R (Harrison) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judgment Date | 23 March 2009 |
| Neutral Citation | [2009] EWHC 574 (Admin) |
| Docket Number | Case No: CO/4680/2008 and CO/4923/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 March 2009 |
[2009] EWHC 574 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr. Justice Silber
Case No: CO/4680/2008 and CO/4923/2008
Paul Bowen (instructed by Switalskis Solicitors LLP and The Disability Law Service) for the Claimants Mr. Harrison and Mrs. Garnham respectively
Eleanor Grey and Emma Dixon (instructed by Treasury Solicitor) for the Defendant in both claims
The interested parties were neither present nor represented at the hearing Written submissions were made by David Wolfe on behalf of the Equality and Human Rights Commission
Hearing dates: 12 and 13 February 2009
Written submissions served until 20 February 2009
MR JUSTICE SILBER:
I Introduction
1. The background to the present applications is that the policy of the Secretary of State for Health (“the Secretary of State”) set out most recently in paragraph 77 of The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care 2007 (“the Framework Guidance”) does not allow the making of direct cash payments to individuals receiving healthcare services under the National Health Service Act 2006 (“the 2006 Act”). Such cash payments would have enabled the recipients to make their own arrangements for obtaining their medical care.
2. The issues raised on this application are:—
(a) whether this policy is unlawful as it is based on the Secretary of State's erroneous interpretation of the 2006 Act, which is that no power is conferred upon him to provide healthcare services by way of direct payments (“The Construction Issue”) (see paragraphs 30 to 69);
(b) (if contrary to the first submission of the claimants those provisions do not allow the making of direct payments to individuals receiving healthcare services under the 2006 Act) these provisions infringe the claimants’ rights under articles 8 and 14 of the European Convention of Human Rights (“ECHR”) (“The ECHR issue”) (see paragraphs 70 to 112); and, if so
(c) whether the provisions of the 2006 Act have to be read and given effect pursuant to section 3 of the Human Rights Act 1998 (“ HRA”) so as to give the Secretary of State such powers so as to be compatible with the claimants’ rights under the ECHR (“The Section 3 issue”) (see paragraphs 113 to 114).
3. I gave permission to both claimants to pursue their claims at the start of the present rolled-up hearing. It is common ground that the issues raised on the application of both claimants are the same and that the outcome of each of their applications must therefore also be identical. None of the interested parties nor Islington Primary Care Trust have adduced any evidence or made any submissions. Some written submissions were received from the Equality and Human Rights Commission (“EHRC”). I must express my gratitude for the admirable written skeleton arguments and submissions from counsel.
4. In this judgment, I propose first to set out details relating to the claimants (paragraphs 6 to 21) and then I will describe the policy under challenge and the statutory landscape (paragraphs 22 to 29) before considering the construction issue, the ECHR issue and the section 3 issue.
5. There is a Health Bill presently before Parliament which contains provisions which would empower (but not oblige) the Secretary of State to make direct payments to patients. These provisions would permit the making of regulations (a) about direct cash payments; and (b) about a pilot scheme for marking direct cash payments. I do not consider that the existence of these provisions assists in resolving the present dispute for reasons which I will explain. Indeed even if it is enacted in its present form, there is no certainty as to whether or when the claimants might receive cash payments. I turn now to describe the claimants’ reasons for wanting cash payments so that they can use the money to obtain their own medical care.
II The Claimants
(i) Mr Steven Harrison
6. Mr Steven Harrison is a 42 year old man, who is a C5-C6 spinal tetraplegic and this means that he is paralysed in his lower limbs and partially paralysed in his upper limbs as a result of a diving accident in 1998. He has limited coordinated movements of his upper arms and does not have any hand dexterity. In consequence, he needs a lot of assistance with his personal needs including bathing, changing, bowel care, getting in and out of bed, preparing food and drink as well as in trips around his home. He also suffers from autonomic dysreflexia, a life-threatening condition associated with spinal injuries and in consequence he requires attention during the night when he is prone to attacks.
7. Mr Harrison is determined to live as full a life as possible. He finds the delivery of personal care extremely intrusive and in order to retain his dignity, it is important for him to work with carers who he trusts and with whom he is comfortable. It takes time to build up the kind of rapport with carers that is required by Mr Harrison. Indeed the longer that Mr Harrison knows his carers, the more able they are to anticipate and to respond to his needs. In consequence with carers that he knows and trusts, Mr Harrison is able to live a relatively full life attending university and going on holiday and other activities. This means that it is important that he retains control of the services that he is provided with in order to ensure that his needs are met.
8. Until July 2005, Mr Harrison was provided with direct payments by his local authority Social Services department to engage the service of a night-time carer. After July 2005, a sleep-in carer was not required as Mr Harrison's fiancée began to live with him. In January 2006, Mr Harrison's fiancée moved out of the residence and during a meeting regarding his care at the time, he asked for direct payments to be reinstated by the local authority so that his night-time care could be resumed. This did not happen and accordingly in May 2006 Mr Harrison again asked the local authority for night-time care. As a result of this request, a new assessment of his care needs was undertaken in the form of a community care assessment. It was agreed as a result of this assessment that night-time care was a necessity for Mr Harrison. The view of the local authority was that Mr Harrison's need for night-time care was of such a nature that this was a “ health” need and so this was the responsibility of the National Health Service.
9. A continuing care assessment was completed by Wakefield Primary Care Trust (“PCT”) on 13 June 2006 which concluded that Mr Harrison did not meet the threshold for a fully-funded package of NHS continuing care but his needs for night-time care were such that this was a “ health” need for which the NHS was responsible with the social care being provided by the local authority. Mr Harrison requested that such night-time care be implemented through the re-instatement of direct payments but he remained without night-time care until November 2006. It was then decided that night-time care could not be provided by direct payments but he agreed a compromise under which care was commissioned from his preferred providers although this was not his preferred option.
10. Mr Harrison has explained that this has not been a successful compromise as he has had an increasing number of difficulties in receiving an adequate level of care from the staff employed by his preferred providers. Indeed he was left without care in September 2008 for 21 nights. The preferred providers served notice to withdraw their services with effect from 16 November 2008. After representations had been made by Mr Harrison at a meeting with the PCT and with the local authority representatives, it was agreed that he could return to social services care for his night-time provision and therefore once more access through the personal assistance of his own choosing through direct payments.
11. Difficulties with Mr Harrison's bowel management continued and the solution of the PCT was for this to be provided by the District Nurse or by an alternative agency. Unfortunately neither solution allowed Mr Harrison the independence which he desired and which could only be met by providing him with direct payments. Mr Harrison has now chosen to pay his night-time carers for the additional service out of his social security benefits notwithstanding that he is entitled to receive it free from the National Health Service.
12. In spite of requests from Mr Harrison's solicitors to persuade his responsible PCT that it had power to make direct payments, it has stated that on legal advice it has no such power. After further letters were sent to the PCT and to the Secretary of State, both of them responded by communications from their solicitors stating that the relevant legislation conferred no power to make direct payments and in particular that sections 2 and 12 of the 2006 Act did not have that effect.
(ii) Mrs Valerie Garnham
13. Mrs Garnham has been disabled since birth when she was born with a degenerative muscular condition which has caused a weakness and wasting of her muscles. She has had to use a wheelchair for all her life and she has always suffered from severe breathing problems. Since...
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