• Thirteen CCGs agree to review “unlawful” NHS continuing healthcare funding policies to avoid judicial review
  • One CCG remains “open to action” for failing to cooperate with national investigation
  • NHS England has asked CCGs to save £855m cumulatively over four years from CHC budgets

Thirteen clinical commissioning groups have performed a U-turn on “de-humanising” funding policies, after being threatened with legal action by the Equality and Human Rights Commission.

The EHRC wrote to the CCGs in March to warn they would be taken to court unless they reviewed “unlawful” funding policies for people with serious long term health conditions. It accused them of illegally putting creating “arbitrary caps”, and failing to consider individuals’ needs.

Today the EHRC said a judicial review was “not necessary at this time”, as all of the 13 CCGs involved were now in the process of reviewing their NHS continuing healthcare policies. The commission has asked to see the revised versions to ensure they are “lawful”.

A spokeswoman for the commission told HSJ: “The U-turn resolves almost eight months of disagreements between the EHRC and CCGs across the UK over their unlawful CHC policies.”

In a statement, several of the CCGs said they did not accept their existing policies were “necessarily unlawful on the grounds advanced by the EHRC”, but confirmed they had agreed to review them.

NHS CHC is the means for CCGs to pay for community care for adults with serious long term conditions or disabilities who are assessed as having a primary medical care need.

NHS England wants CCGs to save £855m cumulatively over four years from CHC spending nationally.

HSJ has previously reported that 37 CCGs were introducing policies to cap the cost of providing CHC support in a person’s home if the spend would be significantly higher than a residential care placement. We also revealed “ludicrous variation” in the rate of people receiving CHC funded care.

The EHRC initially wrote to 43 CCGs in October to warn them their CHC policies were a “serious breach of the Human Rights Act, the Public Sector Equality Duty and the Department of Health and Social Care’s own CHC framework”.

One of the 43, Haringey CCG, is still “open to further action” from the commission as it remains uncooperative with the EHRC’s investigation, though it was not one of the 13 threatened with judicial review.

EHRC chief executive Rebecca Hilsenrath said: “We said that it is unacceptable and de-humanising for CCGs to adopt a blanket approach in forcing people into residential care, especially when with the right support they would be able to live at home with the families who love them.

“We will continue to work with CCGs to ensure that future policies do not make the same mistakes.”

The 13 CCGs which are revising their CHC policies are:

  • Brent;
  • Coventry and Rugby;
  • Dudley;
  • East and North Hertfordshire;
  • Eastern Cheshire;
  • Harrow;
  • Hillingdon;
  • South Cheshire;
  • Vale Royal;
  • West Cheshire;
  • Warwickshire North;
  • Lincolnshire West; and
  • Redditch and Bromsgrove.

A spokesman for the CCGs in Coventry and Rugby; Dudley; East and North Hertfordshire; Redditch and Bromsgrove; and Warwickshire North said: “In previous conversations with the Equality and Human Rights Commission (EHRC) the CCGs clearly stated that they did not accept that their existing policies are necessarily unlawful on the grounds advanced by the EHRC.

“However, the CCGs agreed to review the policies in light of both the New CHC Framework which comes into effect in October and the views expressed by the ECHR. The review they have committed to undertake will provide an opportunity to include careful account of the views expressed by the EHRC.”

Article updated on 4 June to include statement from five of the CCGs.