How relevant is the Coughlan Decision Today?
The Coughlan Judgment remains the single biggest legal landmark case in the area of NHS Continuing Healthcare Funding.
The Law Society stated: “The Judgment in Coughlan clearly establishes that where a person’s primary need is for healthcare, and that is why they are placed in nursing home accommodation, the NHS is responsible for the full cost of the package.”
Background
Pamela Coughlan was seriously injured in a road traffic accident in 1971. She sustained a spinal cord injury, causing complete tetraplegia (with sensory and motor paralysis) and in need of full-time care.
The accident left Pamela Coughlan with severe physical disabilities including partial paralysis of her respiratory tract. She can speak coherently with mental clarity, is able to use an electric wheelchair to mobilise by herself, can use a computer with voice technology (but can’t operate the keyboard), can eat with a leather strap tied around her right hand to hold a spoon in place (provided her food is cut up), and is able to drink with assistance (someone holding the cup).
What is often overlooked is that Pamela has Autonomic Dysreflexia – a life threatening condition which can result in sudden death. It is caused by ‘noxious’ stimuli – commonly bladder and bowel distension – below the level of the spinal injury. The stimuli messages are blocked and can’t get past the spinal injury, resulting in rising blood pressure (hypertension) until the stimulus is removed (eg the bowels are evacuated). Here’s a helpful link that explains the condition in more detail:
Pamela is doubly incontinent, has high ‘Continence’ needs, requires frequent administration of suppositories, intermittent catheterisation every 3 hours, and manual evacuation for every bowel movement. Failure to manage her complex and unpredictable condition can be fatal.
You really need to read the full extent of her condition to understand the totality of her care needs. The Spinal Injuries Association have helpfully set these out in a lot of detail, and you can visit the link below for more information:
The Funding issues
Until 1993 Pamela Coughlan received NHS care in Newcourt Hospital. The Hospital was subsequently closed and Miss Coughlan was moved to a new NHS facility at Mardon House. Pamela Coughlan (and other patients) were promised that Mardon House would be their ‘home for life’. However, in October 1998, in breach of promise, the Health Authority decided to shut Mardon House, leaving the patients and Pamela Coughlan to find alternative accommodation.
In 1999, the NHS Health Authority tried to pass responsibility for Pamela Coughlan’s care needs to the Local Authority (via Social Services) by reclassifying her health needs as ‘social’ needs.
There is a critical distinction between ‘health’ needs and ‘social’ needs and it’s all to do with who finances ie who pays for the care package!
Healthcare needs provided by the NHS, must be provided free of charge at the ‘point of need’, and are not means-tested. Social care is provided by the Local Authority and is means-tested – meaning that you may have to pay for some of all or your care.
By reclassifying Pamela Coughlan’s chronic condition as social care needs, it meant that she fell into the auspices of the Local Authority funding. Her previously free package of care would now be subject to means-testing, with the outcome being that she would now have to pay for her own long term care.
Pamela Coughlan brought her case against the NHS and argued that funding for all her care needs (including food and accommodation etc) should be fully-funded free of charge by the NHS (and not subject to means-testing by the Local Authority).
In 1999, after a lengthy court battle, the Court of Appeal found in her favour, and ruled that her nursing care was the sole responsibility of the NHS. However, the Local Authority can provide some nursing care, but only when that is not the ‘primary health need’, as that responsibility falls on the NHS. This principle is now known as the ‘Primary Health Need Approach’.
Read: Primary health need’ made simple – what does it really mean?
The Court found that unless the nursing care is:
1. ‘merely incidental or ancillary to the provision of the accommodation; and
2. of a nature that an authority whose primary responsibility is to provide social services can be expected to provide’…
then it is the NHS’s responsibility to provide for that individual’s care, even if they have been placed in a home by a Local Authority.
It was held that Pamela Coughlan’s needs were clearly of a scale beyond the scope that the Local Authority (Social Services) were expected to provide and so should be fully-funded by the NHS.
Coughlan raises hope for thousands of others battling the NHS!
Pamela Coughlan’s courage and success in fighting for her rights has since given nationwide encouragement to many thousands of people in a similar situation – who have been shunted from the NHS and subjected to Local Authority means-testing – placing them at risk of losing their lifetime savings or being forced to sell their home to pay for their care.
If this has happened to your relative, then you MUST ask for a reassessment urgently, otherwise your relative could be needlessly paying thousands of pounds every month for their care which could be funded by the NHS, free of charge. If your relative has already passed away then you can request a retrospective review of their care needs as a refund may be due!
Miss Coughlan said that “If you think you should genuinely be funded by the health service and you have similar needs to mine, or more, then you will win.”
Watch her interview here : https://www.youtube.com/watch?v=YaMXowPWxis
People going through the funding assessment process quite rightly refer to the ‘Coughlan’ case in support. This was an outstanding result and clarified the boundary between NHS and Local Authority funding.
Some years later, the Coughlan Judgment led to the introduction of the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care. The National Framework is designed to streamline the assessment process as to eligibility for NHS Continuing Healthcare Funding (or ‘CHC’) – a fully-funded package of free NHS care for ALL your relative’s care needs (including accommodation) if they have a ‘primary health need’.
The National Framework first originated in 2007, was updated in 2012, and was only recently revised in October 2018. It puts the principles of the Coughlan Judgment squarely into guidance for both NHS Practitioners and members of the public to consult when seeking CHC Funding.
Some families directly compare their relative’s care needs to Pamela Coughlan as automatic justification for entitlement to CHC Funding. Whilst Coughlan undoubtedly sets the benchmark in this field, those who have already been through the NHS assessment process for NHS funded care, will know, that in practice, it is not quite that simple.
It is vital to remember that each case has to be looked at on its own merits. No two cases are going to be exactly alike.
This is the critical bit. The National Framework indicates that a full assessment for CHC Funding is to be carried out by a Multi-Disciplinary Team using the Decision Support Tool. NHS Continuing Healthcare is not just about the scores allocated to each Care Domain recorded in the Decision Support Tool (and hence direct comparison to Coughlan), but the overall totality of needs, taking a holistic approach, and looking at the interaction of those needs in conjunction with the 4 key indicators (Nature, Complexity, Intensity and Unpredictability).
Therefore, although Pamela Coughlan secured NHS funding based on her particular care needs, it is suggested by some, that if her needs were to be assessed against the modern National Framework, she would be found ineligible for NHS funding.
That said, the Court of Appeal decision in Coughlan is still as relevant today as it was in 1999. It enshrines in law the principle that if your relative has a ‘primary health need’, then it is the responsibility of the NHS to pay for every penny of their care needs. But how they achieve that funding is determined by the assessment processes set out in the National Framework.
The National Framework does not replace the Coughlan ruling, but embodies Coughlan, such that its principles form the core essence of the National Framework.
The National Framework is guidance, whereas Coughlan is law.
Remember: An assessment for CHC Funding should always take place before any discussion over finances and paying for care, and before any Local Authority assessment (means-tested). Read our blog: So will you be self-funding?
You can read more about the Coughlan Judgment in Annex B of the National Framework (pages 152/153).
In summary:
Whether the NHS or the Local Authority fund your relative’s care package, the decision should be based on healthcare needs and not financial considerations as to who should pay for care. If your relative has a primary health need, then following the Coughlan Judgment, their care package should be funded in full by the NHS, and they should not be asked to contribute a penny. Coughlan is relevant and that is the approach you need to take.
Please share your views and leave a comment here…
For more information read our helpful blogs:
New to NHS Continuing Healthcare Funding? Here’s a guide to the basics you need to know
16 useful tips you need to know at the beginning of your CHC journey
Apply for NHS Continuing Healthcare Funding if your relative has a ‘primary health need’…
I am in absolute despair and need help. I need to publicise our story to the local community.
My 23 year old son has Duchenne Muscular Dystrophy, hus condition is terminal. He’s been bed bound for 12 months and his life expectancy is now in Gods hands.
He is currently living in supported care accommodation in Buer Avenue in Wigan. This is run by a company called CareTech. I have spent the best part of 12 months there as I need to be with my son. Without any actual grounds or official notifications I have been told I must leave the property by Wednesday 31st July.
They have told my son his care will be pulled as of 6pm Wednesday. They have said an ambulance is booked to remove him from the property anytime from 2pm on Wednesday.
This is clearly spoken by an official NHS worker.
My son is clearly stating he doesn’t want to go into the suggested residential care home. He’s 23 not 83.
Please can you contact me and support my son and I.
This is all very well, but the reality is entirely different. My late mother Betty Couch was blind in one eye, virtually blind in her “good” eye, crippled with arthritis, etc. I fought the NHS for years and ultimately went to court, lost and incurred costs.
Oh my God, that is terrible. Let your local paper and tv station know- it might capture their attention. You have nothing to lose. I guess a suitable lawyer could help but mega money. That’s what they bank on. Hampshire county council took me to court for payment of care home costs – which I had withheld as immediately prior to moving into secure dementia home mum had received continuing healthcare funding, the only change was the lock on the door! Anyway the paid a barrister approx £60000 to fight me, who couldn’t afford legal assistance but did have right on my side.
Please try to stay calm – your Son needs you strong and healthy. I am so sorry
Hi Theresa
Can you contact us Care Campaign For The Vulnerable.
Has he got an assured tenancy ? Regardless, you could tell the NHS that If they try to move him without his consent or a court order ,which can then also be appealed against, you will have the NHS charged with assault or kidnapping. Try and get some legal advice as well. Even from Citizen Advice Bureau.
If the care company pulls the care then I think the NHS or Social services will have to provide the care for him where he is living and wants to live.
Hi Teresa,
It sounds like the only thing that will stop this move – beyond mass local action – will be legal action (although I am not a lawyer). I would consider contacting a law firm that is experienced in dealing with “Court of Protection” matters, since even though your Son may not lack “mental capacity” to take his own decisions, I would presume the underlying principles in your case are not dissimilar, and so should be well-known to solicitors who undertake that kind of work.
Although I’m living in Wales, a quick internet search suggests that Messrs McCarthy Bennet Holland, who have an office in Wigan (26 Bridgeman Terrace, Wigan, WN1 1TD. Tel 01942 206060) appear to be very experienced in such principles. They should at least be able to point you to someone who can help. Why not give them a call? The initial discussion will undoubtedly be free (though do ask at the outset!), and you may get very helpful facts, information and action, from a phone call to them – regardless of your financial circumstances.
I will check my emails throughout the day from early morning onwards, and if I can help further, I will be happy to do so.
I have tried to get CHC for my mum, she has many health problems and now vascular dementia I was told that her needs were social and refused CHC but I am doing an excellent job of meeting my mums needs!! At that comment I didn’t know whether to laugh or cry!
Why is Dementia not recognised as a terminal illness? It is a disease of the brain which is dying?
Why do we have to fight for every little thing, it’s hard enough doing the caring without having to fight the ‘ticky box brigade ‘.
Hello Teresa,
I am not a solicitor, but a retired Welfare Rights Lawyer but still dealing mainly with claims and Appeals for Disability Living Allowance, Personal Independence Payment and Attendance Allowance for those over 65. I used to Work for Wigan Metro many years ago.
In essence, in my opinion, he should have been given two months notice and a Court Order obtained because in my opinion this is an ‘eviction’ and is also a breach of your son’s rights under The Human Rights Act 198 see this link http://www.legislation.gov.uk/ukpga/1998/42/schedule/1
You really need to see a solicitor today as soon as possible today, to obtain an injunction from a Judge against CareTech to stop his removal from Buer House. Your son could always refuse to leave, and they cannot physically throw him out, as this would be assault and you could call the Police.
Has anyone else had experience of an MDT comprising of only a Social Worker and a CC nurse assessor? Whilst, I understand that this meets the minimum requirement of the guidance (ie two healthcare professional from different disciplines), health care professionals who are known to the person or are involved directly in their care are not invited to attend. Is this normal practice?
WELCOME.
Welcome to this special edition of News from the Ombudsman.
Today we have launched our annual review of local government complaints for 2018-19.
The report shows we registered 16,899 complaints and enquiries over the period, more than a third of which were about Children and Education Services, and Adult Social Care.
Over the past year we have upheld 58% of the cases we have investigated. When we do uphold a complaint we make recommendations on how councils can put things right. Councils accepted and put in place our recommendations in 99.4% of cases, demonstrating that the sector recognises and is willing to put things right when they go wrong.
Shame we have had no response from Teresa Fletcher who started this discussion.
I do hope that she has taken on the advice of those who offered such good responses.
I pray that she has and that her son was not forced to leave Buer Avenue at 6.00pm
Yesterday I attended an MDT for my mother and their recommendation will be that she is not eligible. They will cut her funding that I previously fought hard for via the fast track after she had a heart attack (they tried to reject the fast track too). At the MDT they scored her as having 1 Severe, 4 High and 3 Medium needs, while I scored her far higher. They are supposed to be expert but were very confused by the difference between a Care need and a Health need and the reasons for their decision are easily contradicted by clauses in the National Framework. When I see them clearly violating both the stat guidance and case law in reaching a flawed eligibility decision, is there anything I can do other than just take it on the chin? Am I forced to accept paying Care costs again and lodging an appeal which goes to them to reject after many months, or are they any other options?
An MDT feels like a kangaroo court where I am the defendant and the CCG is prosecutor is also the judge. I don’t know whether an Independent review is any fairer, but I have no faith in getting any sort of justice at the MDT, Local Resolution Meeting or Local Resolution Panel. You have to go through a lot before you can get to the independent review stage.
The ‘Primary Health need’ test looks like a low bar, as very few people enter a Care home mainly for the accommodation with health needs a secondary concern, but CCGs seem to set their own bar at an arbitrarily high level that has nothing to do with the Primary health need test – yet pretend to adhere to it.
Well I got the completed DST in the post yesterday with confirmation that my mother’s funding was being cut. I feel like I have been mugged. Their whole argument for non eligibility centres around what is a health need and what is a care need, together with the question of who is administering to those needs. My mother needs maybe 30 interventions over a 24 hour period to administer her substantial health needs (they scored 1 Severe, 4 High, 5 Moderate in the domains), but somehow they class them as care needs. Page 17 of the National Framework, section ‘Health need and social care need’ couldn’t be clearer on the difference, but they choose to ignore it.
I do not entirely agree with this article by Care to be different. Autonomic Dysreflexia is a diagnosis of a condition caused by physical injury. I have read a transcript of the Coughlan case and this was never mentioned by the judges. The likely hood for this is that Continuing Health care is not based on a diagnosis of a condition but on the need for care. A quality quantity decision for a condition that does not have to be complex nor unpredictable. So if an elderly person suffers from severe constipation and is unable to excrete their stools because they become impacted and they do not have the strength to do so as a healthy individual does or suffers from retention. This in terms of level of care required and symptoms experienced is similar to Pamela Coughlan’s condition of Autonomic Dysreflexia but may be due to the consequences of stroke or immobility this can also lead to sepsis and be fatal or cause another stroke. Pamela Coughlan wrote a letter of declaration of what her daily needs were and she was judged to need care of a wholly different kind and well beyond the level of care that social services can legally provide. Pam’s signed letter of the 17th of October 2000 listing her daily care needs is to be found on http://www.nhscare.info the website in which she collaborates to campagne for our legal right to continuing health care. The letter is in the link for “advice to solicitors” and it`s called PAMSDAY.pdf. There is also a video of Pam getting arround in her wheel chair. May God bless her in the work she has done and is still doing to help us all in spite of her condition. The secretary of state has deliberately introduced complexity to the system to fraudulently deny us our legal rights. The National Framework is still incorrrect today and does not follow case Law. LAW HAS PRECEDENCE OVER GUIDANCE. Successive governments are continually kicking the can down the street and nobody has done anything over this issue in almost 20 years. Never give up and get specialist legal help if you need it. Good luck
The NHS and local authorities don’t (or perhaps choose not to) understand the incidental or ancillary test and, as a consequence, set the bar far too high .
The legal test for economic transactions is “…. a service is ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied…”. The DST scores should inform this test. So its a matter of (1) translating these scores into the required nursing and/or healthcare services and (2) to determine whether those services are –
(a) a means of “better enjoying” one or more of the elements of social care – para.51 of National Framework – and which puts them under the Care Act 2014; or
b) “constitutes an aim in itself” and is so separate from (and has nothing to do with) any other service. The services fall under the S3 NHS Act 2006. Where a person requires nursing and/or other healthcare services which cannot be provided to the person in his/her own home but in “other accommodation” (S3(b) NHS Act 2006) – care home – then, in reality, the accommodation services are a means of “better enjoying” – or facilitating – the principal service – this being the nursing services (S3(c)) and/or other healthcare services (S3(e)) of the Act.
Is the Coughlan test not now incorporated into statute law? I refer to Regulation 21(7) of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (SI 2012 No 2996). This provides that…
“In deciding whether a person has a primary health need in accordance with sub-paragraph (5)(b) a relevant body must consider whether the nursing or other health services required by that person are :
(a) where that person is, or is to be, accommodated in relevant premises, more than incidental or ancillary to the provision of accommodation which a social services authority is, or would be but for a person’s means, under a duty to provide, or
(b) of a nature beyond which a social services authority, whose primary responsibility is to provide social services, could be expected to provide
and, if it decides that the nursing or other health services required do, when considered in their totality, fall within sub-paragraph (a) or (b) it must decide that the person has a primary health need.”
Unless the Regulation has been amended – and I can find no trace of any such amendment – Parliament intended that paragraphs (a) and (b) above should be applied disjunctively, i.e. only one or the other test needs to be satisfied to establish a primary health need. Paragraph 58 of the National Framework, however, treats the test for a primary health need as conjunctive, asserting that both limbs must be satisfied. But that is not what Regulation 21(7) says. My wife and I are currently at the independent review stage seeking CHC for my (now late) father in law. None of the NHS personnel with whom we have dealt thus far seems to have heard of this Regulation or, if they have, they are studiously ignoring it. Indeed, NHS England quite clearly states in its independent review guidance that the panel does not intend to deal with legal arguments. The Regulations surely take precedence over the National Framework, yet the NHS appears ready to ignore the law as laid down by Parliament and even refuses to engage with representations on that issue.
Am I barking up the wrong tree, or is there a difference here between statute law and the National Framework?