The Department of Health acted lawfully in introducing a new policy on paying for care costs in Northern Ireland’s nursing homes, the Court of Appeal ruled on Wednesday.
Senior judges overturned a previous order which had quashed the scheme due to an alleged failure to properly consider the impact on the elderly.
The verdict was reached in a legal battle over the concept of continuing health care (CHC).
The initiative involves an assessment of whether to meet the costs of social care which is primarily driven by health needs.
Changes to eligibility for the CHC scheme introduced in 2021 used a single criteria question to check if care needs can properly be met in any setting other than a hospital - where there is no fee.
Anyone answering ‘yes’ would be placed in a nursing home with a charging policy applied.
With all older people whose assets exceed £23,250 having to pay for social care costs, the new policy effectively restricted CHC in Northern Ireland to those in hospitals.
A two-tier system also developed where a previous scheme from 2010 remained in place for applications pre-dating February 2021.
Judicial review challenges to issues around CHC were mounted by the Commissioner for Older People in Northern Ireland and Robin McMinnis, a quadriplegic pensioner with complex medical needs.
Lawyers representing the Commissioner, Eddie Lynch, argued that the revised 2021 policy, would result in some having to pay for health needs, rather than personal social services, well in excess of the £100 weekly nursing contribution.
It was contended that the Department had breached its legal obligation to promote equality of opportunity between people of different ages under Section 75 of the Northern Ireland Act 1998.
In June last year the High Court quashed the decision to adopt the 2021 policy based on a finding that the true impact on older people was not taken into account.
A judge also declared that the Department had irrationally and unlawfully failed to provide guidance to Northern Ireland’s five Health and Social Care Trusts on determining eligibility for maintaining CHC under the previous 2010 policy.
That determination was challenged on the basis of insufficient evidence to support the conclusion that Section 75 had been breached.
Backing those submissions, the Court of Appeal held that under the relevant legislation the complaints should have been examined by the Equality Commission rather than through judicial review proceedings.
“The diagnosis of deficiencies of this nature was plainly a matter for the Commission and not the court,” Lord Justice McCloskey said.
“The High Court should not have entertained the section 75 challenge.”
He confirmed: “The order quashing the 2021 policy cannot be sustained.”
In a separate finding, the 2010 policy was held to have gone beyond the Department’s statutory powers by enabling some people to receive social care in an accommodation setting free of charge.
Based on that conclusion, the Department was under no legal obligation to publish guidance relating to the earlier scheme, the Court of Appeal determined.
Lord Justice McCloskey stated: “The Department’s pursuit of a new policy development process and consultation exercise which culminated in the adoption of a new CHC policy in 2021 and its associated declination to issue guidance on the (ultra vires) 2010 CHC policy were not infected by irrationality.
“The declaratory order of the High Court cannot therefore be sustained.”
No appeal was brought against a separate High Court order made against the Belfast Trust to reconsider Mr McMinnis’ application for CHC under the 2010 policy.
The 75-year-old former high-ranking civil servant suffers from a serious degenerative condition which has left him paralysed and bed-bound.
Despite retaining full cognitive functions, his physical movement is restricted to his head and eyes and he requires specialist care with every physical aspect of his life.
In 2017 he moved permanently to the Somme Nursing Home in east Belfast, where the annual cost of his case is approximately £25,000.
Mr McMinnis challenged the Trust for denying his CHC application in May 2021, claiming it was procedurally unfair and irrational.
The High Court quashed that decision after finding no clear and accessible methodology was applied to the question of his eligibility under the 2010 policy.
As part of Wednesday’s Court of Appeal ruling, Lord Justice McCloskey confirmed: “Mr McMinnis, therefore, succeeded at first instance. There is no appeal against this quashing order.”
