a) No, the ICB is only responsible for evaluating whether someone’s health, social and personal care needs ADD UP to the concept of Primary Health Need, which then entitles the person to CHC – NHS continuing healthcare status and funding. Once a person is eligible for that form of care, there is a duty to meet the needs, but not necessarily the same sort of duty as would be owed by a council.
That concept is a mere construct – a euphemism from the DHSC as to where IT has decided to draw the line between free NHS health care and chargeable social care under the Care Act. It can do that, under the NHS Act, and thus that is why the National Framework has been developed, as a rationale for the Secretary of State’s own discretion, which is subject to public law, and which must be reasonable.
A person’s social care needs will – if the person has been to their council – already have been assessed. The Decision Support Tool is used to map any existing assessment onto the scoring scheme which the DHSC has imposed for the determination of a person’s status in terms of CHC. That is why a good DST exercise depends on an up-to-date assessment by social services, which can be obtained by anyone, if their situation passes the very low threshold test in s9 of the Care Act, and whether or not they want to be care planned for by the council, first, or have just been self funding or newly injured, and are applying for CHC from scratch/for the first time.
The National Framework takes the position that the eligibility test for adult social services is part and parcel of the justification for the DHSC’s line on what is capable of BEING personal or social care in the first place. But we think that that is a judicially reviewable position in and of itself, because the concept of care and support is wider than the concept of need which is eligible. Although we do get why the government thinks that nobody who is ineligible for social services under the Care Act could qualify for CHC, we don’t think that that stands up to scrutiny, because the NHS’s power to meet needs under the NHS Act is virtually unlimited, whereas the question of the scope of adult social services is a matter of law under the Care Act, and not a matter for the DHSC, in the end.
If the question had been ‘is an ICB obliged to take the Care Act into account, in terms of how it provides for due process, or for care planning purposes?’, we would have answered a bit differently, please note.
b) Is there a duty once someone is eligible for CHC to meet needs?
It is accepted that under the NHS Act, the duties owed by the Health Service are in fact not individually enforceable by members of the public, and so that would logically be true for the needs of a CHC patient.
However, in practice, given that a finding of CHC eligibility puts a legal barrier in the way of the council meeting the needs under the Care Act, it is inconceivable in practice that any ICB would refuse to meet the needs.
What it would do would be to make an offer of a way of meeting needs, or an amount of money for meeting needs, that would be valid unless or until judicially reviewed. And that is why people need to know about the test in public law for what is a defensible decision, as opposed to what is an indefensible one that the courts would strike down if a person bothered to challenge the decision and could find the legally aided help to do so.