Dennison, R (on the application of) v Bradford Districts Clinical Commissioning Group [2014] EWHC 2552 (Admin)

Case No CO/260/2014[2014] EWHC 2552 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 23 rd July 2014
Before
THE HONOURABLE MR JUSTICE WILLIAM DAVIS
Between
RClaimant(On the application of Neal Dennison Administrator of the Estate of the late Lily Dennison)ClaimantBradford Districts Clinical Commissioning GroupDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Stephen Cragg Q.C.(instructed by Hugh James Nursing Care) for ClaimantRachel Kamm (instructed by Hempsons) for DefendantHearing Hearing dates: 22 July 2014
JudgmentThe Hon Mr Justice William Davis:
[1]The Claimant is the son of the late Lily Dennison. He brings this claim on behalf of his mother’s estate. From January 2006 until her death in October 2008 Mrs Dennison was a resident at Springfield Nursing Home in Bradford. From May 2007 she received some assistance from the Defendant’s predecessor, Bradford and Airedale Primary Health Care Trust (“the PCT”) to cover nursing costs. For the whole of her period of residence at Springfield Nursing Home, she funded the accommodation and non-nursing care costs of the home herself. Had the PCT assessed her as being eligible for continuing health care (“CHC”) the PCT would have funded the entirety of the cost of her residence at the home. In September 2012 the Defendant (“the CCG”) as successor to the PCT was asked by the Claimant to review the position of his mother prior to her death with a view to an assessment being made after the event that she was eligible for CHC throughout her residence at the home. The CCG in due course agreed to assess Mrs Dennison’s position between January 2006 and May 2007. It refused to assess her position between May 2007 and the date of her death in October 2008. The Claimant seeks judicial review of that decision refusing to assess the position from May 2007 onwards.[2]Proceedings were issued on the 20th January 2014. On the 19th February 2014 Mr Justice Popplewell granted any extension of time that may have been necessary for the bringing of the proceedings. He further ordered that the application for permission should be listed in court as part of a rolled-up hearing, the substantive claim to be considered forthwith in the event of permission being granted. Directions were given in relation to service of evidence. The parties appeared before me fully prepared for a final hearing of the application for judicial review.[3]Eligibility for CHC is of great significance for any individual resident in a nursing or care home. CHC is not means tested. The most up to date definition of CHC appears in Annex A of the National Framework document published in November 2012. “A complete package of ongoing care arranged and funded solely by the NHS, where it has been assessed that the individual has a ‘primary health need’. It can be provided in any setting. Where a person lives in their own home, it means that the NHS funds all the care and support that is required to meet their assessed health and care needs. Such care may be provided either within or outside the person’s home, as appropriate to their assessment and care plan. In care homes, it means that the NHS also makes a contract with the care home and pays the full fees for the person’s accommodation, board and care.” The definition has been revised from time to time over a number of years. The revisions have not affected the essential elements of the definition. The crucial issue in determining eligibility for CHC is an assessment of whether the individual has a “primary health need”. In earlier versions of the guidance the term was “primary need for health care”. The two expressions mean the same. The National Framework document at paragraphs 3.5 and 3.6 provide a definition. “3.5 Whilst there is not a legal definition, in simple terms an individual has a primary health need if, having taken account of all their needs …. it can be said that the main aspects or majority part of the care they require is focused on addressing and/or preventing health needs. 3.6 Primary health need is not about the reason why someone requires care or support, nor is it based on their diagnosis; it is about their overall actual day-to-day care needs taken in their totality. Indeed it could be argued that most adults who require a package of health and social care support do so for a health-related reason (e.g. because they have had an accident or have an illness or disability). It is the level and type of needs themselves that have to be considered when determining eligibility for NHS continuing healthcare.”[4]As long ago as 2003 the Health Service Commissioner issued a report in which both central government and local NHS funders were criticised in relation to their approach to eligibility for CHC. The outcome was a scheme whereby individuals who considered that they ought to have been provided with CHC were entitled to obtain a retrospective review of their position so long as they had not been assessed previously for CHC. Very many applications were made under the scheme. In November 2007 the opportunity to request a review where the care was provided prior to 1st April 2004 was closed. In March 2012 the Department of Health announced its intention to close the scheme for previously un-assessed episodes of care between April 2004 and March 2012. The closing date for the period affecting Mrs Dennison was 30th September 2012.[5]Mrs Dennison had not been assessed for CHC at all prior to the 8th May 2007. So it was that the CCG agreed to assess her eligibility from the point of her admission to the nursing home up to that date. On the 8th May 2007 and on subsequent dates the PCT had engaged in some form of assessment of Mrs Dennison. The precise nature and effect of those assessments will be considered hereafter. There is no doubt that they occurred. Thus, Mrs Dennison could not have claimed the benefit of the retrospective review scheme as it had operated hitherto. However, in October 2012 the NHS issued a document entitled NHS Continuing Healthcare Review Process with the subtitle “to be adopted when dealing with requests for assessment of past periods of care between 1st April 2004 and 31st March 2012”. The relevant part of Paragraph 4.1.6 of that document reads as follows: The PCT should make sure that the request relates to a previously “un-assessed” period of care … The closing date does not apply to reviews of decisions that have already been made. The PCT should check its records to consider the following:(i) Has the person been considered for CHC previously for the period of care being requested? This may be either by the use of the Checklist process (or equivalent if before October 2007) or a full CHC assessment. If a Checklist was carried out, it should• Have been completed appropriately;• Be clinically sound;• Reflect the patient information known at the time• Relate to the relevant periods.(ii) Was the individual in receipt of either Registered Nursing Care Contributions (RNCC) (pre October 2007) or NHS Funded Nursing Care (FNC) (post October 2007)? An RNCC/FNC assessment should have only taken place once it had been established that the individual was not eligible for NHS CHC. Providing a proper consideration of the need for NHS CHC was made prior to the RNCC/FNC assessment or annual review, then a further assessment of the past period of care is not necessary.• Have been completed appropriately;• Be clinically sound;• Reflect the patient information known at the time• Relate to the relevant periods.[6]The Claimant and the Defendant agree that the 2012 Process document permits claims for a retrospective review of eligibility for CHC in cases where there has been an assessment in the past i.e. a review of a decision already made. This is clear from the terms of the Process document. It is agreed further that Paragraph 4.1.6 sets out the basis on which a PCT (or a CCG as it now will be) should consider whether to undertake such a retrospective review. The Claimant and the Defendant were not ad idem as to how the paragraph should be applied. Mr Cragg Q.C on behalf of the Claimant argued that a PCT (or CCG) was required to consider the detail of the assessment already made when checking its record as required. He cited the terms of the letter sent by the Claimant’s solicitors on the 14th October 2013 as exemplifying the proper approach. That letter descended to a detailed analysis of the checklist exercise conducted by the Defendant’s predecessor PCT with proposed re-grading of various categories of disability within the checklist. Miss Kamm on behalf of the Defendant submitted that this approach was not justified by any sensible analysis of the purpose of the process. Her argument was that, if the Defendant were to be required to conduct the kind of exercise suggested by the Claimant, the distinction drawn within the process between previously un-assessed cases and cases where a review is sought of a decision already made would largely disappear. The exercise suggested by the Claimant would amount to a full review of the assessment when what in fact was required was a simple sift exercise. I consider that the proper interpretation of Paragraph 4.1.6(i) requires an approach between the two extremes proposed by the parties to these proceedings. I accept that the check of the PCT records identified in the process does not require a detailed analysis of the previous assessment of the kind carried out in the Claimant’s solicitors’ letter of the 14th October 2013. That comes close to a full review of the assessment which is not the purpose of Paragraph 4.1.6. Its purpose is to ensure that the PCT (or CCG) assesses the checklist by reference to the bullet points under Paragraph 4.1.6(i). That does require a sifting exercise rather than a full assessment. However, the nature of the sift must be sufficient to show that the checklist has been completed appropriately and that it is clinically sound. The latter requirement involves some qualitative analysis – as does a proper sift in any context. Miss Kamm is correct in her submission that it is not for this Court to engage in the sift exercise in relation to each assessment made in 2007 and 2008 as if it were for the Court to determine whether the criteria under the paragraph are made out. It is for the Court to consider the rationality and reasonableness of the decision made by the Defendant. That requires a consideration – insofar as the evidence allows – of the decision making process. As part of that process the Court will give some consideration to whether the criteria under Paragraph 4.1.6(i) can realistically be said to be satisfied.[7]Paragraph 4.1.6(ii) adds a further element to the sift process. This element does not require any true qualitative analysis. The provision is as follows: if the individual was in receipt of RNCC or FHC (which Mrs Dennison was), the assessment for that funding should have taken place only after it had been established that the individual was not eligible for NHS CHC; providing the RNCC assessment did follow the CHC assessment, no further assessment of a past period of care will be necessary under this sub-paragraph. This provision reflects the conclusions of this Court in R (Grogan) v Bexley Health Trust [2006] EWHC 44 Admin. The Department of Health issued guidance following that decision. Paragraphs 18 to 20 of the guidance read as follows:18. The correct sequential process for assessing eligibility for NHS Continuing Healthcare and NHS-funded nursing care is contained in Departmental Guidance HSC 2003/006, and summarised in correspondence sent to all SHAs on 28 November 2005. This assessment framework states that the first step in the process is to identify an individual’s care needs and to consider if he is eligible for NHS Continuing Healthcare. Only then, and only if it is decided that the individual is not so eligible, is there a determination of the registered nurse’s contribution to care of that individual in a care home providing nursing care. This is part of the planning and provision of care, after it has been decided that the individual does not qualify for NHS Continuing Healthcare, applying the Primary Health Need Approach.19. In short, the RNCC determination takes place only once it has been established that the nursing care needed is not such as to qualify that individual for NHS Continuing Healthcare. For example, the individual requires a placement in a care home providing nursing care to manage their various needs, but their primary need is not a health need (as described in paragraph 13).20. SHAs should ensure that clear protocols for assessment and decisionmaking are in place. These should lead to a record of a rationale for decisions, which demonstrate the comparison of the nature, intensity, complexity and unpredictability of the person’s health care needs to the incidental and ancillary “test”, so that a consistent approach can be demonstrated. Paragraph 4.1.6(ii) does not state explicitly that, if the RNCC assessment preceded the CHC assessment, a further assessment of past period of care will be necessary. I am satisfied that this is implicit in the terms of the paragraph. If it were not, it would permit a PCT (or CCG) to condone a practice in direct contravention of guidance issued as a direct result of the judgment in Grogan (supra). Therefore, if the PCT records show that the RNCC assessment came first, a review of the past assessment must follow. Were it to do otherwise, the PCT (or CCG) would be acting unlawfully. In addition, the PCT local policy operational at the time of the relevant assessments of Mrs Dennison was in the same terms as the departmental guidance. Failure to follow its own policy would render the PCT liable for judicial review.[8]With those principles in mind, I must address first the question of whether the Claimant has an arguable case for judicial review of the Defendant’s decision not to carry out a further assessment of the period of care from May 2007 onwards. If he does have an arguable case, I shall move on to consider whether judicial review should be granted. The substantive merits of the Claimant’s case will be relevant to both arguability and grant of judicial review. I shall consider the evidence for both purposes at the same time. Whether judicial review in fact should be granted will require consideration of issues of discretion, in particular whether there is an alternative remedy open to the Claimant.[9]The assessment in May 2007 of Mrs Dennison was carried out by a part time Nurse Case Manager employed by the PCT, a Janet Bebbington. The evidence of Nadine Newton, a senior manager with the CCG, is that Janet Bebbington’s employment continues with the CCG. No evidence has been adduced from Janet Bebbington. The contemporaneous records have been retrieved so the CCG was able to carry out the exercise required by Paragraph 4.1.6 as set out above. The records consist of three documents. First, there is a “Nursing Needs Assessment Tool”. This is a pro forma document dealing with various aspects of potential nursing needs: breathing; mobility; continence; eating and drinking; sleeping; communication; pain control; tissue viability; general medical condition; cognition; medication. This document in part required the nurse manager to tick a particular box in relation to each aspect of nursing need. In addition, the document enabled the nurse manager to describe the nature of the care required under each heading, both in terms of numbers of nurses or carers and in relation to the type of care needed. At the conclusion of the form the nurse manager was required to complete a section entitled “Rationale”. This required the nurse manager to “be specific and explain why in your opinion which level of the West Yorkshire Continuing Care Criteria is met and what level of funding should be in place”. Janet Bebbington completed and signed this form. The assessment date is given as the 8th May 2007. It is not clear on the face of the form as to whether this was the date on which she signed the form.[10]The individual headings within the form were completed by Janet Bebbington both by way of the tick box exercise and by a narrative description of the kind of care required. The Claimant argues that an examination of the entries made by Janet Bebbington in this part of the form demonstrates that they were not “clinically sound”. I do not accept this argument. On the face of the document Janet Bebbington conducted a proper assessment of the needs of Mrs Dennison. It is sufficient to satisfy the type of sift required by Paragraph 4.1.6. The detailed analysis suggested by the Claimant is not appropriate or necessary. The “Rationale” section was completed by Janet Bebbington in these terms:
“Requested to undertake nursing needs assessment due to deterioration in her general condition. Her overall medical and nursing needs are stable and predictable however they are complex in nature.”
The Claimant’s submission is that this part of the form was where the PCT decision as to the level of care required by Mrs Dennison could and should have been identified. That was what the form itself indicated. What Janet Bebbington entered in this section gave no explanation at all as to the level of continuing care required. It did not say anything about the appropriate level of funding. The entry of Janet Bebbington does not enable the reader to come to any sensible conclusion as to the decision making process. On its own it simply tells the reader what the decision was. The Claimant argues that inter alia this demonstrates plainly that the process was not “clinically sound”. Any rational PCT (or CCG) would have recognised that fact and agreed to a review of the May 2007 assessment. Were the Claimant’s case in relation to the May 2007 assessment to end there, the decision would be finely balanced. As Miss Kamm argues on behalf of the Defendant, the assessment tool is not a judicial document and should not be judged as such. Moreover, the document must be looked at in the round so as to consider the detailed entries under the individual headings as well as the concluding “Rationale”. I am not satisfied that this document on its own can be impugned on public law grounds.[11]However, there are further documents relating to the May 2007 assessment completed by Janet Bebbington. There is a single page document headed “Registered Nursing Care Contribution”. This is signed by Janet Bebbington. Beside her signature the date 08/05/2007 is given as “Date completed”. The document simply identifies that Mrs Dennison required a medium level of nursing care with a one sentence explanation of why that was. There is also a checklist document headed “WEST YORKSHIRE CONTINUING CARE”. It is described on its face as a screening tool. There is a statement printed on the front which states that it “must always be used before undertaking an RNCC determination”. There are two criticisms made of this document. First, the checklist was completed by Janet Bebbington by ringing the word “No” in relation to every aspect of care but without any comment under any of the headings despite the fact that the document had a section for comments under each heading. In addition, some of the responses on this document appear to be in conflict with the observations on the “Nursing Needs Assessment Tool”. This is a further demonstration of an absence of clinical soundness. Second, the document was signed by Janet Bebbington on the 14th May 2007. That is quite clear from the face of the document. The Claimant argues that this shows that CHC assessment was carried out after the RNCC determination in which event a review of the past assessment was bound to follow.[12]I agree that the combination of the inadequacy of the “Rationale” in the “Nursing Needs Assessment Tool” and the perfunctory and contradictory nature of the CHC checklist document would have led a reasonable and rational PCT (or CCG) to accept the need for a review of the assessment made in May 2007. I also consider that the evidence that the CHC assessment was carried out after the RNCC determination is clear on the face of the documents. Miss Kamm on behalf of the Defendant argues that the evidence of Nadine Newton should persuade me that this was not the position. Nadine Newton, having noted that Janet Bebbington still works for the CCG, states that she “can only surmise that…..Janet Bebbington…..may well have had a number of assessments to do on the same day, coupled with other commitments, may have been interrupted part way through by an admission or discharge problem, or any number of other reasons and that the 14th May was simply the first opportunity she had on her next working day to sign off the document”. I reject Miss Kamm’s argument. Nadine Newton’s surmise is no more than guesswork or speculation. I note that there is no support for it from Janet Bebbington herself. The 14th May document was not detailed, rather the reverse. There is no sensible basis for concluding that its completion might have been interrupted. It was unreasonable and irrational of Nadine Newton to reach the view she did. The essential basis for her decision was that the standard practice involved completion of the CHC assessment before any RNCC determination. Therefore, standard practice must have been followed in this instance. That approach was unreasonable. Nadine Newton gave no consideration to the irrefutable evidence of the documents themselves. A proper application of Paragraph 4.1.6(ii) as above would have led to a review of the assessment in May 2007.[13]On the 14th September 2007 a further assessment was carried out, this time by a nurse case manager named Angela Jackson. There is no evidence from Angela Jackson. However, the retrieved documents show that she completed a “Nursing Needs Assessment Tool” and she made a RNCC determination. It is not necessary to consider the detail of those documents in view of the evidence of Nadine Newton. She says this about the September 2007 assessment. “In terms of the NHS contribution to her care, no screening tool was completed at this review. I would not have expected a screening tool to have been completed as this was simply the first review of nursing needs and there was no evidence of any change in Mrs Dennison’s condition. If there had been any change in her condition, then I would have expected a screening tool to be completed to determine if a referral for a CHC assessment would have been appropriate”. This approach is in flat contradiction of the policy of the PCT as it then applied. I have referred already to the mandatory requirement printed on the face of the screening tool. This mandatory requirement applied to “both new cases and for RNCC reviews”. The September 2007 exercise inter alia was an RNCC review. No reasonable PCT (or CGG) would have adopted the approach taken by Nadine Newton. Proper application of the PCT policy and of Paragraph 4.1.6(ii) would have led to a review of the assessment in September 2007.[14]The final assessment of Mrs Dennison prior to her death was in March 2008. The nurse care manager was Susan Marshall. Susan Marshall not surprisingly has no memory of Mrs Dennison. However, she has been able to review the retrieved documents, to explain her normal practice and to identify from her work diary that she assessed only one individual on the day in question, namely Mrs Dennison. By the time of this assessment (on the 13th March 2008) the Department of Health had issued a standardised CHC checklist. This is the document completed by Susan Marshall in relation to CHC assessment. Susan Marshall also completed a “Nursing Needs Assessment Tool” in the same format as was used in the earlier assessments. The evidence of Susan Marshall as to the process she always adopted is as follows: meet and speak with the person to be assessed; speak to the relevant member of staff at the care or nursing home to discuss the individual concerned and to obtain full care and nursing notes; carry out a nursing assessment; discuss the assessment with the relevant member of staff; complete the CHC checklist; discuss the outcome of that exercise with the individual and/or a member of staff; indicate the level of RNCC/FNC assuming that CHC was not indicated. Her evidence is that the documents confirm that this was the process and procedure followed in the case of Mrs Dennison. The Claimant argues that Susan Marshall’s evidence demonstrates that she failed to follow PCT policy and/or national guidance based on Grogan. The passage relied on reads as follows:
“If a member of staff agrees with the assessment I would then go on to complete the NHS CHC Needs checklist”
. It is submitted that this shows that the RNCC/FNC determination came before the CHC assessment. I disagree. The suggested interpretation of this piece of evidence is overly literal. A nurse care manager engaged in the exercise being undertaken by Susan Marshall simply had to ensure that she excluded CHC before moving on to making a RNCC/FNC determination. The detailed nursing assessment inevitably would be part and parcel of the CHC assessment as well as the later determination. A mechanistic approach was not required, rather an appreciation of the need to decide on the issue of CHC before moving on to consider other support. Susan Marshall’s evidence does not indicate that she lacked such appreciation. Certainly, there is nothing on the face of the PCT records which could have triggered a further assessment pursuant to Paragraph 4.1.6(ii).[15]The Claimant argues that, irrespective of the point under Paragraph 4.1.6(ii), a PCT (of CCG) acting reasonably and rationally would have accepted the need for a further assessment by reference to the PCT records, in particular the CHC checklist. The checklist tool set out the various domains of care and provided for a score in relation to each domain i.e. A (meets CHC need), B (nearly meets CHC need) and C (does not meet CHC need). The tool provided a guide as to the number of A or B scores required to trigger a full CHC assessment and indicated also that the nurse care manager had a discretion to require such an assessment even if the requisite scores were not achieved. The Claimant’s case is that proper consideration of the scores given by Susan Marshall ought to have led the Defendant to conclude that the completion of the checklist was not clinically sound. I have referred already to the letter from the Claimant’s solicitors which set out a detailed analysis of the scores and how the grading could be criticised. That approach was not required by the Defendant when deciding whether a further assessment of CHC needs as at March 2008 was necessary. The Defendant was entitled to consider the scores entered by Susan Marshall and the rationale she gave for her decision which was in these terms:
“Although Lilian has a cancer diagnosis this is not having a significant impact on her domains of care. She has no complexity and the delivery of her care is non-problematic. She does not meet criteria for further assessment but does meet criteria for nursing care, therefore continue with FNC”
. The Defendant acted reasonably and rationally in concluding that no grounds were made out under Paragraph 4.1.6(i) for a further CHC assessment as at March 2008.[16]The Claimant has a subsidiary argument in relation to the position after March 2008. The submission is that this was an unassessed period of care in respect of which the Defendant is under a duty to carry out a further assessment, the Claimant having requested such an assessment within the requisite time frame under the scheme as set out in paragraph 4 herein. I found this submission difficult to follow when it was made. That remains the position. From May 2007 Mrs Dennison was assessed from time to time in respect of her nursing care needs. I have found that some of those assessments were such that a further assessment now should be undertaken by the CCG. Nonetheless, there were assessments and there was no period after May 2007 which represented an unassessed period of care. In March 2008 Susan Marshall determined that Mrs Dennison’s case should be reviewed in 12 months’ time. There is no basis on the evidence for suggesting that Sarah Marshall’s determination at that time was unreasonable or irrational. There is no evidence that at any time up to the date of Mrs Dennison’s death there was any indication from anyone concerned with Mrs Dennison’s welfare – whether the nursing home or her relatives – that the position had changed to such an extent that the PCT ought to review the determination made in March 2008. Were the Claimant’s argument to be tenable, it would mean that a further CHC assessment would be necessary in relation to any individual in Mrs Dennison’s position, irrespective of previous assessments. I am satisfied that “previously un-assessed periods of care” relates either to cases where no assessment at all has been carried out or to cases where an assessment has provided for a review at a given date but that review has not been conducted so as to lead to effective expiry of any assessment. The Claimant’s subsidiary argument is wholly unarguable.[17]It follows that there is no basis for judicial review of the decision to refuse a further CHC assessment for Mrs Dennison from the 13th March 2008 onwards. I conclude that there is no arguable case and I refuse permission to apply for judicial review in relation to that part of the overall decision of the Defendant. There is an arguable case in relation to the assessments in May and September 2007. I give permission in relation to the decision not to review those assessments. Moreover, subject to matters of discretion, I am satisfied that this decision was irrational and unreasonable so as to warrant judicial review of it.[18]The first matter relating to discretion arises from the terms of the Defendant’s decision in relation to any further assessment. The initial decision letter of the 29th May 2013 was accompanied by a document attributed to Caroline Parker, a nurse reviewer. That document noted the agreement to undertake a review of Mrs Dennison’s care needs from January 2006 to May 2007. It then said this:
“If full CHC funding is evident on the 07/05/2007 then we will of course look further on into the requested review period in order to establish if eligibility exists after the date of 07/05/2007”
. The evidence does not suggest that Mrs Dennison suffered a sudden and dramatic downturn in her physical and mental condition in May 2007, rather her condition was relatively static throughout. There is an argument for concluding that the review agreed by the Defendant in reality would achieve the purpose sought by these proceedings. If funding were evident in May 2007, it almost inevitably would follow that eligibility continued until the date of Mrs Dennison’s death. Conversely, if Mrs Dennison did not attract CHC funding in May 2007, it is most unlikely that she would have done so thereafter. Had this point been fully argued, it may have persuaded me to withhold judicial review of the assessments in May and September 2007. Since it was not, I do not propose to withhold judicial review on this ground. It may be relevant on the issue of costs.[19]The other issue concerning discretion was argued, namely that the Claimant had an alternative remedy by way of application to the Parliamentary and Health Service Ombudsman. Generally any question of an alternative remedy is addressed at the permission stage. Because of the way in which these proceedings have been case managed, it is more realistic in this instance to consider whether the existence of the alternative remedy should lead me to withhold any remedy from the Claimant. The cases cited at 36.3.8 of the Sixth Edition of Judicial Review Handbook (Michael Fordham Q.C.) support that approach. The Defendant points out that the scheme to which these proceedings relate had its origins in a report from the Health Service Commissioner. This indicates that the Parliamentary and Health Service Ombudsman (as the successor the Health Service Commissioner) is well equipped to deal with the complaint made in this case and, if necessary, to provide general guidance on how the review scheme should operate. In those circumstances, the Claimant ought to have engaged with the Ombudsman and he should not have any remedy in these proceedings. I consider that, whilst the Ombudsman possibly could have dealt with the issue of whether the Claimant was entitled to the review he sought, the case has required a consideration of the ambit of the national guidance issued in October 2012 and its proper interpretation. Those are matters properly the subject of judicial review in this Court. I do not withhold the relief due to the Claimant by reason of the failure to pursue a potential alternative remedy.[20]It follows that I quash the Defendant’s decision of the 29th May 2013 as confirmed on the 21st October 2013 to refuse a further assessment of the CHC needs of Mrs Lily Dennison in respect of the period 7th May 2007 to 13th March 2008. I do not quash the decision in respect of the period 13th March 2008 to 13th October 2008. Doubtless the approach adopted by Caroline Parker in May 2013 will be adapted so that, if it is determined that Mrs Dennison was eligible for CHC funding on the 13th March 2008, the Defendant then will consider whether that eligibility continued thereafter. I shall hear from counsel as to the precise terms of the order and as to recovery of costs.

Cited in 1 later judgment