New policy on paying for care costs in Northern Ireland nursing homes is to be quashed

Mr Justice Scoffield held that the Department of Health failed to properly consider the impact on the elderly who could potentially lose their life savings or a family property to meet the charges.

He also found that a quadriplegic pensioner with complex medical needs was unfairly refused the funding and ordered the Belfast Trust to reconsider his application.

Identifying an unlawful failure to provide adequate guidance, the judge said: “The Department has been responsible for a plain dereliction in its duty in this sphere.”

Legal challenges were mounted by 74-year-old Robin McMinnis and Northern Ireland’s Commissioner for Older People, Eddie Lynch, to issues around the concept of continuing healthcare (CHC).

The policy involves an assessment of whether to meet the costs of social care which is primarily driven by health needs.

Changes to eligibility for the scheme introduced in February 2021 used a single criteria question to ask if care needs can properly be met in any setting other than a hospital - where there is no fee. Anyone who answers ‘yes’ would be placed in a nursing home with a charging policy applied.

With all older people whose assets exceed £23,250 having to pay for social care costs, the new policy effectively restricts CHC in Northern Ireland to those in hospitals.

A two-tier system has also developed where a previous scheme from 2010 remains in place for any applications pre-dating February 2021.

Mr McMinnis, a former high-ranking civil servant who was awarded the OBE in recognition of his work and contribution to the region, suffers from a serious degenerative condition which has left him paralysed and bed-bound.

Despite retaining full cognitive functions, his physical movement is restricted to his head and eyes and he requires specialist care with every physical aspect of his life.

In 2017 he moved permanently to the Somme Nursing Home in east Belfast, where the annual cost of his case is approximately £25,000.

The court heard Mr McMinnis and his wife had sold their matrimonial home, with Mrs McMinnis downsizing to a smaller property close to her husband’s care home. The couple were later advised that the Trust intended to seek recoupment of his share of the sale proceeds as part of a required contribution to his care costs backdated to 2017. Even though the financial reassessment was put on hold pending the outcome of the legal action, it was said to have added to their stress.

Mr McMinnis challenged the Trust’s decision in May 2021 to refuse his application for CHC under the 2010 policy, claiming it was procedurally unfair and irrational.

His lawyers disputed the analysis of nursing requirements and argued that without a proper assessment there is no legal authority to charge.

The Trust argued that expert clinical judgment, taking into account the distinction between social and medical care, has assessed the level of need as low.

It was also stressed that nursing fees are covered by a flat rate £100 per week contribution. No view was formed on whether Mr McMinnis should ultimately qualify for CHC funding.

However, Mr Justice Scoffield held there was no clear and accessible methodology applied to the question of eligibility under the 2010 policy.

“It is impossible to avoid the conclusion that the assessment panel in his case made the process up - both as to procedure and how his individual needs would be assessed against the primary

healthcare criterion - as they went along,” he said.

Although he did not question the professionalism of those involved, the judge maintained: “From the perspective of fairness, it was not good enough.”

Citing minimal information and guidance from the Department about CHC, Mr Justice Scoffield suggested some individuals may have qualified for CHC under the 2010 policy but were either completely unaware of its availability or perhaps even been misinformed that it did not exist in Northern Ireland.

In a challenge to the revised 2021 policy, the Commissioner for Older People claimed it will result in some having to pay for health needs, rather than personal social services, well in excess of the £100 weekly nursing contribution.

It was also contended that the Department is in breach of its legal obligation to promote equality of opportunity between people of different ages.

Backing those submissions, the judge said the equality exercise carried out amid a focus on simplifying the test had failed to grapple with how the new policy removed any possibility of funding for individuals receiving care in a non-hospital setting.

“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,” he pointed out.

“It may well not be unlawful for the Department to adopt the new policy which it has in terms of CHC; but where it was effectively abolishing this type of funding arrangement in the community, it should have faced up to that fact and fully and fairly examined the implications and impact of it doing so.”

The judge confirmed: “I propose to quash the Trust’s decision by which it determined that the first applicant was not eligible for CHC, on the basis that this was procedurally unfair to Mr McMinnis.

“I will remit determination of that issue to the Trust for reconsideration.”

He added: “I further propose to quash the decision of the Department to adopt the 2021 Policy on the basis that it was adopted in breach of its obligation to have due regard to the need to promote equality of opportunity between persons of different age under section 75 of the Northern Ireland Act 1998.

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

“Given that a number of Trusts may still have historic applications which require to be addressed under the 2010 Policy, urgent consideration should in my view be given to remedying this situation.

Indeed, in light of the quashing of the 2021 Policy, there may be further historic, or more recent, applications which require to be addressed under the 2010 Policy, pending the adoption of a new policy which has been the subject of lawful consideration.” ends