Gossip, R (on the application of) v NHS Surrey Downs Clinical Commissioning Group

A judicial review of an NHS continuing healthcare decision should ordinarily target the final review decision where that process reconsidered the substance of the eligibility dispute and provided an adequate opportunity to challenge the earlier decision. The National Framework must be taken into account, but it is guidance rather than a binding statutory code. The CCG remains the statutory decision-maker and must use the completed decision support tool to inform its decision; it need not treat the multidisciplinary team’s recommendation as binding unless the Regulations require that result. A procedural breach may nevertheless produce no remedy where it is highly likely that the outcome would not have been substantially different.

The claimant, who had tetraplegia and complex care needs, challenged the defendant CCG’s decision of 29 March 2017 that he was not eligible for NHS continuing healthcare. An earlier multidisciplinary team had recommended eligibility, but the CCG later obtained further evidence and made a fresh decision. The claimant appealed through the NHS review process, and an Independent Review Panel upheld the decision on 6 July 2018.

The claim challenged the assessment process, the treatment of the multidisciplinary team’s decision support tool, consultation with the local authority, the constitution of the eligibility panel and the application of the statutory primary health need test. The central issues included whether the claim targeted the correct decision, whether the National Framework was legally binding, and whether any procedural defects justified relief.

1. The claim was refused. The proper target was the Independent Review Panel’s decision, not the earlier CCG decision. The review was a full and careful reconsideration of the evidence and submissions, and the statutory scheme required the CCG to implement the review panel’s decision unless exceptional reasons existed. Any earlier procedural or substantive error was therefore capable of being cured by that review.
2. The National Framework was guidance which the CCG was required to take into account under regulation 21(12), but it was not a direction or binding statutory code. The CCG was susceptible to public law challenge if it ignored, misconstrued or misapplied the Framework. It had not created an enforceable legitimate expectation that every decision would comply with the Framework.
3. The Regulations made the CCG the ultimate decision-maker. It was lawful to obtain professional quality-assurance input before a panel considered the decision support tool. The assessor had not replaced the multidisciplinary team or made the eligibility decision. The panel’s decision was sufficiently informed by the completed tool, including the recorded disagreement between members of the team.
4. The Regulations did not require a panel to identify exceptional circumstances before reaching a conclusion different from the multidisciplinary team’s recommendation. The phrase in the October 2015 record stating that there was no supporting evidence was misguided, because evidence did exist, but that defect lacked materiality in relation to the later decision under challenge.
5. The CCG was not unlawful in obtaining a new multidisciplinary assessment, communicating the earlier decision late, or failing to refer the matter back to the same team. The primary health need test required consideration of needs in their totality. An element of nursing or healthcare need did not automatically establish a primary health need.
6. The CCG had breached its own policy by failing to convene a joint NHS and social care panel. However, under section 31(2A) of the Senior Courts Act 1981, it was highly likely that the outcome would not have been substantially different. In any event, the maximum appropriate relief would have been a quashing order, not an order declaring past entitlement to continuing healthcare.

The judgment was a first-instance decision. The claimant had previously appealed the CCG decision through the NHS review process, culminating in an Independent Review Panel decision dated 6 July 2018, but that decision was not itself challenged as the target of the judicial review.