High Court dismisses challenge to NHS Continuing Health Care provision

In the recent case of R (Simpson) v NHS Mid and South Essex Integrated Care Board [2024] EWHC 3063 (Admin), the High Court dismissed a judicial review challenge concerning the legal adequacy of NHS Continuing Health Care (NHS CHC) provision. Samuel Lindsay and Melissa Spurling of Mills & Reeve represented the successful defendant, while Lee Parkhill of Cornerstone acted as counsel.

The judgment, delivered on 6 December 2024, offers valuable insights into the Administrative Court’s approach to evaluative decisions made by NHS bodies when assessing health and care needs.

Background 

The claimant, a 35-year-old lady with complex medical conditions residing in a one-bedroom flat, was eligible for NHS CHC. She had exercised her right to receive NHS CHC in the form of an NHS personal health budget (PHB); that is, money paid by the ICB into a bank account for her to use to arrange her own care and support. A condition of a PHB is that funds must be used in accordance with an agreed care and support plan.

In September 2023, an annual review of the Claimant’s NHS CHC needs was commenced. The outcome of the review was disputed.

On 12 April 2024, following a further period of review, the ICB confirmed it had assessed the claimant as having a need for NHS CHC provision in the form of 24 hour 2:1 carer support and a full-time clinical care coordinator who is a qualified nurse. A care plan was produced, and a PHB calculated, on that basis. The ICB also confirmed that it had not assessed the claimant as requiring NHS CHC funding for: 

1. 24 hour 1:1 nursing care in the community
2. a personal assistant, in addition to a full-time clinical case manager
3. office space
4. massage therapy
5. slidesheets
6. a privately procured wheelchair
7. travel and hotel costs for hospital appointments

As a result of its decision the ICB declined to increase the claimant’s NHS CHC budget to cover this further provision.

The challenge 

The claimant challenged the ICB’s decision not to fund the further provision on the basis that it was irrational and/or based on a defective assessment.

The case went to a rolled-up hearing at the Royal Courts of Justice on 14 November 2024. Mr Justice Fordham granted permission, but went on to dismiss the claim in full, concluding that the ICB’s decision-making was lawful and reasonable [see para 40 of the judgment]. The Claimant’s subsequent application for permission to appeal was also refused [see para 42 of the judgment].

The judgment

Mr Justice Fordham’s judgment includes a concise summary of the law of NHS CHC and NHS-funded direct payments. It also confirms (paragraph 15 of the judgment) the key principles of public law that the Administrative Court will apply during a review of NHS CHC: 

1. Evaluative judgments: the ICB is the primary decision-making authority and the High Court’s role is to review the reasonableness of the decisions, not to substitute its own judgment. 
2. Reasonableness: in doing so, the Court examines whether the outcome is within the range of reasonable responses, whether the reasoning process involves any errors, and whether there was sufficient enquiry.
3. Document interpretation: needs assessments and care plans must be read with an understanding of their nature and function, avoiding over-zealous or legalistic examination.
4. Judicial respect for primary decision-maker: though the intensity of the review is high and the scrutiny close, the Court must respect the functional distance between primary decisionmaker and the reviewing Court, recognising the risk of judicial blind-spots.

Further observations

This approach - intense scrutiny applied with respect for the primacy of the original decision-maker - is evident in the judgment. Practitioners in the field of complex community care will benefit from reading the full judgment. For those short on time, the following observations are particularly relevant:

1. In addition to making enquiries of professionals and reviewing clinical records, the ICB had provided the claimant with the opportunity to provide it with further evidence in support of her case and it had regard to the claimant’s submissions during the review informing the 12 April decision.
2. The ICB’s decision-making was consistent with the evidence before it and the Court.
3. Although noting that “facilities” for “care” could in principle involve an ICB paying for accommodation, if that were assessed as reasonably required for making provision to meet relevant needs and an appropriate part of the health service, Mr Justice Fordham was “unable to characterise as unreasonable” the ICB’s failure or refusal to accept that the claimant’s home was insufficient space for the delivery of services such that it had the responsibility to pay for office space; still less any failure or refusal to accept that office space is accommodation appropriate as part of the health service [see para 28 of the judgment].  
4. The ICB’s decision to decline funding for massage therapy was consistent with clinical advice from a consultant dermatologist and so was reasonable despite the claimant submitting that massage therapy was of therapeutic benefit [see para 30 of the judgment]. 
5. The ICB’s policy, that a PHB should not generally be used to pay for provision available through existing NHS services was lawful and reasonably applied. It was not, therefore, unreasonable for the ICB to require that the claimant access NHS funding for a wheelchair through NHS Wheelchair Services [see para 34 of the judgment] and obtain slide sheets through NHS occupational therapy services [see para 32 of the judgment].   
6. It was “impossible” to characterise the ICB’s decision not to fund hotel accommodation for hospital appointments as unreasonable. The ICB decision that travel costs were covered by disability benefits with the safety net of NHS transport schemes was reasonable, despite the difficulties the Claimant sometimes faced in using these schemes. Fordham J noted the opportunity for travel needs to be reviewed in future [see para 36 of the judgment].    

This case highlights the complexities involved in NHS CHC provision and the importance of thorough, reasonable decision-making. The judgment reinforces the need for ICBs to conduct comprehensive assessments, make transparent decisions, and ensure legal compliance in their processes. However, it also serves to affirm for ICBs that properly informed, reasonable decisions about NHS CHC assessment and provision will be respected by the Court.

For more information about this case or to discuss similar issues please contact Samuel Lindsay.

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