David Lock: Do CCGs have the power to pay out for past PCT NHS continuing care errors?

The NHS has paid out vast amounts—probably hundreds of millions of pounds—in recent years as a result of decisions that patients were not entitled to NHS Continuing Care (where the NHS meets the costs of a package of social care and accommodation outside a hospital).  Mostly these are claims by relatives of deceased patients who objected to paying nursing home fees for elderly patients who were classified as “social care” rather than being eligible for NHS Continuing Care.

Several attempts have been made by the NHS to stop new claims, but these have not been too successful because the claims, based on alleged maladministration, continue. The “liabilities” associated with NHS Continuing Care claims were supposedly transferred from primary care trusts (PCTs) to clinical commissioning groups (CCGs) in the “transfer orders,” which transferred assets and liabilities from PCTs to CCGs. The intention was that CCGs should pay out for past NHS Continuing Care errors made by the PCTs.

However there is an interesting twist to all this. Whoever drafted the transfer scheme appears to have assumed that pay outs for past NHS Continuing Care errors were “liabilities” which could be transferred from PCTs to the new CCGs. In fact payments for these claims were never “liabilities,” but were only ever ex gratia payments made voluntarily by PCTs.

Does this matter? Well yes because it means that CCGs have no duty to make payments out of their current assets for past errors made by PCTs. In fact not only do CCGs have no duty to make these payments, they probably don’t have any power to do so either. The practical effect is that CCGs should reject all claims for ex gratia payments for past NHS Continuing Care claims. That is probably not quite what the transfer orders intended but would be one way to make sure that CCG monies are used for their intended purpose—namely paying for healthcare in the current year rather than making up for the sins of past NHS bodies in past years.

David Lock is a barrister and QC, Landmark Chambers. He is a board member of Brook Sexual Health, a member of the BMA Ethics Committee, and a Honorary Professor at University of Birmingham. He has set up a website www.gplaw.co.uk, which pulls together law, guidance, and practice that affect general practitioners.

Competing interests: I am a member of the Labour Party and chair the West Midlands Branch of the Labour Finance and Industry Group. I am a non-executive board member of Heart of England NHS Foundation Trust. My wife is a doctor who is employed by Worcestershire Partnership NHS Trust.