Permission for Judicial Review refused

Dear Supporters,

I am very sorry to tell you that the Appeals Judge has refused permission for the Judicial Review to proceed. Regrettably, we have now exhausted the appeals process.

Below is the Judge's summary outlining the reasons for refusal and my comprehensive and damning criticism of the Judge's decision sent in a press release this morning.

Press Release by Rear Admiral Mathias

The Judicial Review application into the £multi-billion NHS Continuing Healthcare (CHC) Scandal - which has caused emotional and financial devastation to many thousands of old, vulnerable and very ill people.

It is with mixed emotions of outrage and sadness that I report that the Appeals Judge (the Rt. Hon. Lord Justice Bean) has refused permission for a Judicial Review into the NHS CHC scandal. I attach his one page ruling. This will be dreadful news to the many thousands of desperately ill people who have been unlawfully denied CHC funding and who have helped fund this legal challenge.

The Judge's ruling on the legal issues of 'Delay' and 'Standing' means that irrespective of the evidence, in practice it will almost be impossible for any organisation or member of the public to make a legal challenge, in order hold the NHS and DHSC to account for systemic and widespread unlawfulness in denying tens of thousands of very ill and vulnerable people huge sums of healthcare funding to which they are legally entitled, with the resultant emotional and financial devastation.

The Judge also makes a staggering statement when stating: "I note that the Public Accounts Committee (PAC) has found that there are systemic failures in the funding of patients with continuing healthcare needs. If they and the Clamant (sic) are right, the remedy is in the political sphere, not the courts".

The PAC report that the Judge refers to, which was submitted as evidence, states:

"NHS England is not adequately carrying out its responsibility to ensure CCGs are complying with the legal requirement to provide CHC to those who are eligible. Patients’ likelihood of getting CHC funding depends too much on local interpretation of assessment criteria, due to poor quality assessment tools and inadequate training. There is huge variation between CCGs in access to funding.”

So the PAC has reported that CCGs are not complying with the law but it has no powers of legal enforcement. So how can the Judge possibly conclude that the remedy is in the political sphere and not the courts? CHC funding is a matter of law and is not discretionary. If the government considers that CHC funding is unaffordable, it should change the law, not allow the NHS to break it. But it won't do that because it would be politically unacceptable to compromise the founding principle of the NHS that healthcare is free at the point of delivery

Because they knew they couldn't, at no stage of the JR application process did NHS or Government lawyers contest the NHS data that was given in evidence. This evidence shows a significant and inexplicable decline in CHC eligibility numbers over the last few years, when they had previously been rising due to an ageing population. They also provided no explanation for the huge postcode lottery where, in one part of the country, a person is 17 times more likely to receive CHC funding than someone living elsewhere. These huge variations cannot possibly be explained by socio-economic or health demographics. NHS and government lawyers have used technical legal arguments to block this Judicial Review which the Judge has accepted, rather than allowing the flexibility permitted by legal precedence. I wonder if the Judge read the 800 pages of evidence, including a selection of heart-rending stories from thousands of very ill people and their families who helped fund this legal challenge. I also suspect that any Judge who had personal experience of the unlawful CHC process would have made a different decision.

Having done my best to expose this £multi-billion scandal that has caused so much emotional and financial devastation to many thousands of the most vulnerable people in our society, I now hand over the baton to you - the national media. You have all reported on the CHC scandal over the past few years and as the guardians of democracy and governmental accountability you must now decide whether sustained and high profile coverage will achieve a more successful outcome. At a personal level, there is a very high probability that one day you or a loved one will be affected by this CHC scandal, with potentially devastating financial and emotional consequences.

Having worked at senior level in Whitehall on complex policy formulation, I have now come to the dreadful conclusion that we now live in a country where our biggest public body and a Department of State can break the law on a massive scale and with total impunity. This is the sort of conduct expected of a failing and corrupt state. It also points to the woeful failure and ineffectiveness of publicly funded scrutiny bodies such as the PAC, CQC, PHSO and EHRC, all of which have been highly critical of the unlawful CHC process and all of which I have engaged with. The CHC Alliance (charities such as Parkinsons, MND, Age UK and the Alzheimer's Society) have also expressed serious concerns about the CHC system, with the resultant devastating impact upon many thousands of its members. With its huge resources, surely it is this organisation that should have initiated legal action - and not left this to a member of the public.

One final point. I am sure you, like me, have been appalled by the failure of government ministers, politicians from all parties and other so called 'experts' to even mention NHS CHC funding during the recent exhaustive and contentious debates about the provision of social care funding reform. CHC funding is the critical (and failing) NHS interface with social care and the level of ignorance on this subject is quite staggering. Many state that those who suffer from dementia are not eligible for NHS funding which is not correct. After an exhausting two year battle with Wiltshire CCG, which was operating an aggressive CHC avoidance regime, I eventually recovered £200,000 of retrospective funding for my mother's care - she suffered from severe dementia.

If required, there is more detailed information below.

Philip Mathias

Rear Admiral (rtd)

Standing, Delay and declining CHC eligibility numbers

Delay: I believe the Judge's proposition that I could have simultaneously launched a Judicial Review whilst fighting my mother's case is deeply flawed. It took me two years, over 100 letters and three appeal meetings to win my mother's case. It would have been an impossible task to do this, whilst at the same time gathering and analysing (at a national level) the huge quantity of complex data and evidence (800 pages of it), whilst forming a campaign team, engaging a QC and solicitor and raising £126,000 to launch a Judicial Review to challenge systemic failure - a monumental task. There is legal precedent that allows for Delay beyond three months, on the principle that what really matters is upholding the rule of law, particularly if it is of significant public interest - which this case manifestly is. The Judge chose to ignore this.

Standing: I also believe the Judge's proposition that a solicitor could mount a challenge of systemic failure based on 'one or more clients' is equally flawed. It wouldn't prove systemic failure at a national level. Also, a law firm that specialises in CHC, of which there are many, would also have no incentive to do this because if the systemic failure and unlawfulness of the CHC system was corrected, they would lose a huge amount of business, supporting desperate families who have been unlawfully denied funding.

This graph shows the declining numbers of people found eligible for NHS CHC funding

Note: in 2017 the NHS introduced an additional metric (activity levels) to measure CHC eligibility - probably to conceal declining numbers.

Postcode Lottery: There is also extensive NHS data (available if required) that shows the huge CHC funding postcode lottery. This means that people who live in one part of the country are significantly more likely to receive NHS funding (different to social care funding) than someone living elsewhere, even though the socio-economic and health demographics are similar. This means that some people have all their healthcare paid for while others, with the same healthcare needs, suffer the emotional and financial devastation of having to deplete their entire life savings and sell their homes.

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