Dennison, R (on the application of) v Bradford Districts Clinical Commissioning Group

Under the retrospective continuing healthcare review process, a health body must conduct a sufficient sift of earlier assessments. The sift need not become a full merits review, but it must establish whether the assessment was completed appropriately, was clinically sound, reflected the information then known and related to the relevant period. Registered nursing care assessments must follow consideration of eligibility for NHS continuing healthcare. If the records show the reverse sequence, a further review is required. A decision-maker must address the documentary evidence and cannot rely on speculation or standard practice. Judicial review remains appropriate where the issue concerns the interpretation and scope of national guidance.

The claimant, acting for the estate of Lily Dennison, challenged the defendant clinical commissioning group’s refusal to undertake a retrospective assessment of her eligibility for NHS continuing healthcare. The defendant agreed to assess the period from January 2006 to May 2007 but refused to assess the period thereafter because Mrs Dennison had undergone earlier nursing-care assessments.

The claim concerned the proper interpretation of paragraph 4.1.6 of the NHS Continuing Healthcare Review Process, particularly whether the earlier assessments were sufficiently sound and whether registered nursing care had been assessed before continuing healthcare eligibility. The court also considered the period after March 2008 and whether an alternative remedy before the Parliamentary and Health Service Ombudsman should prevent relief.

1. May and September 2007 assessments. Paragraph 4.1.6 required a sift rather than a full reassessment. The sift nevertheless required qualitative consideration of whether the earlier checklist was completed appropriately and was clinically sound. The decision-maker was not entitled to treat the exercise as a purely formal check. ([2014] EWHC 2552 (Admin), paras 6, 10–12.)
2. Sequential assessments. The process required eligibility for NHS continuing healthcare to be considered before registered nursing care contributions. This reflected R (Grogan) v Bexley Health Trust [2006] EWHC 44 (Admin). If the records showed that the registered nursing care assessment came first, a retrospective review was required; failure to conduct one would be unlawful. ([2014] EWHC 2552 (Admin), paras 7, 12.)
3. The May 2007 records disclosed an inadequately explained rationale, a perfunctory and apparently contradictory checklist, and clear evidence that the continuing healthcare checklist was signed after the registered nursing care determination. A reasonable decision-maker would therefore have accepted that a review was required. The September 2007 decision was also unlawful because it failed to follow the applicable policy, which required the screening tool for registered nursing care reviews. ([2014] EWHC 2552 (Admin), paras 12–13.)
4. The March 2008 assessment was different. The decision-maker was entitled to rely on the completed checklist and rationale, and no documentary feature triggered a further review. Care after that assessment was not a previously un-assessed period merely because a later retrospective assessment had been requested. ([2014] EWHC 2552 (Admin), paras 14–16.)
5. The existence of a possible Ombudsman complaint did not justify withholding relief. The claim raised the proper interpretation of national guidance, which was appropriately determined by judicial review. The defendant’s decisions were quashed for the period 7 May 2007 to 13 March 2008, but not for the period 13 March 2008 to 13 October 2008. ([2014] EWHC 2552 (Admin), paras 17–20.)