Court of Appeal in Northern Ireland Decisions

2.      Parties and Remedies

(a)        A declaration that the Department had irrationally (and, hence, unlawfully) failed to provide guidance to the five Northern Ireland Health and Social Care Trusts ("HSCTs") in determining eligibility for continuing CHC under the 2010 policy. 

"A basic summary of the position as set out above may be said to be as follows: (1) the Department or Trusts may charge a service user for social care services, although they are not obliged to; except that (2) they are obliged to charge a service user for accommodation provided by way of social care (subject to the user's means); provided always that (3) they cannot charge in that way for any nursing care provided by a registered nurse."

We shall revisit this summary infra: see especially paras [111] - [112] (and see also para [47]).

"... has been developed and validated, primarily in relation to assessing the needs of older people ...  [It] supports the exercise of professional judgement in the care management process and the earliest possible provision of safe and effective health and social care ...

It is structured in component parts and using domains which will be completed according to the level of health and social care needs experienced from non-complex to complex."

The passages which follow draw attention to the broad range of health care professionals and social care professionals expected to be involved in the utilisation of NISAT for health care and social care assessments. Forthcoming NISAT training is also noted. In passing, this mechanism coexists with the National Nursing Assessment Tool (NNAT).

"Similarly, the distinction between health and social care needs is complex and requires a careful appraisal of each individual's needs.  In this context, it is for clinicians, together with other health and social care professional colleagues and in consultation with the service user, his/her family and carers, to determine through a comprehensive assessment of need whether an individual's primary need is for healthcare or for personal social services.  In the latter case the service user may be required to pay a means tested contribution."

Notably, the terminology "primary need" is not the language of any of the statutory provisions under scrutiny.  It derives, rather, from the 2010 CHC policy.

"63.     The Health and Personal Social Services (Northern Ireland) Order 1972 requires that a person is charged for personal social services provided in residential care or nursing home accommodation arranged by a HSC Trust.   There is no such requirement, or authority, to charge for healthcare provided in the community, either in the service user's own home or in a residential care or nursing home.  Consequently, all references to financial assessment and charging hereafter apply to the provision of personal social services in residential care or nursing home accommodation.

64.       A financial assessment should only commence after an assessment of the service user's health and social care needs has been completed.  The financial circumstances of individuals should never be used as the reason for failing to offer assessment of need or, as appropriate, access to the care management process."

[emphasis in original]

Paragraph 17 must be juxtaposed with paragraph 88:

"When contracting with homes, HSC Trusts should contract for the full cost of the placement, and, where there had not been a determination of continuing healthcare need, seek reimbursement under the 1993 Regulations.  Residents can, however, seek the agreement of both the HSC Trust and the home to pay their assessed contribution directly to the home..."

"In England, NHS Continuing Healthcare is the name given to a package of care which is arranged and funded solely by the NHS for individuals outside of hospital who have ongoing health needs ...

In Wales, Continuing NHS Healthcare is a package of care provided by the NHS for those individuals with complex and primarily health-based needs."

The absence of any mention of social care in these passages reflects the differences between the regimes in the two jurisdictions highlighted above. The evidence amassed before this court indicates that the concept of "continuing health care" exists in the jurisdiction of England and Wales. However, as the foregoing resume demonstrates, caution is required in any purported comparison between the two jurisdictions.

5.   From 2010 to 2021 

(a)               To begin with, it contains three case studies relating to the provision of CHC to three people resident in other jurisdictions in GB where different legislation and policies apply.

(b)              It compares data from the two jurisdictions without any consideration of their fundamentally different populations (that of NI being circa 2% that of England and Wales).

(c)               There are but two NI case illustrations. In both, the person concerned had to fund their care in a nursing home. In the first case it is asserted that if the person had lived in Great Britain they would have been eligible for fully funded NHS Continuing Healthcare.  This resolves to bare, unreasoned and unparticularised assertion.

(d)              In the second case illustration, there is again a bare, unreasoned and unparticularised assertion that if the relevant HSC Trust had properly applied paragraph 88 of the 2010 Circular the subject would have qualified for CHC.

(e)               There is no mention of the NISAT or the NNAT in the context of either case illustration.

(f)                The NISAT receives but one brief reference in the report, accompanied by the statement that it does not refer to CHC. This is plainly erroneous, as the terms of the CHC policy, which gives prominence to NISAT, confirm.  

(a)               The Western HSC Trust response was that CHC operates only in England/Wales and Scotland. This response, which betrayed a fundamental misapprehension, made no mention of Circular 1/2010 and was based on demonstrably fallacious advice ("... We have been advised that ..."). Furthermore, this response made no mention of something obviously material and ascertainable from other parts of the evidence, namely the existence of a relevant policy operated individually by this Trust.

(b)              The Northern HSC Trust response was that since 2006 it had assessed 14 people as eligible for CHC. This response specifically referenced the 2010 Circular.

(c)               So too did the Belfast HSC Trust response, which further indicated that there was no systematic collation of individual cases assessed as eligible for CHC since 2006.

(d)              The South-Eastern HSC Trust confirmed in its response that it has been operating the 2010 Circular and further disclosed an appreciation of the inapplicability of the English National Framework (supra).  It confirmed the number of cases in which CHC eligibility had been established.

(e)               The Southern SHC Trust also based its response on the 2010 Circular. This Trust stated that placements in nursing homes and residential homes were made in accordance therewith.

["the absence" is clearly to be construed as "in the absence".]

This is yet another illustration of purely subjective, unparticularised and unsubstantiated belief.

"... developments across GB that should have had a direct bearing on Northern Ireland appear to have made no impact on the provision of health and social care in Northern Ireland."

This statement manifestly fails to recognise that, as demonstrated in Chapters 1 and 5 above, by virtue of devolution (since partition) Northern Ireland has had entirely separate legislative arrangements and associated policies governing the provision of healthcare and social care. In the passages which follow it is stated that CHC is provided by only two of the five HSC Trusts in Northern Ireland. This is fallacious as one of the suggested non-providers, Belfast HSC Trust, did not provide a response to this effect. This misstatement is one of the ingredients in what the report describes as "a confusing picture". Many of the others suffer from the frailties exposed in the analysis in the immediately preceding paragraphs. The suggestion of "a lack of a clear and consistent framework" is in the estimation of this court unsustainable in consequence.

"... draft and publish guidance on NHS Continuing Healthcare in Northern Ireland to provide clarity and to require collation and monitoring of data in a standardised way."

The Department reacted by arranging a meeting with Age NI personnel. This was followed by a circular letter to all HSCTs.  The process thus initiated was described as:

"... an exercise to re-examine the broader issue of continuing healthcare and specifically the need to develop further NI guidance."

Circular 2010 was attached to the letter, together with a questionnaire designed to identify "... current practice on continuing health care across each of the HSC Trusts". A so - called "scoping exercise" ensued.

"It is the responsibility of HSC Trusts to ensure that appropriate assessments of needs for individuals are carried out, including those with continuing healthcare needs ....

As you will be aware, within the integrated system in Northern Ireland, it is clinicians, together with other health and social are professionals, who are responsible for assessing the needs of the individual and for making decisions about appropriate long- term care. This is done in consultation with the client, the client's family and their carers.  At a minimum, a formal review of a client's care needs should take place once a year. More frequent reviews may be required in response to changing circumstances or at the request of service users or other persons including carer."

(a)        BHSCT stated that it "... does not consider the concept of 'continuing healthcare' relevant or easily definable within an integrated health and social care system. The term continuing healthcare is not referenced within the care management circular and pertains to GB ...." The use of both the NISAT and NNAT in multi-disciplinary assessments to determine the long care needs of persons with complex needs was confirmed.  Furthermore "... BHSCT does not use specific policies/protocols or guidance to determine whether an individual's primary need is healthcare or for personal social care sources. These needs are indivisible and the central responsibility of the multi-disciplinary team is to ensure those needs are met."  In response to two later questions, BHSCT confirmed that it was making CHC decisions and that it had CHC eligible cases, which were reviewed on a daily or weekly basis. Replying to a further question, BHSCT stated unambiguously that it was following the 2010 CHC policy. Replying to yet another question, this Trust stated that the concept of "continuing healthcare .... does not apply in an NI setting".

(b)       NHSCT described "... difficulty in determining eligibility due to lack of detailed guidance that goes beyond statements in the 2010 Circular. The absence of specific criteria and guidance results in confusion for assessors, clients and relatives ..." This response further disclosed that this Trust had, since 2010, been applying its own guidance. This internal document is dated 20 July 2010 (notably, postdating the Department 2010 Circular by some four months).  It addresses the concept of "Continuing healthcare needs" ("CHCN"). It enunciates the general rule "CHCN can only apply where the service user's needs would normally have been met in a hospital environment and they require 1:1 supervision/interventions from a specifically trained Healthcare Professional". According to this guidance, the consequence of a positive CHCN assessment is that the recipient would not have to make any financial contribution. The text makes unequivocally clear that it is based on English case law and the English National Framework. The NHSCT response to the Department questionnaire further states that this Trust's specific guidance ".... was not widely issued but has been referenced when dealing with retrospective requests for consideration for eligibility for CHCN".  In a later response, this Trust stated that it was "... following the approach set out in [the 2010 Circular]".  This Trust further indicated that in April 2011 - September 2014 it had assessed 11 persons as eligible for CHC under the 2010 Circular.

(c)        The SHSCT response demonstrated a correct understanding of the concept of CHC and a clear awareness of paragraph 17 of the 2010 Circular.  The use of the NISAT and/or the NNAT was also recorded. This Trust further indicated that it "... would welcome definitive DHSS PSNI policy in relation to ......." CHC eligibility assessments.  In a later response this Trust stated unequivocally that it was "... following the approach set out in ...." the 2010 Circular. This response specifically recognised that CHC placements could be in hospital, in a residential home or in a nursing home. Regarding the relevant three-year period, while there had been 24 requests for CHC assessments none of the persons concerned had been "... assessed as either eligible or ineligible for continuing healthcare within a continuing care placement, all of them having been transferred from hospital to a placement of this kind".

(d)       The SEHSCT response also rehearsed correctly paragraph 17 of the Circular. This Trust further stated that it had received an unspecified number of requests for what it described as "continuing healthcare funding", each of these cases relating to residential or nursing home placements, "with the majority being self-funding" and most requests having been retrospective in nature. Continuing, it indicated that decision making on the application of the paragraph 17 criterion had been "extremely difficult" in the absence of "clear policy direction", giving rise to an effective moratorium while awaiting "regional guidance". Furthermore, this Trust mentioned, without elaboration "a number of legal challenges" and two cases ".... currently with the Ombudsman". There are two further noteworthy features of this Trust's response. First, it stated without equivocation that it was acting in compliance with the 2010 Circular. Second, it disclosed that it had adopted with some amendments the NHSCT internal guidance (supra) "... to provide similar guidance for multi-professional panels assessing eligibility for Continuing Healthcare".

(e)        WHSCT responded that it was applying Circular 1/2010, using the NISAT and involving a multi-disciplinary team in each case. The merits of NISAT were emphasised. This Trust also provided data indicating that 15 positive CHC decisions had been made between April 2013 and September 2014.

"... the Department found there to be an apparent lack of understanding across a range of groups and inconsistent application of departmental guidance and continuing health care practice across HSC Trusts."

In its ensuing consultation paper, the Department specifically acknowledged "... the need for further clarity and revision to the local continuing health care policy ..."  One aim was an outcome "... which ensures that there is a transparent and fair system in place for all service users". In the consultation paper which followed, in June 2017, one finds the following salient passage in the introductory paragraphs:

                        "What is continuing health care? .....

Continuing health care, which is for adults, is the term used for the practice of the health service meeting the cost of any social care need which is driven primarily by a health need."

 [43]     In the same passage there is a statement of some materiality:

"Eligibility for continuing health care depends on an individual's assessed needs and not on a particular disease, diagnosis or condition.  If an individual's needs change, then their eligibility for continuing health care may also change.  So as not to interfere with professional and clinical judgment, the Department has, to date, refrained from drafting administrative guidance on a specific continuing health care assessment."  [emphasis added]

The contrast between the bespoke, unique Northern Ireland system and its English counterpart is then noted, with particular reference to the concept of "NHS continuing health care" in that jurisdiction. 

"There is confusion about continuing health care and its applicability in Northern Ireland.  Specifically, there is a lack of understanding that the Check List Tool and Decision Making Tool used by authorities in England to assess and determine eligibility for continuing health care do not apply here and are not part of our existing assessment process."

Variances in the practices of individual HSC trusts were further noted, as were the tribulations of the multi-disciplinary panels established by the Trusts to make the requisite determinations. It was further recorded that all Trusts were employing the NISAT and, where required, the NNAT.  It is stated that 43 persons had been assessed as eligible for continuing health care in Northern Ireland. Pausing, taking into account the inevitability that each would have received a mixed package of health care provision and social care provision in a public accommodation setting, this meant that the social care element was being provided at no cost to the recipient.

"The outcome of the review has provided the Department with sufficient evidence that further clarity and revision to the local continuing health care policy is now required.  In undertaking any steps to revise the current continuing health care policy, the Department is seeking to achieve an outcome which ensures that there is a transparent and fair system in place for all individuals who may or may not have a continuing health care need." 

[emphasis in original]

The phenomenon of "well documented increasing financial pressures on the wider health and social care system" is then noted. 

"Can your care needs be properly met in any other setting other than a hospital?"

Option 3 was said to be similar to the arrangements introduced in Scotland in 2015. The adoption of Option 3 as the new CHC policy in Northern Ireland would mean the following: if the person concerned were discharged to either a residential care home or a nursing home they would be fully responsible for their social care costs. It is appropriate to emphasise the following: the difference between Option 3 and the policy enshrined in paragraph 17 of Circular 2010 is that pursuant to the latter mechanism a person would not have to pay for their social care costs provided that their primary need was for health care. Paragraphs 32 - 34 of the consultation paper explained the proposed charging arrangements:

"32. If the individual required placement in a residential care home, then they would be subject to the same charging policy as other residents and would contribute to the cost of their care depending on their financial circumstances.

33. If the individual required placement in a nursing home, then they would be subject to the same charging policy as other residents and would contribute to their accommodation and personal care costs depending on their financial circumstances.  HSC Trusts would still remain responsible for meeting the cost of providing nursing care to the individual in the nursing home.  This payment, which is currently set at £100 per week, would be paid directly by the relevant NHS Trust to the care provider.

34. For an individual discharged to return to their own home, they would if required, receive relevant support through a domiciliary care package which is not a chargeable service in Northern Ireland."

"... all individuals needing to avail of residential or nursing home care services would be subject to the same charging regime."

In its consultation paper, the Department expressed its view that this would provide a "clear and easily understood test" which would "... ensure regional consistency in continuing health care outcomes across HSC Trusts, importantly addressing any existing inequality issues for individuals".  The Department further reasoned that this option would "create a fairer system where all individuals needing to avail of residential or nursing home care services would be subject to the same charging regime".  The views of consultees were sought accordingly.  The Department emphasised that it was consulting with an open mind.

"It is now clear that only healthcare needs of a level of severity requiring hospitalisation will be covered by CHC.  Healthcare needs which do not require hospitalisation will not be covered by CHC.  In short, the previous facility for CHC funding of accommodation costs in a nursing home or residential care home has been brought to an end."

In passing, the evidence indicates that the hiatus of some three years dating from September 2017 was attributable to the absence of a functioning government and legislature in Northern Ireland. This delay has formed no part of the Commissioner's challenge.

"Can your care needs be properly met in any other setting other than a hospital? If the answer is "yes", then the individual will be discharged to the appropriate care setting and depending on the type of care package be subject to the relevant charging policy."

Any undetermined applications for "continuing health care" predating 11 February 2021 were to be assessed in accordance with the unamended provisions of Circular 1/2010.

"Where an individual's needs are deemed to require personal social care services an appropriate clinical pathway is recommended ...

[The Trust] does not place patients with continuing healthcare needs in nursing homes as these facilities would not be able to meet their clinical needs ... the Trust also does not provide continuing healthcare assessments for the purposes of abatement of nursing home fees .... 

The Trust is struggling with this issue in the absence of an appropriate framework and operational guidance in relation to continuing healthcare ....

The issue of continuing healthcare within Northern Ireland has been recognised by the Department of Health to require further policy clarification."

"I accept that this sample of cases shows that there is a degree of widespread concern among older people who wish to avail of CHC and contend that they should be considered eligible for it; and that there is evidence to suggest systemic issues about its operation over the last number of decades."

This analysis does not co-exist comfortably with this court's outline of the seven cases in paras [56] - [57] above. Secondly, it does not engage with the issues raised in this court's observations immediately above. Thirdly, it entails something of a gloss as it fails to recognise the variations among the several cases.  Finally, there is no acknowledgement of the incontrovertible fact that the seventh of the cases had nothing whatsoever to do with the issues before the court and could not, therefore, contribute to the general conclusion in para [103].

"The failure of the proposed Respondents to issue guidance on the operation of the 2010 Policy is so unreasonable that no reasonable decision maker properly directing itself in relation to its duties could justify its application in the absence of such guidance."

In compliance with this court's direction a further incarnation of the amended Order 53 Statement was provided in consequence and the amendments were authorised.

".. acted unlawfully in failing to provide guidance to Health and Social Care Trusts as to the methodology to be applied in determining eligibility for ... CHC under [the 2010 Circular]."

In enunciating the determination of the court to grant this relief - in para [182] - the judge stated his conclusion that the Department had "... acted unlawfully (for the reasons given at paras [138] - [141] above)."  These passages are contained in a section of the judgment entitled "the Department's Responsibility for the Lack of Clear Guidance". At para [136] the judge states:

"The level of information and guidance provided by the Department in relation to CHC was minimal.  There is evidence to suggest that some individuals may have qualified for CHC under the 2010 Policy but were either completely unaware of the concept or availability of CHC or, perhaps worse, were misinformed that it did not exist in this jurisdiction.  The Belfast Trust's 2015 review response indicated that no requests for CHC assessments had been received between 1 April 2011 to 30 September 2014.  Given the size of the Trust's area of responsibility and the population within that area, this seems surprising."

"Much of the 2010 Circular is irrelevant for present purposes. Key provisions relating to the subject matter of these proceedings are paras 17, 63-64 and 88.  Para 17 of the 2010 Circular - which first mentions the "primary need" test - is in the following terms:

'Similarly, the distinction between health and social care needs is complex and requires a careful appraisal of each individual's needs.  In this context, it is for clinicians, together with other health and social care professional colleagues and in consultation with the service user, his/her family and carers, to determine through a comprehensive assessment of need whether an individual's primary need is for healthcare or for personal social services.  In the latter case the service user may be required to pay a means tested contribution.' "

The judge digested this provision in his own words, at para [26]:

"Albeit in somewhat opaque terms, para 17 of the 2010 Circular is what effectively sets out the 2010 Policy as regards CHC.  A determination is to be made of whether the individual's primary need is for health care or social care.  In the latter case, the individual may be required to pay.  It is not expressly stated what the charging arrangements will be in the former case; but it may be thought to be implicit that, in that case, the service user will not be required to pay a means tested contribution.  That is supported by para 88 of the circular..."

"However, it would be unlawful to use NISAT as the sole or main tool for the purpose of determining CHC eligibility.  This is because it is simply not designed as a tool for the answering of the key question and does not, of itself, contain sufficient guidance to allow that question to be answered in a way which is fair and rational (in the sense of ensuring consistency within and between Trusts), having regard to the requirements of procedural fairness in this context."

Pausing, this statement is couched in conclusionary, rather than analytical, terms and, further, does not engage with the multi-disciplinary character of every CHC assessment. In this context, the judge recorded his anterior conclusion at para [116] that the impugned decision of the Trust, whereby the application of Mr McMinnis for CHC had been refused, was vitiated by a blend of procedural unfairness and irrationality on the ground that -

"... sufficient guidance had to be provided ... to enable Mr McMinnis, and others, to meaningfully engage with the detail of the process and whether he met the eligibility requirement for CHC."

"...... [it] would be to unfairly lay sole or primary responsibility at the door of the Trust when, in reality, the Department has been responsible for a plain dereliction in its duty in this sphere. The Trust's responses, in 2015, to the Department's own review were such as to show that there were huge problems with the administration and effectiveness of the 2010 policy ....

An overwhelming theme was that Trusts did not know how to address CHC or determine who was eligible for it. Remarkably, some Trusts .... went as far as to suggest that it did not apply in this jurisdiction."

"This failing was pleaded as an instance of irrationality as well as procedural unfairness and, indeed, I consider that it could properly be characterised as a course which no reasonable Department would adopt: to stand by and decline to issue guidance when, as a result of its own review, it became clear that Trusts, both internally and as between each other, were in an utter state of disarray and inconsistency in seeking to apply the 2010 policy ..."

This is followed by the key conclusion:

"I am satisfied that the Department's resolute failure to seek to ameliorate the situation by way of providing regional guidance was unreasonable in the Wednesbury sense.  There was no logical reason whatever why it would not seek to bring some clarity ....

When it adopted the 2021 policy, with the express aim ..... of introducing a fair and transparent system, it effectively accepted that it had permitted an unfair system which lacked transparency to pertain up to that point."

At para [140] the judge concluded, in substance, that the Department had acted in dereliction of its duties under section 2 of the 2009 Act. The remedy of the impugned declaration followed.

"Almost all of the problems of jurisprudence come down to a fundamental one of rule or discretion .... both are necessary elements in the administration of justice ... there has been a continual movement in legal history back and forth between wide discretion and strict detailed rule, between justice without law, as it were, and justice according to law."

(Introduction To The Philosophy Of Law, revised ed 1954.)

It has become commonplace for statutes to expressly confer discretions on public authorities. Furthermore, in some instances it is legitimate for a court to spell out of a given statutory regime the existence of a discretion by a process of construction and/or implication.  

"A major theme of the Department's submissions was that, in Northern Ireland we benefit from an integrated system of health and personal social care and that this therefore renders any comparison with the position in England and Wales limited.  The Department further submits that it was down to local Trusts to develop additional guidance on CHC and to ensure that appropriate assessments were undertaken, since the primary responsibility for such assessments rested with the clinicians.  It [the Department] operates at a strategic level and was not bound to descend into the detail of the application of the 2010 Policy."

In short, it was submitted that the Department's response to concerns about the 2010 Circular entailed the choice of opting for policy development and appropriate consultation and that, taking into account the context (as outlined above), this lay within the range of responses reasonably available to it.

(a)        "Health care" is concerned with securing the improvement in the physical and mental health of members of the population in Northern Ireland, which is linked to the prevention, diagnosis and treatment of illness; whereas  -

(b)       "Social care" is concerned with securing improvement in the "social wellbeing" of the same population.

"Services provided or secured by HSC Trusts towards adults who need extra support, either to live their lives as independently as possible, who are vulnerable or who may need protection. Examples of services include day care, domiciliary care, nursing and residential home care, equipment and adaptations and the provision of meals."

In its "Our Health, Our Care, Our Say" publication in 2006, social care was defined at para 1.29 as:

"The wide range of services designed to support people to maintain their independence, enable them to play a fuller part in society, protect them in vulnerable situations and manage complex relationships."

It is important to emphasise that neither of these passages is a statutory definition. Furthermore, neither purports to be couched in exhaustive terms. Both are contained in pure policy statements. Subject to these qualifications, we are satisfied that both passages are harmonious with the legislative framework.

"It is only if the guidance permits or encourages unlawful conduct in the provision of contraceptive services that it can be set aside as being the exercise of a statutory discretionary power in an unreasonable way."

The Supreme Court observed, at para [34]:

"Thus, Lord Scarman was explicit that it was not the role of policy guidance to eliminate all uncertainty regarding its application and all risk of legal errors by doctors. It was to be read objectively, having regard to the intended audience ...

The drafter of a policy statement is not required to imagine whether anyone might misread the policy and then to draft it to eliminate that risk. As Lord Scarman explained, it was only if the guidance, on a reasonable reading of it, positively encouraged a doctor to think that he was authorised to prescribe without the patient's consent whenever he thought fit that it would be unlawful."

At para [38] the court formulated the following test:

"... does the policy in question authorise or approve unlawful conduct by those to whom it is directed? ...

It is not a matter of rationality ...."

"... it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way. In this limited but important stance, public authorities have a general duty not to induce violations of the law by others."

At para [39] the court provided the following exposition of the modern function of policies:

10.       The Vires Issue

(i)                 Where the Department provides health care in a setting other than that of a hospital it has a discretionary power to recover from the individual recipient such charge as it considers appropriate: Article 7(2), 1972 Order.

(ii)              A HSC Trust providing social care services under Article 15 of the 1972 Order has a discretionary power to recover in respect of assistance, help or facilities provided such charges if any as the Trust considers appropriate: Article 15(4) 1972 Order.

(iii)            Where a person is in receipt of social care together with nursing or personal care in a registered residential care home or a registered nursing home, and where the payments made by the HSC Trust concerned to the home provider include any amount in respect of nursing care by a registered nurse, the individual beneficiary "shall refund" to the Trust the amount paid by the Trust to the home provider less the proportion thereof relating to the nursing care: Article 36(4), 1972 Order.

(iv)            Where the individual beneficiary for whom residential care or nursing accommodation is provided (or proposed to be provided) satisfies the HSC Trust that they are unable to refund fully the amount required by Article 36(4), the Trust shall assess the lower rate of the refund to be made by such person: Article 36(5).

(v)              Where social care accommodation is provided by a HSC Trust under Article 15, the Trust shall recover from such person the amount determined pursuant to the relevant statutory mechanism and regulations made thereunder: Article 99(1), 1972 Order.

"Similarly, the distinction between health and social care needs is complex and requires a careful appraisal of each individual's needs.  In this context, it is for clinicians, together with other health and social care professional colleagues and in consultation with the service user, his/her family and carers, to determine through a comprehensive assessment of need whether an individual's primary need is for healthcare or for personal social services.  In the latter case the service user may be required to pay a means tested contribution."

As already noted, "primary need" is a term devised by this policy, rather than a statutory term.

11.   The Gillick Principle: Conclusions

12.  The Impugned Quashing Order: The Section 75 Issue

"The screening exercise undertaken in this case, regrettably, did not begin to properly consider the true impact of the new policy on older people."

This may be linked with an earlier statement in the judgment at para [173]:

"I granted leave ............ on the basis that it was arguable that the breach in this case was so egregious as to fall into the exceptional category where the court would be prepared to consider the claim."

 [124]   In the consultation exercise noted above, the Commissioner contended that the adoption of Option 3 could have a greater adverse impact upon older people than any other age group in society as the ageing population in Northern Ireland was more likely to require assistance with health and social care needs, particularly in the nursing home setting and would also be more likely to have accumulated resources, such as a pension or a mortgage-free home.  Evidentially, this found support in the second of the Department's screening documents.  This recorded that as at June 2016 there were 12,368 residential and nursing care packages of which some 81% of the beneficiaries belonged to the Elderly Programme of Care. Furthermore, the ageing population trend was expected to continue. It was stated:

"Therefore, older people requiring residential or nursing home care may be impacted to a greater extent by the proposed revisions to the current policy."

It is in this context that the averments in the Department's affidavit (supra) must be evaluated.

"... The gravamen of the new policy [is] to remove any possibility of CHC funding where an individual [is] cared for in a non-hospital setting ...

When that consequence is understood, it can properly be said to be irrational in my view to characterise the effect on older people as being only minor and positive. For older people who would or might lose out on CHC eligibility, it would have very significant financial consequences which might lead to the loss of life savings or a family home."

The judge added at para [180]:

"The screening exercise undertaken in this case, regrettably, did not begin to properly consider the true impact of the new policy on older people."

"Properly viewed, the reasoning of the court at paras [176] - [179] focuses on the weight attached by the Department to the various issues that were under consideration ... the standard of review in respect of such issues is that of irrationality. The conclusion reached by the Department ...  fell within the range of reasonable conclusions and demonstrated compliance with the procedural duty contained within section 75."

"It believes that a public authority may have failed to comply with a [equality] scheme ..."

In such cases transmission of its report to the Secretary of State is obligatory. In addition, there is specific provision for further involvement of both the Secretary of State and the Northern Ireland Assembly in any case where a report recommends that the public authority concerned takes certain action and ECNI considers that this has not been effected within a reasonable time.  In such a case the Secretary of State is specifically empowered to give directions to the public authority.

13.  Section 75: The Standard of Review

"An order quashing the 2021 policy as it was in breach of the duty imposed upon the Department by section 75 of the Northern Ireland Act 1998 in that the preceding screening exercise "... did not begin to properly consider the true impact of the new policy on older people".

Summarising, in the context of the present case section 75 of the Northern Ireland Act obliged the Department, in developing the new 2021 CHC policy, to "have due regard to the need to promote equality of opportunity" between persons of different age. The Department, in performing this statutory duty, was obliged to act in compliance with its Schedule 9 equality scheme. Any failure by the Department to do so triggered the investigatory function of ECNI under para 10(1) of Schedule 9 upon receipt of a complaint to this effect. The Department's equality scheme contains arrangements for the screening of developing policies and the conduct of equality impact assessments where considered appropriate.  The Commissioner's complaint, properly analysed, is that the Department's screening exercise unlawfully failed to determine that an equality impact assessment was required. This in our estimation is properly viewed as a complaint that the Department failed to comply with its equality scheme.

14.  Time Barred? Order 53, Rule 4

"An application for leave to apply for judicial review shall be made [promptly and in any event] within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made."

(i)        The 2010 CHC policy contained in Circular HSC (ECCU) 1/2010 was ultra vires the Department's statutory powers insofar as it enabled certain people to receive social care in an accommodation setting free of charge, in conflict with the relevant statutory provisions.

(ii)       The Department was under no legal obligation to publish guidance relating to the 2010 (ultra vires) policy and its failure to do so was not vitiated by Wednesbury irrationality in any event.

(iii)      The Department's pursuit of a new policy development process and consultation exercise which culminated in the adoption of a new CHC policy in 2021 and its associated declination to issue guidance on the (ultra vires) 2010 CHC policy were not infected by Wednesbury irrationality.

(iv)      The declaratory order of the High Court cannot therefore be sustained.

(v)        The section 75 complaints relating to the adoption of the new 2021 CHC policy should not have been considered by the High Court, as they clearly fell within the scope of the statutory remedy machinery constituted by section 75(4) of and Schedule 9(2) to the Northern Ireland Act 1998.

(vi)      The order quashing the 2021 CHC policy cannot be sustained in consequence.

Postscript

Having considered the parties' further representations:

(i)                 The court gives effect to the protective costs mechanism previously agreed inter - partes;

(ii)              With regard to para [155] above, in the exercise of its discretion the court declines to include any specific remedy in its final order.

____________

APPENDIX 1

Health and Social Care (Reform) Act (NI) 2009

Section 2

"Department's general duty

2-(1)    The Department shall promote in Northern Ireland an integrated system of -

(a)        health care designed to secure improvement -

(i)        in the physical and mental health of people in Northern Ireland, and

(ii)       in the prevention, diagnosis and treatment of illness; and

(b)       social care designed to secure improvement in the social well-being of people in Northern Ireland.

(2)        For the purposes of subsection (1) the Department shall provide, or secure the provision of, health and social care in accordance with this Act and any other statutory provision, whenever passed or made, which relates to health and social care.

(3)       In particular, the Department must—

(a)        develop policies to secure the improvement of the health and social well-being of, and to reduce health inequalities between, people in Northern Ireland;

(b)       determine priorities and objectives in accordance with section 4;

(c)        allocate financial resources available for health and social care, having regard to the need to use such resources in the most economic, efficient and effective way;

(d)       set standards for the provision of health and social care;

(e)        prepare a framework document in accordance with section 5;

(f)        formulate the general policy and principles by reference to which particular functions are to be exercised;

(g)       secure the commissioning and development of programmes and initiatives conducive to the improvement of the health and social well-being of, and the reduction of health inequalities between, people in Northern Ireland;

(h)       monitor and hold to account the Regional Agency, RBSO and HSC trusts in the discharge of their functions;

(i)        make and maintain effective arrangements to secure the monitoring and holding to account of the other health and social care bodies in the discharge of their functions;

(j)         facilitate the discharge by bodies to which Article 67 of the Order of 1972 applies of the duty to co-operate with one another for the purposes mentioned in that Article.

(4)       The Department shall discharge its duty under this section so as to secure the effective co-ordination of health and social care.

(5)       In this Act—

"health care" means any services designed to secure any of the objects of subsection (1)(a);

"health inequalities" means inequalities in respect of life expectancy or any other matter that is consequent on the state of a person's health;

"social care" means any services designed to secure any of the objects of subsection (1)(b). ....."

Section 3

"(1)        The Department may -

(a)             Provide, or secure the provision of, such health and social care as it considers appropriate for the purpose of discharging its duty under section 2; and

(b)             Do anything else which is calculated to facilitate, or is conducive or incidental to, the discharge of that duty.

(2)        Subsection (1) does not affect the Department's powers apart from this section."

Section 21

"It is the duty of an HSC trust to exercise its functions with the aim of improving the health and social well-being of, and reducing health inequalities between, those for whom it provides, or may provide, health and social care."

APPENDIX 2

Health and Personal Social Services (NI) Order 1972

Article 5

"(1)     The [Department] shall provide throughout Northern Ireland, to such extent as it considers necessary, accommodation and services of the following descriptions _-

(a)       hospital accommodation, including accommodation within the meaning of Article 110 of the Mental Health Order;

(b)     premises, other than hospitals, at which facilities are available for all or any of the services provided under this Order or the 2009 Act;

(c)     medical, nursing and other services whether in such accommodation or premises, in the home of the patient or elsewhere.

(2)     In addition to its functions under paragraph (1), the [Department] may provide such other accommodation and services not otherwise specifically provided for by this Order or the 2009 Act as it considers conducive to efficient and sympathetic working of any hospital or service under its control, and, in relation to any person and notwithstanding anything contained in section 2(1)(a) of the 2009 Act, to provide or arrange for the provision of such accommodation or services, and in connection therewith, to incur such expenditure as is necessary or expedient on medical grounds.

(3)     Where accommodation or premises provided under this Article afford facilities for the provision of primary medical services, of general dental or ophthalmic services or of pharmaceutical services, they shall be made available for those services on such terms and conditions as the [Department] may determine.

(4)     The [Department] may permit any person to whom this paragraph applies to use for the purposes of private practice, on such terms and conditions as the [Department] may determine, the facilities available at accommodation or premises provided under this Article.

(5)     The persons to whom paragraph (4) applies, being persons who provide services under this Order or the 2009 Act, are as follows -

(a)     medical practitioners;

(aa)     persons providing primary medical services under a general medical services contract or in accordance with Article 15B arrangements;

 (b)     dental practitioners;

 (c)     ophthalmic opticians;

 (d)     pharmacists; and

 (e)     such other persons as the [Department] may determine."

Article 7

"(1)     The [Department] shall make arrangements, to such extent as it considers necessary, for the purposes of the prevention of illness, the care of persons suffering from illness or the after-care of such persons.

(2)     The [Department] may recover from persons availing themselves of any service provided by the [Department] under this Article, otherwise than in a hospital, such charges (if any) in respect of the service as the [Department] considers appropriate.

(3)     No arrangements made under paragraph (1) may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 applies solely-

(a)     because he is destitute; or

(b)     because of the physical effects, or anticipated physical effects, of his being destitute.

(3A)     Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of paragraph (3) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in paragraph 2 of that Schedule to the Secretary of State substitute references to the Department."

Article 15

"(A1)   The functions conferred by this Article are to be exercised as part of the system of social care designed to secure improvement in the social well-being of people in Northern Ireland mentioned in section 2(1)(b) of the 2009 Act.

(1)        An authorised HSC trust shall make available advice, guidance and assistance, to such extent as it considers necessary, and for that purpose shall make such arrangements and provide or secure the provision of such facilities (including the provision or arranging for the provision of residential or other accommodation, home help and laundry facilities) as it considers suitable and adequate.

(1A)     Arrangements under paragraph (1) may include arrangements for the provision by any other body or person of any of the [social care] on such terms and conditions as may be agreed between the trust and that other body or person.

(1B)     An authorised HSC trust may assist any body or person carrying out any arrangements under paragraph (1) by-

 (a)      permitting that body or person to use premises belonging to the trust;

 (b)     making available vehicles, equipment, goods or materials; and

 (c)     making available the services of any staff who are employed in connection with the premises or other things which the trust permits the body or person to use,

on such terms and conditions as may be agreed between the Department and that body or person.

(2)     Assistance under paragraph (1) may be given to, or in respect of, a person in need requiring assistance in kind or, in exceptional circumstances constituting an emergency, in cash; so however that before giving assistance to, or in respect of, a person in cash the trust shall have regard to his eligibility for receiving assistance from any other statutory body, and, if he is so eligible, to the availability to him of that assistance in his time of need.

(3)        Where under paragraph (1) a trust makes arrangements or provides or secures the provision of facilities for the engagement of persons in need (whether under a contract of service or otherwise) in suitable work, the trust may assist such persons in disposing of the produce of their work.

(4)     [A trust] may recover in respect of any assistance, help or facilities under this Article such charges (if any) as the trust considers appropriate.

(5)        In so far as it relates to the provision of accommodation, this Article is subject to Articles 36 and 99.

(6)        Assistance may not be provided under paragraph (1) in respect of any person to whom section 115 of the Immigration and Asylum Act 1999 applies if his need for assistance has arisen solely-

(a)     because he is destitute, or

(b)     because of the physical effects, or anticipated physical effects, of his being destitute.

(7)        Subsections (3) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of paragraph (6) as they apply for the purposes of that section, but for references to the Secretary of State in subsections (5) and (7) of that section and in paragraph 2 of that Schedule substitute references to an HSC trust."

Article 36

"...(1)     Subject to paragraph (2), arrangements must not be made under Article 15 for the provision of accommodation together with nursing or personal care for persons such as are mentioned in Article 10(1) of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (residential care homes) unless-

(a)     the accommodation is to be provided, under the arrangements, in a residential care home or nursing home (within the meaning of that Order); and

(b)     a person carrying on or managing the home is registered in respect of it under that Order.

(2)     The Department may by regulations make provision for or in connection with the making of arrangements under Article 15 for the provision of accommodation in Great Britain, the Channel Islands or the Isle of Man.

(2A)    Any question under this Order as to whether a person is ordinarily resident in the operational area of an authorised HSC trust is to be determined by the trust.

(3)     Any arrangements made by virtue of this Article shall provide for the making by the HSC trust to the other party thereto of payments in respect of the accommodation provided at such rates as may be determined by or under the arrangements; and, subject to paragraph (7), the HSC trust shall recover from each person for whom accommodation is provided under the arrangements the amount of the refund which he is liable to make in accordance with the following provisions of this Article.

(4)     Subject to the following provisions of this Article, a person for whom accommodation is provided under any such arrangements shall refund to the HSC trust-

(a)     where the payments made in respect of him under paragraph (3) include any amount in respect of nursing care by a registered nurse, the amount of such payments less any amount paid in respect of such nursing care;

(b)     in any other case, the amount of the payments made in respect of him under paragraph (3).

(4A)    In paragraph (4) "nursing care by a registered nurse" means any services provided by a nurse registered under Article 5 of the Nursing and Midwifery Order 2001 (SI 2002/253) and involving-

(a)     the provision of care, or

(b)     the planning, supervision or delegation of the provision of care,

other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a nurse so registered.

(5)     Where a person for whom accommodation is provided, or proposed to be provided, under any such arrangements satisfies the HSC trust that he is unable to make a refund at the full rate determined under paragraph (4)(a) or (b), the trust shall assess his ability to pay, and accordingly determine at what lower rate he shall be liable to make a refund.

(6)     Regulations may make provision for the assessment, for the purposes of paragraph (5), of a person's ability to pay.

(7)     Where accommodation in any home or premises is provided for any person under arrangements made by virtue of this Article and the HSC trust, the person concerned and the voluntary organisation or other person managing the home or premises (in this paragraph referred to as "the provider") agree that this paragraph shall apply-

(a)     so long as the person concerned makes the payments for which he is liable under sub-paragraph (b), he shall not be liable to make any refund under paragraph (4) or (5) and the trust shall not be liable to make any payment under paragraph (3) in respect of the accommodation provided for him;

(b)     the person concerned shall be liable to pay to the provider such sums as he would otherwise (under paragraph (4) or (5)) be liable to pay by way of refund to the trust; and

(c)     the Department shall be liable to pay to the provider the difference between the sums paid by virtue of sub-paragraph (b) and the payments which, but for sub-paragraph (a), the trust would be liable to pay under paragraph (3).

(8)     An HSC trust may, on each occasion when it makes arrangements by virtue of this Article for the provision of accommodation for a person and irrespective of his means, limit to such amount as appears to the trust reasonable for him to pay the refunds required from him for his accommodation during a period commencing when the trust began to make the arrangements for accommodation for him and ending not more than 8 weeks after that."

Article 98

"(1)     The services provided under this Order or the 1991 Order or the Health Services (Primary Care) (Northern Ireland) Order 1997 shall be free of charge, except where any provision contained in or made under this Order or the Health Services (Primary Care) (Northern Ireland) Order 1997 or the 2009 Act expressly provides for the making and recovery of charges.

(2)     The provisions of Schedule 15 shall have effect in relation to the making and recovery of certain charges and to the other matters mentioned in that Schedule."

Article 99

"... (1)     Where a person is provided under Article 15 with accommodation in premises provided by an HSC trust, the trust shall recover from him the amount of the payment which he is liable to make in accordance with the following provisions of this Article.

(2)     Subject to the following provisions of this Article, the payment which a person is liable to make for any such accommodation shall be in accordance with a standard rate determined by the Department for that accommodation.

(2A)   Different rates may be determined under paragraph (2) for (in particular)—

(a)     different descriptions of accommodation;

(b)     accommodation provided by different trusts.

(2B)    The standard rate determined for accommodation provided by any trust must represent the full cost to the trust of providing that accommodation, other than any costs in respect of nursing care by a registered nurse (within the meaning given by Article 36(4A)) at that accommodation.

(3)     Subject to paragraph (4), where a person for whom such accommodation is provided, or proposed to be provided, satisfies the trust that he is unable to pay for the accommodation at the standard rate, the trust shall assess his ability to pay, and accordingly determine at what lower rate he shall be liable to pay for the accommodation.

(4)     The liability of any person to pay for accommodation under this Article may be reduced by reason of any work which he performs and which assists materially in the management of the premises.

(5)     Regulations may make provision for the assessment, for the purposes of paragraph (3), of a person's ability to pay.

(6)     An HSC trust may, on each occasion when it provides accommodation mentioned in paragraph (1) for any person and irrespective of his means, limit to such amount as appears to the trust reasonable for him to pay the payments required from him for his accommodation during a period commencing when the trust began to provide the accommodation for him and ending not more than 8 weeks after that."

APPENDIX 3

Section 75, Northern Ireland Act 1998

"Statutory duty on public authorities.

(1)        A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity—

(a)        between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation;

(b)       between men and women generally;

(c)        between persons with a disability and persons without; and

(d)       between persons with dependants and persons without.

(2)        Without prejudice to its obligations under subsection (1), a public authority shall in carrying out its functions relating to Northern Ireland have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group.

(3)        In this section "public authority" means—

(a)        any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 (departments, corporations and bodies subject to investigation) and designated for the purposes of this section by order made by the Secretary of State;

(4)       Schedule 9 (which makes provision for the enforcement of the duties under this section) shall have effect."

Schedule 9, Northern Ireland Act 1998

"Equality: enforcement of duties

The Equality Commission

1          The Equality Commission for Northern Ireland shall—

(a)        keep under review the effectiveness of the duties imposed by section 75;

(b)       offer advice to public authorities and others in connection with those duties; and

(c)        carry out the functions conferred on it by the following provisions of this 

Equality schemes

2(1)      A public authority to which this sub-paragraph applies shall, before the end of the period of six months beginning with the commencement of this Schedule or, if later, the establishment of the authority, submit a scheme to the Commission.

(2)        Sub-paragraph (1) applies to any public authority except one which is notified in writing by the Commission that that sub-paragraph does not apply to it.

3(1)      Where it thinks appropriate, the Commission may—

(a)        request a public authority to which paragraph 2(1) does not apply to make a scheme;

(b)       request any public authority to make a revised scheme.

(2)        A public authority shall respond to a request under this paragraph by submitting a scheme to the Commission before the end of the period of six months beginning with the date of the request.

4(1)      A scheme shall show how the public authority proposes to fulfil the duties imposed by section 75 in relation to the relevant functions.

(2)        A scheme shall state, in particular, the authority's arrangements—

(a)        for assessing its compliance with the duties under section 75 and for consulting on matters to which a duty under that section is likely to be relevant (including details of the persons to be consulted);

(b)       for assessing and consulting on the likely impact of policies adopted or proposed to be adopted by the authority on the promotion of equality of opportunity;

(c)        for monitoring any adverse impact of policies adopted by the authority on the promotion of equality of opportunity;

(d)       for publishing the results of such assessments as are mentioned in paragraph (b) and such monitoring as is mentioned in paragraph (c);

(e)        for training staff;

(f)        for ensuring, and assessing, public access to information and to services provided by the authority.

(3)        A scheme shall—

(a)        conform to any guidelines as to form or content which are issued by the Commission with the approval of the Secretary of State;

(b)       specify a timetable for measures proposed in the scheme; and

(c)        include details of how it will be published.

(4)        In this paragraph—

·         "equality of opportunity" means such equality of opportunity as is mentioned in section 75(1);

·         "the relevant functions" means the functions of the public authority or, in the case of a scheme submitted in response to a request which specifies particular functions of the public authority, those functions.

(5)        But where the public authority is designated by order under section 75(3)(a) or (d)—

·         "equality of opportunity" does not include equality of opportunity in relation to which (by virtue of the order) the public authority has no obligations under section 75(1);

·         "the relevant functions" does not include functions of the public authority so far as the obligations imposed by section 75 do not (by virtue of the order) apply to their exercise.

Textual Amendments