NHS Continuing Healthcare: A Legal Analysis of ICB Duties and Discretion

NHS Continuing Healthcare (CHC) is a comprehensive package of care arranged and funded solely by the NHS. When an individual is found eligible, the NHS is responsible for the full cost of their care, including accommodation.

For many, the CHC process is perceived primarily as a clinical assessment of health needs. However, the ICB’s duty to assess is fundamentally a legal one, governed by the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (the "Standing Rules").

This guide provides an analysis of the ICB duties imposed on Integrated Care Boards (ICBs) and the extent of their administrative discretion in determining eligibility.

The primary source of law is the 2012 Standing Rules. While the "National Framework" is the most cited document in assessments, it is statutory guidance, not legislation. This distinction is critical for practitioners and families alike: the ICB’s legal obligations are rooted in the Regulations, while the Framework provides the methodology and procedural expectations they are expected to follow.

Under the Health and Care Act 2022, the ICB duties previously held by Clinical Commissioning Groups (CCGs) were transferred to Integrated Care Boards (ICBs). Despite this structural change, the underlying legal ICB duties regarding CHC assessments remain consistent with the 2012 Standing Rules.

The ICB’s obligation to act is defined by Regulation 21(2) of the Standing Rules. This regulation mandates that an ICB must take "reasonable steps to ensure that an assessment of eligibility" is carried out whenever it appears to the body that "there may be a need for such care".

Discretion in Triggering the Assessment

The use of the phrase "appears to that body" grants the ICB a degree of administrative discretion at the very outset of the process. While the "may be a need" threshold is legally distinct from the "primary health need" threshold for eligibility, the ICB retains the power to determine whether the information presented to them is sufficient to trigger their statutory duty to investigate further.

However, this is not an unfettered power. If an ICB is on notice of a potential need - for example, through a referral from a GP or hospital discharge team - and fails to initiate an assessment, they may be found in breach of their public law duties. The duty is to take "reasonable steps," which implies a proactive rather than a purely reactive stance by the ICB.

Under Regulation 21(4), if an ICB elects to use a screening process to determine whether a full assessment is required, it must use the "NHS Continuing Healthcare Checklist".

The Legal Weight of a Positive Checklist

A point of significant legal complexity is whether a positive Checklist outcome triggers an automatic statutory right to a full assessment. The Standing Rules do not expressly contain such a command. Instead, the "compulsion" arises from a combination of the ICB’s duty under Regulation 21(12) to "have regard to" the National Framework and general principles of administrative law.

The National Framework states that a positive Checklist indicates that the individual "requires a full assessment." While the High Court in R (Gossip) v NHS Surrey Downs CCG [2019] confirmed that the Framework is guidance and not "hard-edged" law, an ICB cannot simply ignore its provisions. To "have regard to" guidance means the ICB must take it into account and have a "cogent reason" for departing from it.

Therefore, while a positive Checklist is not a statutory "on/off" switch, an ICB that fails to proceed to an assessment following a positive Checklist without a robust, evidenced justification is likely to be acting irrationally or in breach of its duty to have proper regard to statutory guidance.

The MDT is the core mechanism for evaluating needs and is the primary evidence-gathering stage of the process. Under Regulation 21(5), the ICB must ensure that an MDT:

1. Undertakes an assessment of needs that is an accurate reflection of the individual's requirements at the date of the assessment.
2. Uses that assessment to complete the Decision Support Tool (DST).

Composition of the MDT (Regulation 21(13))

The law prescribes the minimum constitution of an MDT to ensure a balanced view of health and social care needs. It must consist of at least:

• Two professionals from different healthcare professions; OR
• One professional from a healthcare profession and one person responsible for assessing an adult’s needs for care and support under Section 9 of the Care Act 2014 (typically a social care professional).

The ultimate question in any assessment is whether the individual has a "Primary Health Need." This concept is codified in Regulation 21(5)(b)(6) and (7), which mirror the "incidental or ancillary" test established in the seminal Court of Appeal case of R v North and East Devon HA ex p Coughlan [1999].

The Incidental or Ancillary Test

The ICB must determine whether the nursing or other health services required are:

• More than incidental or ancillary to the provision of accommodation which a social services authority is under a duty to provide; or
• Of a nature beyond which a social services authority could be expected to provide.

This test is the primary site of ICB discretion. Crucially, "health needs" and "social care needs" are not defined in primary legislation. There is no statutory list that categorises specific tasks or conditions into one camp or the other. Because the boundary is vague and open to wide interpretation, the ICB holds significant power to define the limits of responsibility.

The Four Characteristics - A Framework for Discretion

Because the Coughlan test is abstract, the Department of Health developed the "Four Key Characteristics" (Nature, Intensity, Complexity, and Unpredictability) to provide a structure for exercising this discretion.

• Nature: The type of need and the quality of interventions required.
• Intensity: The extent and severity of needs and the sustained nature of the support required.
• Complexity: How different needs interact and the level of skill required to manage them.
• Unpredictability: The level of risk and fluctuation in the individual’s condition.

While these characteristics help to ground the decision, they remain interpretive. One assessor’s "complex" need is another’s "stable social care" need. This inherent subjectivity is why the concept of a "Primary Health Need" remains the most contentious part of the CHC process; it is a legal conclusion drawn from interpreted clinical data.

The relationship between the Standing Rules (the law) and the National Framework (the guidance) requires careful navigation. Under Regulation 21(12), an ICB is required to "have regard to" the National Framework.

The High Court judgment of R (Gossip) v NHS Surrey Downs CCG [2019] EWHC 3411 (Admin) provides the definitive analysis of this duty. The Court established that:

• The "have regard to" duty does not mean the ICB must follow the National Framework in every detail. It is not a "hard-edged" legal obligation to achieve a specific outcome suggested by the Framework's scoring tools.
• Critically, "having regard to" means the ICB cannot simply ignore the Framework. While they can depart from its recommendations, they must do so rationally. The National Framework itself limits this discretion, stating that an ICB should accept an MDT recommendation except in "exceptional circumstances."

Regulation 21(5)(b) explicitly states that the "relevant body" (the ICB) makes the eligibility decision, using the MDT's DST to inform that decision.

As the statutory decision-maker, the ICB holds the final responsibility for the eligibility determination. Under the principles reinforced in Gossip, the ICB is permitted to reach a decision that differs from the MDT recommendation or the indicative outcome suggested by the DST. However, this power to override clinical findings is anchored in the "have regard" duty. The National Framework creates a strong expectation that the ICB will follow the MDT’s lead; therefore, if the ICB chooses to exercise its discretion to depart from that recommendation, it must provide a transparent and reasoned justification. Without a clear explanation as to why the clinical evidence supports a different conclusion under the Coughlan test, the ICB's final decision will be susceptible to challenge.

The fundamental legal principles governing NHS Continuing Healthcare relate primarily to the manner of the assessment - ensuring it is contemporaneous, accurate, and conducted by a lawfully constituted MDT. However, as the law currently stands, the ICB retains an immense amount of power to decide the actual outcome and the extent to which it follows statutory guidance.

Given the breadth of this discretion, exhausting the appeals process is often a necessity for families. If local resolution is unsuccessful (which data shows is often the case) then the case can be referred to an Independent Review Panel (IRP) convened by NHS England. The IRP constitutes its own Multi-Disciplinary Team to review the evidence and makes its own recommendations to the ICB regarding whether a "Primary Health Need" exists.

While the IRP is intended to provide a layer of independent oversight, the current system places families in an inherently difficult position. Because the review is conducted within the same institutional framework that manages the funding, there is a perception that the process amounts to the NHS "marking its own homework." Furthermore, a growing trend indicates that IRPs frequently fail to hold ICBs to account when they depart from clinical recommendations without robust, evidenced justification. Until there is a fundamental change in the law at a parliamentary level to refine statutory definitions or alter the decision-making hierarchy, a significant degree of uncertainty and subjectivity will remain inherent in the CHC process.