Heard of the ‘Grogan Gap’?

Published 05/11/2019

Please note: This article was published prior to July 2022, and some information may be outdated.

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.

For more information on the landmark Coughlan case and its implications, read: How relevant is the Coughlan Decision Today?

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

Tagged Categories: Case law, CHC funding, Legal and financial matters, NHS Continuing Healthcare

Share this article

18 Comments

Michelle Wetherall November 18, 2019 at 6:45 pm

Hi Jenny, thank you! Sadly my comments and 3 year experience of dealing with my CHC/CCG/NHS/PHSO will only resonate with those families that manage to find this website. I remember when I started out on this journey in April 2016, I came across an article titled " NHS care fund they DON'T tell you about", from that point on it was a "huge struggle" to get information and help. Didn't matter how many times I asked for a checklist to be completed in hospital, it just never happened. I never gave up though and pursued it relentlessly, until I eventually reached IRP with NHS England and dad's case was found UNSOUND & UNSATISFACTORY. As I've said many times, a bittersweet outcome, as dad died during the process. I will always remain angry and sad that the CHC/CCG denied my father the opportunity to return to his home with 24 hour nursing care in place, because they denied eligibility from the 1st checklist. He died in a nursing home, paying for nursing care that he was entitled to from the very beginning.
So, I agree that even three years later, nothing has changed or improved. There has been sporadic news coverage during the last 3 years, lately with the Victoria Derbyshire programme, but even this will have little effect.
Until the Politicians tackle the serious issue of elderly care and how to fund it and how to raise the status of the care work force........ we will all eventually be faced with paying huge care home fees.

Michelle Wetherall November 14, 2019 at 5:26 pm

David, I agree with your response and if I was beginning this journey again, I wouldn't stand for the nonsense that is the "Grogan Gap". It's ridiculous. If we are to adhere to the National Framework and line that says you are either one side or the other in terms of a Primary Health Care Need, then I see no reason whatsoever to consider this.
Your advice is welcome but I fear that many families who are claiming for a loved one, are fighting on their own. To seek the help of a specialist lawyer is hugely expensive and I know from experience that many of the firms will not take cases on a no win no fee basis. I contacted many of them at the beginning of our appeal process and they wouldn't even look at the evidence, without a fee being paid up front. It is business for them! And I don't blame them. I blame successive Governments for not tackling the issue of an ageing population and what to do with elderly care, but don't get me started on this topic!
We did pay a firm to help with our first appeal. As a point of interest I compiled my own appeal at the same time, to see if it was compatible with that of the specialist law firm and to see if the appeal I made was as detailed and as good as what we were paying for.
It turned out, that the appeal I did was actually far better than what we had paid for! Sickening really, but I needed to know that what I was doing was actually good enough. Reassurance that I was getting it right. I knew that with knowledge, attention to detail, keeping records and tenacity it was possible to make the appeal myself. We dispensed with the lawyer after this. This is money that can not be included in restitution, if you are successful. So, families need to be extremely careful about "racking up" fees of a specialist.
I get what you are saying about the only way to get justice is a judicial review and to litigate, but for the ordinary person visiting this site, I guess litigation is out of the question?
The whole process does need reform and I am hoping the efforts of Admiral Matthias will help to make changes.
In the meantime, I think families/claimants need practical advice about how to appeal and what to do about issues such as The Grogan Gap.
NHS CHC isn't going to be reformed any time soon and not whilst the focus of Government is elsewhere!
I took a huge amount of information from this website and I just want others to know that it is possible to fight and appeal successfully.
As for The Grogan Gap! What gap? There shouldn't be any Gap! CHC makes it quite clear that you are either one side or the other. You either have a PHN or you don't. Muddying the waters with yet another term just confuses claimants. My advice is to reject this and focus on proving your appeal through use of the 4 Key Indicators..........there is a wealth of information on here to help you do that.
Good Luck.

Care to be Different November 15, 2019 at 9:36 am

Thanks Michelle - however many people simply do not have the time energy or will to navigate the complexities of this system alone and do need the support from suitably qualified professionals. Kind regards

Andy November 14, 2019 at 11:14 am

As I have said elsewhere the big scam is to deliberately muddle health care and social care, allowing them to get round the primary health needs test. In the National Framework, there is a section that gives definitions for both. Though much of it is obvious and common sense anyway, or it should be (though remarkably not to the assessors). I decided to carefully study what was written in the National Framework, section 'Health Needs and Social care need' page 17, so I could identify the clear distinctions between what was defined for Health Care and what was given for Social Care.

In brief ,though an individual may have significant health issues and is need of both, the glaring difference is that unlike Health Care, Social Care never aims to treat, manage or control a disease, illness, injury or disability.

The individual in question may have a disease, illness, injury or disability, but all the Social Care interventions listed in the NF definition, are there to support and assist with the activities of daily living of someone with those ailments, but clearly not to give treatment or manage those ailments.

Andy November 14, 2019 at 10:56 am

Great answer!

Michelle Wetherall November 13, 2019 at 9:40 pm

Hi Andy, I was like you when I first embarked on this journey to try and get fully funded care for my late father over 3 years ago now. To begin with I was overwhelmed with it, but as I got to grips with the National Framework and with the help of the wealth of information on this website I knew my father was eligible. You have to believe in yourself. You need courage and tenacity and attention to detail.
I agree that there is a lack of impartiality taking place throughout the process. I had to sit next to an assessor at IRP who had not only completed the Fast Track process for my father, but who also completed the local resolution meeting! I eventually learnt at IRP, that the team at CHC was so small (cutbacks) that staff are often tasked with completing Individual Review Panels, even though they had been involved in making the decisions! Completely unfair and impartial. I'm not sure that they are all clueless, more a case of being told what to do, in order to protect budgets and this is where my anger lies! My dear dad was so ill and couldn't do a thing for himself. With Parkinson's disease and dementia he was totally vulnerable and at the mercy of those caring for him. Yet those assessing him deliberately ignored all the evidence of the consultants and specialists involved in his care in order to deny eligibility.
It became a war and I was determined not to back down. As far as I was concerned, all the interventions my father was receiving in his nursing home, were to keep him Safe & alive! My father was in the final stages of Advanced Parkinsons disease and dementia. It was impossible for him to stand or walk and he required around the clock nursing care for all his needs, including those relating to his behaviour and emotional distress caused through paranoia, hallucinations and delusions associated with this terrible disease.
This is not Social Care! My mother has me for her Social Care, to do her washing, ironing, shopping, hair washing etc, etc. These are social needs, not nursing needs!
Andy, I think I said previously, don't allow CHC to simplify your mother's needs, by saying that she just needs daily help like washing, dressing, feeding and moving. If your mother needs all these tasks performing for her then, they are nursing needs. It requires skilled staff to feed someone who cannot feed themselves safely. Aspiration of food debris can lead to aspiration pneumonia and death!
Washing someone who has pressure sores and fragile skin is again a nursing need. Failing to do this properly can lead to further breakdown of the skin, infection and sepsis! Someone who is immobile requires careful management in order to prevent traumatic falls, especially in the elderly. Again, this is not a social need. These are risks that are present and should be assessed if no care was in place.
My father's risks were ignored and I guess it is the same for your mother.
I hope I have helped you to keep fighting for your mum. I kept fighting on and eventually proved our case. A bittersweet victory. The fees we are set to recover will now go towards the social care that my 85 year old mum needs. I'm glad to say, she wouldn't even pass the Checklist Stage, as she can make a cup of tea and sandwich,safely self medicate and use the phone to call for help!
Good Luck!

Chris-G November 13, 2019 at 5:41 pm

In the case mentioned it is about as valid as using the Watford Gap as an excuse. Appeal all the way.

Christopher- L November 18, 2019 at 11:33 am

Another sharp practice excuse to demean a claim , outside the Framework to deceive and frustrate the claimant into giving up, by a dubious invention and means , purporting to be reasonable and or fair.
The MDT are sailing close to the wind here and only a formal Appeal will resolved this issue

Michelle wetherall November 17, 2019 at 6:52 pm

Hi Chris-G, Agree! Apeal, appeal, appeal. Poor old Watford Gap has been around 60 years and whilst it was often berated for its culinary delights it has served the public through the years......unlike CHC! My late father was a fireman with the local fire brigade that covered what was then the Blue Boar. He and his colleagues were exposed to many dangers, yet none as toxic as this scandal!

David Gallone November 13, 2019 at 2:31 pm

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.

E J Foxall November 12, 2019 at 3:57 pm

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

Andy November 10, 2019 at 5:12 am

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"?

Andy November 10, 2019 at 10:13 pm

To answer my own question, I would class hoisting as a health care intervention as I consider it as 'managing a disability' so falls within the Health care definition:

related to the treatment, control, management or prevention of a disease, illness, injury or disability, and the care or aftercare of a person with these needs (whether or not the tasks involved have to be carried out by a health professional).

Michelle wetherall November 8, 2019 at 9:18 am

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.

Jenny November 13, 2019 at 4:20 pm

Well said Michelle. So many of your comments resonate.
It really doesn't help that all this week Radio 4 Today has been discussing political pledges about "Social Care" . In almost every vox pop they've featured the relative had a clear Primary Health Need. Some relatives even mentioned their struggle to discover information about CHC and to finally get it. Needless to say the interviewer failed to follow this up. Its not helpful that the government department dealing with this allows an easy conflation of two distinct terms by calling itself Department for Health and Social Care. Before we know it, it will all be seen as the same thing - social care - for which the patient (of any age) pays after mean testing.