Heard of the ‘Grogan Gap’?
We were contacted by an Enquirer who attended a Multi-Disciplinary Team meeting (MDT) and was told that her mother scored 2 “severes” and 3 “highs” in her Decision Support Tool. But, although her needs were above the Local Authority remit and above Funded Nursing Care, they were not high enough to demonstrate a ‘primary healthcare need’. She was told that her mother fell into the ‘Grogan gap’.
The ‘Grogan gap’ is not a recognised term within the National Framework for NHS Continuing Healthcare and NHS–funded Nursing Care (revised 2018), which suggests it is invented ‘CHC speak’ by the NHS.
So, what exactly is it? Read on…
The Grogan case is referred to at Annex C on page 154 of the National Framework for NHS Continuing Healthcare and NHS–funded Nursing Care (revised 2018).
Grogan vs Bexley NHS Care Trust
Briefly, in 2005, Maureen Grogan’s family challenged her local Clinical Commissioning Group’s decision (then known as a Primary Care Trust) to deny her Funded Nursing Care (FNC). In January 2006 she won her case in the High Court.
FNC is a weekly sum paid by the Clinical Commissioning Group directly to the care home, as a contribution towards the cost of your relative’s nursing care needs that are provided by a registered nurse, employed by the care home. FNC is not assessed or means-tested, and is currently paid at the national rate of £158.16 per week (2019) tax free.
For more information read our blog: Have you considered NHS-Funded Nursing Care (FNC)
At the time, chronically ill, Maureen Grogan (aged 65), suffered with Multiple Sclerosis, dependent oedema and the associated risk of ulcers, had nil mobility, mobilised using a wheelchair and required 2 people to assist with transfers, was doubly incontinent and experienced cognitive impairment.
Her health deteriorated following a fall in late 2002 when she was admitted to hospital. Upon discharge from hospital in early 2003, she was unable to live independently, and so she moved into ‘Gallions View’, a Local Authority funded Nursing Home, costing £600 per week.
Maureen Grogan was assessed by Bexley NHS Care Trust in 2003 and although she had substantial needs, they were not deemed sufficiently high enough to qualify for fully–funded NHS care (based on the eligibility criteria at the time). However, due to her nursing needs, she qualified for NHS-Funded Nursing Care instead – a weekly sum of £125 paid by the NHS to the care home as a contribution to Mrs Grogan’s nursing care needs.
Mrs Grogan was forced to sell her home to make up the shortfall to pay for her care home fees and accommodation.
She was reassessed in 2004, and then again for a third time in 2005. On each occasion, she was found ineligible for fully funded NHS care – primarily because the NHS moved the goalposts in terms of defining her level of need – despite her evident healthcare needs!
She pursued her legal case against Bexley NHS Care Trust to the High Court, arguing that it was unlawful to deny her funding.
Maureen Grogan relied extensively on the Court of Appeal decision in the Pamela Coughlan case (see Annex B, page 152 of the National Framework). Like Coughlan, she argued that her needs were ‘primary healthcare needs’, and therefore, all her care needs, including accommodation, should be paid for by the NHS – free of charge.
The High Court found that the NHS Trust had not followed the Coughlan test when carrying out its decision–making process and agreed Mrs Grogan should not have had to pay for her own care. The Court stated that the criteria used by the Bexley NHS Trust in reaching their care funding decision had been “fatally flawed” – finding that it did not have in place, nor did it apply the correct test when determining whether Maureen Grogan had a primary healthcare need. The Court held that the Bexley NHS Trust’s decision was wrong, and that Mrs Grogan’s case should be remitted back to them to reconsider her eligibility for fully-funded care.
Back to the ‘Grogan gap’…
The Court identified that there can be an overlap, or a gap, between the funded care that a Local Authority is obliged to provide, and what the NHS must provide. The implication is that there can be situations where funding for care needs is the joint (ie overlapping) responsibility of both the NHS (to provide healthcare) and the Local Authority (to provide social care). Alternatively, in the event of a dispute or maladministration, an individual could fall into a gap between two organisations as to who should fund their care (despite the over-arching principle that there shouldn’t be a gap in funding!).
It’s vital to remember the basics. If your relative has a primary healthcare need, then it is the responsibility of NHS to pay for ALL of their care, including accommodation – now known as NHS Continuing Healthcare Funding (or ’CHC’). CHC is not means–tested and is free of charge at the point of need, irrespective of wealth, or the setting where your relative lives. Social care is provided by the Local Authority and is means–tested. Therefore, your relative may have to pay for some or all of their care costs, depending on their financial circumstances. The critical distinction between healthcare and social care is often misunderstood, but makes a difference as to who pays for your relative’s care.
Scenario:
What happens if your relative does not have a primary healthcare need, but the nursing element of their care is above and beyond Funded Nursing Care (which the Local Authority cannot lawfully fund)? For example, they have healthcare needs but not quite demanding enough for full NHS funding, and so fall into a funding gap (the ‘Grogan gap’). Whose responsibility is it to meet the cost of care?
In this event, you must consider whether your relative is entitled to a combined Joint Package of funded care which is provided by both the Local Authority (via Social Services) and the NHS. For example, both organisations could contribute to the cost of care equally on a 50/50 split. Beware! In this example, the Local Authority’s 50% will be subject to means-testing and your relative may have to contribute financially to funding.
However, imagine that the jointly-funded care package is apportioned differently between the NHS and the Local Authority – say 80% is funded by NHS and 20% is funded by the Local Authority. The indication here is that the individual’s health needs clearly outweigh their social needs. If this happens, you must argue that the overwhelming reason for funding is clearly a healthcare need, and as such, all your relative’s care needs (and accommodation) should be paid by the NHS in full.
Read our helpful blog: Are You Getting A Joint Package Of Care?
Find out how Care to Be Different can help: https://caretobedifferent.co.uk/about/
Read: The Coughlan case and Grogan case: Your 9-point checklist for NHS Continuing Care
If you need specialist legal help visit our one-to-one page
Another hurdle to negotiate then! Muddy the waters with more acronyms and terminology to frighten off claimants. It is hard enough to get to grips with the NF and that invisible line that puts a claimant either the responsibility of the NHS or S.S …….but this is clearly another tactic to bamboozle those claimants. We are now at the end of this gruelling process but if I was at the beginning again I wouldn’t agree to this at all. If the DST had scored 2 severes and a number of highs then I would suggest that there is sufficient evidence to prove that the claimant through the use of the Key Indicators has s PHN.
FNC is a “red herring” in all of this! It allows families to think they are being helped/funded. In reality the paltry contribution is nothing compared to the average weekly nursing home cost. Its only awarded if your in a Nursing home….not a care home…..so if you need nursing it suggests to me that your care is beyond that of being social.
My father was awarded it. My mother thought it was “very nice of the NHS to help us”, but the reality was my late father was a very ill man suffering from PD & Dementia. Had he not been in a nursing home he would have been in a hospital, where his care would have been free and what he had paid for all his working life!
My family still don’t really understand what CHC is, even after I have explained it so many times to them.
So my advice is to anyone starting out on this journey is to believe in yourself. Check everything that you are told, because quite often those in authority don’t know the National Framework or the Law. Employees come and go and your case over the years it takes to secure funding will be handled by various case handlers who don’t know your relative and circumstances and will make errors! So be vigilant and determined.
Thanks CTBD for highlighting another ‘term” that is being used to deny full funding.
I am trying to put together a list of nursing/health care interventions for my mother to present at an appeal. As there is a definite muddling between health care and social care going on, I have also been studying the definitions of both and want to be sure that the interventions I include are not social care.
Does anybody have a view on the act of using a lifting hoist to lift and move a completely immobile and severely fragile individual? Is this a nursing service or a social care service where the intervention is to “assist in activities of daily living”?
My experience is that if you fight the nonsense by requesting that they specify the clauses of the national framework on which they will rely at the appeal. Also give formal notice of your intention to appeal on receipt of the information you have requested.
In addition request a copy of the panels reasons for the refusal to provide fully funded healthcare even though the support tool indicates the criteria have been met.
Use the exact wording from the NHS guidance which instructs the requirements to fund wherever it is possible.
All contacts should be in writing. All meetings should be minuted by you and copies to all and sundry. Involve your MP and get him to write to the Health Minister. Request a copy of all correspondence with The Head of NHS MrStevens.
Don’t be put off I successfully succeeded 3 years running with persistence.
Good luck
PS Make sure your facts are right
First of all, CHC is an all or nothing consideration the care cost cannot be split between the NHS and Social Services this is a tactic the NHS uses to not face up to their full legal responsibility for paying for health care so they try to split the care given into what could be considered social care and health care and only give you the FNC contribution of £158 per week to cover Registered nursing care. It`s a scam and its illegal and a way of making you pay for or contribute towards paying for your own health care which YOU HAVE ALREADY PAID FOR WITH YOUR TAXES AND ARE LEGALLY ENTITLED TO.
The Grogan Gap is created by effectively raising the qualifying bar for CHC to an ILLEGALLY HIGH LEVEL beyond that established in Coughlan. This is what the key assessment criteria in the framework are designed to do ( Nature, Intensity, Complexity, and Unpredictability). These Criteria were judged to be FATALLY FLAWED (means Illegal) by Lord Justice Charles. Remember that the Framework which the NHS APPLIES AT IT`S OWN CONVENIENCE TO SAVE COSTS BY DENYING YOU CHC is only a Guideline and LAW HAS PRECEDENCE OVER GUIDELINES. Most of these so-called professionals do not understand their own guidelines let alone the legal implications. The LEGAL TESTS that the Courts applied are simply these and are found in Section22 of the 2014 Care Act:-
Test 1) If a service can be provided under the NHS Statute it cannot be provided under the Social Services Statute as Social Services is the Statute of last resort where no other means are possible.
Test 2) The Care needes must not be MORE THAN MERELY INCIDENTAL and ANCILLARY to the Accommodation which Social Services are responsible to provide, this is the QUANTITY TEST. Merely Incidental care i.e. not ongoing, and Ancillary, meaning in support of the accommodation. This means that if you have been properly placed in a Nursing Home by the authorities you need Full Nursing Care by a Registered Nurse that Social Services are only allowed to give in temporary situations with the approval of the CCG or in emergencies and not on a continuous bases or that the scale of your low-level needs are beyond that which Social Services can provide and do not necessarily need the services of a registered nurse then you are entitled to CHC. The needs do not have to be Complex or Unpredictable nor do you necessarily have to be in a Nursing Home which is the extreme case. Otherwise, we would all be living independently in our own homes with the odd visit from a Social Worker or Residential homes which are cheaper.
Test 3) The Service must be of a Nature that you would expect Social Services to provide. This is the QUALITY TEST. This information should be addressed by the results of your Decision Support Tool all be it inadequately so and this is also the opinion of 80% of professionals that have to apply the DST i.e. the DST is not fit for purpose.. The DST is used as a scoreboard and as an assessment tool which is contrary to Guidelines and is illegal to use it in this way.
Both the Quality and Quantity Criteria for Care, the LEGAL CRITERIA USED BY THE COURTS in Coughlan, were given equal weighting such that if either of these criteria were exceeded then Social Services cannot legally provide the Care Needs and the responsibility lies completely with the NHS. So the authorities will procrastinate and prevaricate in order to save money. This is their only motive and also contrary to the 2018 guidelines par 64 page 21.
The only way you will get justice is through a judicial review. The whole appeals process is biased unfair long and unfit for purpose. This includes the Ombudsman stage which you can skip after the Independent Review Stage and go straight to court. But be sure you have a case by getting advice from a specialist lawyer if you are going to litigate and on a no win no fee bases.
Further evidence you can find online, in 2017 and 2018 Letters were sent to 44 Clinical Commissioning Groups by the European Human Rights Commission threatening legal action for their illegal application of CHC policies and for breaches in National Framework Guidance. , Capping of care costs, breaches in human rights Article 8 the right to a private family life instead of being forced into institutional care against their will, also breaches of the 2010 Equality Act section 149 unlawful discrimination, and Article 19 of the UN Convention of Rights for Disabled Persons
the rights of disabled people to live independently.
Services should be patient-centered as a minimum and take full account of a person`s own views and wishes and that the person’s own perspective is the clear starting point of every stage of the assessment process!!!! This is in the National Framework and it is not being followed. You will have to fight this in court but the chances are that the NHS won`t want to go there as they know they are acting illegally but they will make you fight every step of the way. God help those that cannot they will just get trampled on. Is this fair or moral? These people have really thrown their moral compass out of the window.
In the case mentioned it is about as valid as using the Watford Gap as an excuse. Appeal all the way.