What is the “Coughlan” case and what does it have to do with NHS Continuing Healthcare Funding?

by Ridley & Hall in James Urquhart-Burton, NHS Continuing Healthcare posted September 23, 2022.

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The “Coughlan” case was a ground-breaking application for a Judicial Review in the arena of NHS Continuing Healthcare Funding.

Just to clarify – a Judicial Review is the name given to a type of claim which individuals can bring against public bodies, like the NHS; it’s the way the courts can hold public bodies to account in respect of decisions which are unreasonable, irrational and unlawful.

If you find yourself in the midst of a Continuing Healthcare appeal or retrospective review arguing that your loved one met the eligibility criteria, it is worthwhile giving some thought to this case.

The background was as follows:

Pamela Coughlan was grievously injured in a road traffic accident in 1971 which left her tetraplegic (unable to move upper and lower parts of her body). She was doubly incontinent, requiring regular catheterisation. She also suffered partial paralysis of the respiratory tract with consequent difficulty in breathing, along with recurrent headaches caused by an associated neurological condition.

Pamela was cared for free of charge in an NHS hospital, but in 1993, the hospital was closed and she agreed to move to a purpose-built facility called Mardon House, also NHS funded. At that time, Pamela was promised by the NHS that Mardon House would be her “home for life”. All was well until 1998, when North and East Devon Health Authority decided to close Mardon House and hand responsibility for Pamela’s care over to the local authority.

For those who are not aware, where the NHS provides care, that care is usually free – the Secretary of State for Health is required to promote a free comprehensive health service. On the other side of the spectrum, the local authority is legally responsible for providing accommodation and social care, which is not necessarily provided free of charge and is subject to means testing.

In other words, although Pamela had been receiving her care for free from the NHS, initially for a long time in a hospital, and thereafter at Mardon House, the health authority’s decision to close Mardon House and transfer her care over to social services meant that Pamela would have to start paying for her care, which would now be the responsibility of the local authority.

So in 1998, Pamela made an application to the High Court for a Judicial Review of the health authority’s decision. A key aspect of her case was that the health authority had given her a legitimate expectation that her arrangements at Mardon House would be permanent. However, the relevance of the judgment from an NHS Continuing Healthcare perspective is that the judge considered the question whether the health authority remained responsible for Pamela’s care, on the basis that she needed nursing care.

This decision would be an extremely important one; because if the judge were to conclude that all nursing care must be solely the responsibility of the health authority, then this would have enormous financial ramifications for the NHS.

In the end, the judge did find in favour of Pamela Coughlan – he concluded that there was no “overriding public interest” to justify breaking the promise that she would have a home for life and further, he said that “health care can never be social care”, and that all nursing care must be provided by the NHS. Unsurprisingly though, that was not the end of the matter and the health authority appealed the judge’s decision to the Court of Appeal, which considered the case and issued its judgment in 1999.

The appeal was dismissed and Pamela won a second victory, but there was an important distinction drawn from the previous High Court judgment:

The Court of Appeal concluded that those with a primary health care need are the sole responsibility of the NHS health authority, but it is permissible for local authorities to provide some nursing care. So, the court confirmed that local authorities could only provide nursing care, where that nursing care is:

merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide and
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.

The first part of the test is focusing on the overall quantity of the services and the second part focusses on the quality of the services provided.

The significance of the Court of Appeal’s decision is that there will be people who are in receipt of nursing care who do not have a primary health need and are not eligible for NHS Continuing Healthcare, because their nursing needs are not of a quality and quantity which places them outside the realms of what a local authority can lawfully be expected to provide.

Whilst this is the closest the law has gotten to defining where the line is between health and social care, it is not without difficulty or controversy in its application. Even 23 years on from the judgment, those tasked with applying this test will rely on their own professional judgment when drawing the line and assessing the quality and quantity of the nursing services provided.

This is particularly difficult because nursing services are not, necessarily, always provided by nurses. Take for instance the diabetic patient who is visited by a nurse to administer their insulin and monitor their blood sugar levels – how or in what way is this anymore a health need than if the exact same things are done by an unqualified carer, such as a son or daughter? Another difficulty is that in reality, nursing needs tend to describe care which requires skilled or timely intervention, rather than needs which are necessarily addressed by an actual nurse.

The National Framework for NHS Continuing Healthcare and NHS funded Nursing Care was developed by the Department of Health with a view to providing some additional clarity to supplement the Coughlan judgment, in the form of best practice guidance. The latest copy can be found here.

This is where the concept of the four key characteristics of eligibility also emerges: which is why assessors talk about the Nature, Intensity, Complexity and Unpredictability of a person’s needs.

Assessment tools have also been developed to be completed by assessors to keep them on the right lines, such as the Decision Support Tool which can be found here.

In my experience, so many people are told by professionals working in the industry that the Coughlan case is no longer relevant, or that the National Framework has replaced it. Some will even tell you that you cannot refer to Coughlan when you are appealing a decision of ineligibility for NHS Continuing Healthcare Funding.

Nothing could be further from the truth.

The Coughlan case remains good law and ultimately, the legal test which the NHS must apply when assessing eligibility, is the “Coughlan test”; they must consider whether the nursing care required is more than merely incidental or ancillary to the provision of accommodation, and of a quality and quantity which a local authority could lawfully be expected to provide.

Coughlan therefore remains of enormous importance, and any lawyer will rightly tell you that that no case law can be “trumped” by guidance and by the same token, the National Framework cannot supersede the Coughlan judgment.

The position is instead that the National Framework must comply with the Coughlan judgment. It is no accident that a summary of the Coughlan judgment appears at Annex B of the National Framework.

The Department of Health’s Primary Health Need test and the concept of the four key characteristics of eligibility all stem from the “incidental and ancillary” test laid down by the court in Coughlan. Applied appropriately, they can complement the judgment and help eligibility assessors to come to the right decisions on eligibility.

However, in my experience, the eligibility criteria is sufficiently broad to allow for wide variation in decisions on eligibility, and even the court was clear that each individual must be assessed on their own unique set of needs, but it is nevertheless true that Pamela Coughlan’s needs were found by the court to be of a “wholly different kind” to the needs which a local authority could lawfully provide.

Accordingly, it is perfectly legitimate to draw comparisons between the needs of Pamela Coughlan and those of an individual who is being assessed for NHS Continuing Healthcare Funding. In my view, any assessor who would argue to the contrary demonstrates a fundamental lack of understanding of the legal basis of the NHS’ legal responsibilities in relation to NHS Continuing Healthcare, and this may in turn give rise to a decision which can and should be challenged.