Judicial confirmation that a CCG has no legal power to fund a continuing care patient for whom it has or had no statutory responsibility

In a judgment that will have significant implications for many NHS commissioners, Mr Justice Garnham has decided that a CCG had no power to fund NHS Continuing Healthcare (CHC) services for a patient because they had ceased to be registered with a GP in the CCG’s area a few days before the completion of the CHC decision-making process. That meant that the CCG could not fund services for the patient, despite having assessed him as eligible for CHC and, having promised a local authority that it would fund services for him.

This unfortunate but salutary series of events started when a learning disability patient was placed in a CCG’s area by a local authority. 

In 2013 the council asked the CCG to undertake a CHC assessment. The assessment process started but, before it was completed, the council moved the patient to a new placement outside the CCG’s area. The patient changed their GP registration soon after the move. That change of GP occurred before the CCG took any decision whether the patient was eligible for CHC. Not appreciating the legal effect of the change of GP, the CCG decided the patient was eligible for CHC and promised to fund the new placement.

After three years, the CCG were advised that the National Health Service Act 2006 (NHS Act 2006) and the 2012 Regulations meant that it had no NHS commissioning responsibility for the patient at the date that the CHC eligibility decision was made and, they therefore had no legal vires to fund services for the patient.

Despite attempts being made to settle the matter before proceedings were served, the CCG were taken to court by the council. Mr Justice Garnham ruled that the CCG’s interpretation of the legislation were correct and they had no vires to fund the patient’s care. 

Three key takeaways

• CCGs can only use their funds for patients for whom they have NHS commissioning responsibility under the NHS Act 2006 and Regulations made under that Act.
• Once a CCG loses responsibility for a patient due to a change of GP registration, the placing rules do not revive a CCG’s responsibility for the patient, even if the move took place during the CHC assessment and decision-making process.
• A CCG cannot acquire vires to fund a patient because it mistakenly promised to do so, as promises by public bodies cannot expand a public body’s legal powers.

We will update readers once the judgment is available. 

However, in the meantime, CCGs need to be mindful of the need to establish clearly that they have NHS commissioning responsibility under the NHS Act 2006 and Regulations before using CCG funds to pay for services for such a person.

The responsible commissioner rules under the NHS Act are hugely complex; do get in touch with Dawn Brathwaite or Katrina McCrory if you require advice.