Green, R (on the application of) v South West Strategic Health Authority

Eligibility criteria for continuing NHS healthcare must be read as a whole and in the context of applicable supplementary guidance. Criteria are lawful where, taken together, they direct the decision-maker to apply the Primary Health Care Needs Test and do not deflect the decision-maker from it.

The test requires consideration of the totality of the individual’s relevant care needs and whether the primary need is a health need. Criteria may assist that assessment by directing attention to factors such as complexity, intensity, unpredictability and the relative significance of health and personal-care needs. A formal comparison is permissible, provided the statutory test remains the governing question.

The claimant, a patient with Alzheimer’s disease, challenged the defendant Strategic Health Authority’s decision on review that she was entitled to continuing NHS healthcare for only part of the relevant period. She alleged that the eligibility criteria applied by the review panel were unlawful because they failed properly to reflect R v North and East Devon Health Authority, ex parte Coughlan and R (Maureen Grogan) v Bexley NHS Care Trust.

The defendant accepted that the published criteria had been applied, but maintained that they were lawful when read with supplementary guidance issued after Grogan. The central issue was whether the criteria, and their application by the review panel, unlawfully displaced the Primary Health Care Needs Test.

1. Claim dismissed. The published eligibility criteria were lawful when read as a whole and together with the supplementary guidance.
2. The statutory framework and R v North and East Devon Health Authority, ex parte Coughlan require the decision-maker to apply the Primary Health Care Needs Test. The decision-maker must consider the totality of the relevant care needs and ask whether the primary need is a health need. Health services which are more than incidental or ancillary to accommodation, or beyond what a social-services authority could reasonably provide, fall to the NHS.
3. The criteria’s references to complexity, intensity, unpredictability, supervision and the relative significance of health needs were tools assisting that assessment. They were not freestanding tests. The supplementary guidance expressly identified the Primary Health Care Needs Test, its content and its relevance to condition 5. Properly interpreted, the criteria did not require a different or unlawful approach.
4. The case was distinguishable from R (Maureen Grogan) v Bexley NHS Care Trust, where the criteria failed to identify the applicable Primary Health Care Needs Test or provide effective guidance for applying it. The additional guidance in the present case supplied that necessary context.
5. The review panel’s consideration of health and social needs did not establish a formalistic misapplication of the test. Evidence from the panel chair explaining how illustrative lists had been compiled and used was admissible under the principles in R v Westminster City Council ex parte Ermakov and R (Leung) v The Imperial College of Science, Technology and Medicine. It elucidated the decision rather than contradicting or fundamentally altering it.
6. There was no sufficient basis for concluding that the review panel or the defendant had departed unlawfully from the Primary Health Care Needs Test.