1948; and
2. the nursing was of a nature which it could be expected that an authority, whose primary responsibility is to provide a social service, could be expected to provide.

Applying the law to Mr W’s case

Almost by definition, the primary need of the vast majority of people in nursing homes is the health one – anyone in a nursing home will be there primarily for their health needs. If this was not the case they could be cared for in a residential care home.

Therefore to satisfy the Coughlan principles, the nature, degree and intensity of the long term nursing required is an important question of fact on each case.

Adams & Remers successfully appealed the PCT’s decision to withhold full funding for Mr W’s long term health care, with an independent panel ruling that they were satisfied his nursing care was more than ancillary to his accommodation and was at a level of intensity, complexity and unpredictability that it should be regarded as wholly the responsibility of the NHS.

Mr W will be able to recover the nursing fees he has paid, which we anticipate will be a six figure sum, with all further nursing fees to be paid direct to the nursing home by the NHS.

For further information, please contact Simon Janaway

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