• CCGs facing court over “discriminatory” NHS Continuing Healthcare policies
  • Named CCGs have fourteen working days to respond to the EHRC’s legal letter
  • EHRC chief executive said it will force the NHS to “think again” about its CHC funding policies

The Equality and Human Rights Commission has written to 13 clinical commissioning groups threatening legal action over “discriminatory” funding policies for people with serious long-term health conditions.

The EHRC has today raised “serious concerns” about local NHS Continuing Healthcare policies. 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.

The commission confirmed today that any of the CCGs that do not provide it with evidence their policies are lawful, or commit to reviewing them, within 14 working days will be “will be taken to court” under judicial review proceedings.

The commission said CCGs which place “arbitrary caps” on CHC funding and fail to consider a patient’s individual needs are in “serious breach of the Human Rights Act, the public sector equality duty and the Department of Health and Social Care’s own NHS CHC framework”.

The letters to CCGs say their decision to “refuse to fund a clinically viable” package at home is “likely to interfere with their right to respect to family life” under article eight of the Human Rights Act. In balancing the potential cost savings against the consequences for the individuals, the CCGs must ensure the savings are high enough to “ensure a fair balance” has been struck.

It also said it was “unlawful for a CCG to depart” from the DHSC’s national framework on CHC without a “cogent” reason for doing so.

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.

The 13 CCGs tfacing legal action from the EHRC 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.

It follows the EHRC  writing to 43 CCGs in October about their policies. About a quarter of those are now reviewing their approach.

EHRC chief executive Rebecca Hilsenrath said: “It is utterly unacceptable that anyone should be forced into residential care when they are healthy enough to live independently and with their families. We will use our powers to ensure that the NHS thinks about this again.”

Last week, the DHSC released new guidance for commissioners on CHC eligibility criteria. It continues to allow for caps on care costs as long as an individual’s needs are taken into account.

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