Commissioner for Older People’s Judicial Review Update

13th July 2023

A High Court Judge has quashed the Department of Health’s Continuing Healthcare Policy in a landmark legal challenge brought by the Commissioner for Older People for Northern Ireland, Eddie Lynch.    

The ruling was made on Friday 30 June by Mr Justice Scoffield who examined the impact and delivery of both the 2010 Continuing Healthcare Policy and the new policy which came into effect in 2021.

Continuing Healthcare is a policy which is designed to ensure that everyone, no matter their age or where they reside, receives free healthcare. Healthcare is required by law to be provided free of charge. This means that the most acutely ill people in society should not contribute to their care home costs if their care needs are assessed as being primarily healthcare needs as opposed to social care needs.

The Commissioner sought the views of the court on behalf of his client, Robin McMinnis, a 75 year old man who is quadriplegic, living with  multiple sclerosis and other complex healthcare needs.  He was denied continuing healthcare under the original 2010 policy and subsequently has been self-funding his healthcare in a care home.  But this policy, the Commissioner argued, lacked any clear eligibility test or methodology for assessment as well as any sufficient guidance.  The Commissioner argued that the lack of guidance and clear procedure for applicants rendered it inaccessible to anyone who may qualify for it.

Then in 2021, the Department of Health changed the policy in such a way that the Commissioner argued was unlawful and unreasonable and effectively eradicated any chance of anybody receiving continuing healthcare funding in the future. 

The change introduced a single criteria question where people are asked: “Can your care needs be met properly in any other setting other than a hospital?” if the answer is yes, then the person is deemed not eligible for continuing healthcare.  This means those with acute clinical needs, with assets worth more than £23,250 would need to pay for their own continuing healthcare.  Healthcare that would be free if you were being treated in hospital. 

The Commissioner argued that this single eligibility criteria question essentially eradicated any chance of a person with serious clinical needs being able to receive continuing healthcare funding in the future, because the type of care that care homes can provide has advanced with clinical healthcare needs now delivered and managed by a range of care homes.

The Judicial Review examined the impact and delivery of both the 2010 policy that Mr McMinnis was assessed under and the new policy.

The Judge determined that Mr McMinnis’ application for continuing healthcare was “procedurally unfair” when it was refused by the Belfast Health and Social Care Trust. The failure of the Department of Health to provide guidance on the application of the policy to the Trust was also criticised.  The Judge ruled that Mr McMinnis must be re-assessed using a lawful process and following guidance from the Department which he ruled must now be issued.

The Judge also quashed the new 2021 policy “on the basis that it was adopted in breach of its obligation to have due regard to the need to promote equality of opportunity between persons of different age under section 75 of the Northern Ireland Act 1998” and that “the screening exercise undertaken did not begin to properly consider the true impact of the new policy on older people.”

Giving his reaction to the judgement, the Commissioner for Older People, Eddie Lynch, said:

Firstly, I am delighted for my client Robin McMinnis, who has fought tirelessly for the fair assessment that should have been granted to him six years ago.  This is also a win for the many older people who have contacted my office over the past number of years in relation to issues with continuing healthcare assessments, all of whom will now be entitled to receive the fair assessment they deserve.

“I am also delighted that the Judge has quashed the 2021 policy, making particular reference to the failure to properly assess the detrimental impact of such a policy on older people, which I regard as a monumental success, not least because Northern Ireland lacks any age discrimination legislation.  This sends a very clear message that policies which adversely impact older people will not go unchallenged.

“The 2021 Policy has been abolished and it is now up to the Department of Health to issue guidance on the application of the 2010 Policy and to work urgently with the Trusts to put in place a lawful process, which will fairly assess an older person’s needs.  This will ensure those with genuine healthcare needs receive the free healthcare they are entitled to, that is free to the rest of us.

Robin McMinnis said:  “It has been a long journey for me personally over the past six years with many setbacks.  It has been a matter of principle for me knowing that many others have been disqualified or were unaware of the Continuing Healthcare Policy.

“I’d like to think we have exposed procedural weaknesses and system flaws.

“I would like to pay tribute to the Commissioner, Eddie Lynch, who genuinely cares about older people and in my opinion is a fine champion of their cause.  Without his support I would have found it impossible to pursue the legal course which culminated in the Judicial Review.”

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