The Grogan case
In 2005 Maureen Grogan challenged the NHS in the High Court for care funding…
Maureen Grogan’s family challenged her local Primary Care Trust’s (PCT) decision to deny her Funded Nursing Care.
(At the time it was a PCT, whereas now it would be a Clinical Commissioning Group – CCG.)
In January 2006 she won her case.
Like the Coughlan Case, the Grogan Case has given families who are pursuing NHS Continuing Healthcare further clout in their legal argument.
Challenging the NHS can be a hard fight, and it helps enormously to be able to refer to and take courage from people who have already succeeded.
As with Pamela Coughlan, Maureen Grogan and her family also deserve our immense gratitude.
Criteria “fatally flawed”
The judgment in the Grogan Case in the High Court for England and Wales showed that the criteria used by the NHS in their care funding decision had been “fatally flawed” and that Maureen Grogan’s should not have had to pay for her own care.
Clear primary health need
At the time Maureen Grogan, 65, was chronically ill with multiple sclerosis and additional health needs, including dependent oedema and the associated risk of ulcers. She had nil mobility, was totally dependent and also experienced cognitive impairment. She was in a Nursing Home and she had already had to sell her house to pay for care.
Incorrect decisions
The NHS had care assessed her three times as ‘ineligible’ for NHS Continuing Healthcare – even though the care assessments showed she had substantial health needs. She was receiving the (then) top band of Funded Nursing care (FNC) – also known as Registered Nursing Care Contribution (RNCC).
High Court judgment
The Grogan Case came after the landmark Coughlan case and relied heavily on the legal argument that came out of that case. The final judgment in the Grogan Case found that Maureen Grogan’s local NHS Trust (Bexley) had moved the goalposts in terms of defining her level of need – with the result that Maureen Grogan had repeatedly been found ‘ineligible’ for NHS care. The judge found the PCT had not followed the Coughlan Test in it’s decision-making process and set aside their decision to refuse her funding. The Judge recommended that the PCT reconsider her entitlement to NHS funding, in compliance with the Coughlan case.
Since the Grogan case, new national guidelines about NHS Continuing Healthcare funding have been drawn up in an attempt to make things clearer. However, despite this, tens of thousands of elderly people with health care needs as their primary need are still being forced to pay for their own care.
Find out how Care To Be Different can help.
The Coughlan case and the Grogan case: Your 9-point Checklist for NHS Continuing Care
I am trying to obtain continuing health care. I am a C5/6 complete spinal injury and I am facing barriers with my health authority. I live at home in Sutton Surrey. I have autonomic dysreflexia which occurs often. My care needs are similar to the Coughlan case.
Hi – Reading paragraph 90 in the National Framework it’s almost saying don’t take any notice of the Coughlan and Grogan cases:
“CCGs should be aware of cases that have indicated circumstances in which eligibility for NHS continuing healthcare should have been determined, and where such an outcome would be expected if the same facts were considered in an assessment for NHS continuing healthcare under the National Framework (e.g. Coughlan or those cases in the Health Service Ombudsman’s report on NHS funding for the long-term care of older and disabled people). However, they should be wary of trying to draw generalisations about eligibility for NHS continuing healthcare from the limited information they may have about those cases. There is no substitute for a careful and detailed assessment of the needs of the individual whose eligibility is in question.” Am I reading right? I thought the whole Framework thing was about the two cases in question.
Hi Angela, your book & advice was invaluable to us in securing CHC funding for my mother who has Alzheimer’s. At the time of the funding being granted she was sectioned in a mental health NHS Hospital & had very complex needs & scored highly in almost every category. Gradually, as she became more severe a lot of her acute symptoms subsided & she was moved to a complex needs nursing home. She has been there for 3 months & her CHC has just been reviewed & removed. She is no longer independently mobile, she’s doubly incontinent, cannot feed / drink herself & has to have all her personal needs met. I wondered if, in your opinion it is worth challenging the ruling to remove CHC, or if indeed, now she only has “social needs”. I have read the coughlan case, but I can’t work out where we stand in relation to this. I would be hugely grateful for any advice you can offer and would like to thank you for helping us through this complicated minefield. Regards, Paula Lusk
Only just read this but it sounds as though now that ‘ the needs ‘ have been met the assessors have withdrawn funding as the person has been assessed on ‘ met needs ‘ which is unlawful as a need is a need whether the need has been met or not. It is not that the person with needs has made a miraculous recovery.
After a long battle with CHC and no legal help, the lady I care for has been awarded continuing healthcare again after the local authority has deemed again that it is beyond their legal remit. Now the assessor is trying to reduce the package of care that my client receives. Her issues have barely changed and on one domain went from moderate to high regarding behaviour. She has carers all night for 5 nights a week and 3 sitting services a week in the afternoon as well as carers for pad changes 4 times a day. This has been in place for approximately 3 years. Any ideas how we can fight any changes to the package already in place. We are not asking for any additions. I can only find one answer in the national framework regarding this. Paragraph 167, which isn’t very clear
Having just received outcome of MIL’s local appeal (why do the always time these things to arrive at the weekend) guess what…. “because her conditions are stable and predictable and in line with that expected for her illnesses she doesn’t qualify” they go on to use the DST as a decision making tool.
In short either negligence and incompetence to the Nth degree or fraud and collusion.
Ok where next well appeal to NHS England ( how many years !) A formal complaint to CCG about failure to put a legal process in place and a reference to the Serious Fraud Office. about the local and National approach ….. so there goes the rest of the weekend.
After 27 years of meeting the criteria for Continuing Healthcare (CHC) our disabled adult son in 2009 was found to be ineligible to receive CHC. In 2011 the same happened. In 2012 he was assessed when we moved by social services and because our sons injuries were caused by medical negligence at birth they sent a legal letter demanding to see his Trust Deed. He was not assessed by the new CCG until 2014 when yet again his health needs were consistently downgraded. I found your book last year and have read every page of it several times. I asked for a CHC assessment April 2016 which was done 11th July 2016 and yet again he was considered ineligible . One of the questions was does your condition affect you emotionally and psychologically they said he was not. The nurse assessor was not qualified to give an opinion on this question and our son has not been assessed as to how his condition affects him. I used your book and raised a complaint in August 2016, after the letter was read out to him again saying he did not meet the criteria he asked me to let him die. I made a complaint to PALS as well as CCG and another assessment was carried out where he met the criteria for a full MDT. This takes place next Tuesday. I have copied your 9 comments on the Couglan and Grogan cases so I can read them if necessary. The Nurse assessor and social worker have both never assessed our son or even met him. It says it should be done by professionals involved in your care. If there is any advice you can add I would be grateful as son cannot do anything for himself having quadriplegic spastic cerebral palsy.
Back in May 2012 i claimed retrospectively payment for my late mother who passed away in November 2005 She had severe Dementia and had been in a care home since May 2003 and we had to sell her home to pay the £30,000 pounds carehome fees. The most recent response from the CCG is her assessmemt records were destroyed in 2013 nearly a year after i first claimed .I’ve in contact with the ombudsman and still waiting for a result some 5 years of dispute .I suppose the message is don’t let them grind you down.
Hi, my nan went into hospital following a fall which broke her hip from there she has rapidly declined, she is no longer mobile nor can she complete any personal hygiene, whether she takes her medication is very dependent upon her that day, she has had a CHC assessment where they have stayed that she is eligible for part funding I think it’s atound £150 a week they have said she needs to sell her house to pay for the rest of her care (nursing home) or one of the grandchildren needs to look after her 24/7 my question is she has been deemed to have a primarily health need however these needs aren’t so great that she requires full funding how is this possible? She has a primary health how are they able to state that she does not qualify for full funding? Also as mentioned above they have stated that she needs to sell her house and we need to go through the court of protection for this could I delay this until I have appealed the decision or will myself/ nan be made to sell her house before I have appealed this to the highest possible rank? Thank you so much for your response
My CCG said they didn’t know anything about the Coughlan or Grogan Cases and did not use them. Our CHC funding has been taken away after a complete farce of an MDT meeting filling out a new DST.
Rather late in the day now to be commenting on this one but your advice remains as relevant as ever and many more people will be reading this article in the years to come.
I have recently appealed my father in law’s case to contractors to his local ICB and been refused CHC. One of the many appeal grounds was that there was no mention on the DST of the crucial test laid down in Couglan and in the Framework and in the Care Act for the award of CHC. Nor was there any mention of any test which might have been adopted by the MDT in evaluating the Primary health Need, except in terms of the Framework guidance for the 4 characteristics of need.
I asked the MDT assessor at the outset of the DST process whether or not the Coughlan test would be applied and she replied that she was not sure what I meant, despite the fact that this is reproduced in the guidance and statute. I had confidently expected, as a lawyer, that there would be an opportunity for me to make representations about the Primary health need when we had completed the DST scoring -which itself was something of a farce. But no. The entire discussion was shut down at that stage leaving no opportunity to discuss the legal test and the principles which came out of Coughlan, the legal limits of Local Authority responsibility and of course the 4 characteristics of need and how they are at odds with the facts of Coughlan and Grogan and other legal and ombudsman cases.
Things were no better on appeal after I had submitted a 64 page document to the appeals people together with about 40 pages of exhibits. They would only concentrate on the DST and the scoring they said – and they did – so no acknowledgement again of the mandatory Coughlan test etc. Professor Clements KC states clearly that if the test in not applied, the ICB is breaking the law. One of my main appeal points was that no account had been taken of the well managed needs principle which, again, I raised at the outset, the assessor saying that this would be dealt with later. It never was before she shut down the meeting. So that matter was one of my major procedural appeal points in suggesting that the DST was an unreliable document which had no veracity.
I shall now have to appeal to an NHS independent panel but I do not expect any better from them.
I think that the takeaways from my experience are that applicants should try to obtain an assurance from the assessors at the outset that they will be heard on matters which they wish to raise before their involvement in the DST is terminated i.e before the actual recommendation decision takes place. These would be not only factual matters from medical records and the care home, for instance, but also argument At least that will give grounds for appeal should promises not be kept or assurances ignored, as in my case.
My other takeaway from the procedure -having spent 2 or 300 hours researching CHC over the past 2+ years – is that, to put it plainly, the DST is a con trick, which allows assessors both at the MDT and appeal stages to subjectively assess whatever evidence is provided and therefore come to whatever conclusion they choose. The only way to counter this subjectivity, no matter what good evidence you are able to adduce, is to give your own opinion as to what the outcome should be and the reasons for it. As has been said many times, the introduction of the Framework and the DST has introduced significant new hurdles to be overcome over and above the legal requirements, These are not enshrined in law.
Unfortunately, the newer ICB CHC are still “moving the goalposts” and failing to properly follow the National Framework; and failing to follow the DST guidelines.
Their actions are causing great physical and emotional harm to those who meet the criteria, but who cannot afford to self fund. As well as emotional and financial stress to those who are forced to pay for care needlessly.
It shouldn’t be up to us to bring legal challenges for clear care and support needs. This too is emotionally stressful.
Imagine being the sole carer, with no support, AND having to go through formal complaints, Ombudsman and High Court to get the proper ruling.
Why is the Health Minister not acting on our behalf?
unfortunately many families are finding they are now caught up in serious legal proceedings as they dared to fight back. this not only puts stress and anxiety on the person at the centre of this but also the representatives come under attack. Many emboldened ICB are using the legal process with a big stick against us to get their own way as we cannot afford to pay the legal fees this entails and theirs if we lose and they will try any dirty trick to ensure you lose