R (Keating and Others) v Cardiff Local Health Board
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Lady Justice Arden,Lord Justice Longmore |
| Judgment Date | 06 July 2005 |
| Neutral Citation | [2005] EWCA Civ 847 |
| Docket Number | Case No: C1/2005/0750 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 July 2005 |
[2005] EWCA Civ 847
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Moses
Lord Justice Brooke
Vice-President of the Court of Appeal (Civil Division)
Lady Justice Arden and
Lord Justice Longmore
Case No: C1/2005/0750
Richard Drabble QC (instructed by the Public Law Project) for the Appellants
Javan Herberg (instructed by Welsh Health Legal Services) for the Respondents
Sarah Moore (instructed by the Office of the Solicitor, Department of Health) for the Department of Health as Interveners
This is an appeal by the claimants, who are clients of Riverside Advice Ltd ("Riverside"), from a judgment of Mr Justice Moses on 23 rd March 2005 ( [2005] EWHC 559 (Admin)) when he dismissed their application for judicial review against the defendants, the Cardiff Local Health Board, in relation to their refusal to provide funding for the Riverside Advice project, otherwise than through a special "Flexibility Fund" administered jointly with the local authority. Because the judge's interpretation of ss 1–3 of the National Health Service Act 1977 ("the 1977 Act") was said to have widespread ramifications, we permitted the Department of Health to intervene in this appeal with written and oral submissions. We also received written submissions, in the form of short letters, from both the Welsh Assembly and Mind, the well-known mental health charity.
I draw the facts of the case largely from the judge's admirably clear judgment. Riverside is running a project called a "Welfare Rights Project for Clients Experiencing Mental Health Difficulties". It is designed for those who suffer from mental health illness. Its purpose is to ensure that people with mental health difficulties may call on specialist support. Riverside can respond to their needs and to help them obtain the benefits to which they are entitled. From April 2003 onwards it received funding from the defendant board, which was later extended until April 2005.
In June—July 2004 the Cardiff and the Vale of Glamorgan Local Health Boards conducted a joint review of voluntary services, in which they concluded that Riverside had met all the criteria they specified, otherwise than in minor and immaterial respects. Riverside achieved the highest achievable score within the review, which recommended a new three-year agreement. At the meeting of the review panel on 12th July 2004, however, the defendants' director of finance took the view that it would be ultra vires for the defendants to fund the project any further.
As a result of this decision, funds could now only be provided to Riverside by the defendants for the 2005–6 period from a NHS Flexibilities Grant. This grant was available from a fund known as the Flexibilities Fund, which is jointly administered by the defendants and the local authority. However, the amount available from this fund for 2005–6 was only about two thirds of the sum the project had previously been receiving, leaving a shortfall of about £18,000. We have been told that in future years this shortfall would not necessarily continue, because the Flexibilities Fund would not then be constrained in the amount it could provide as a result of other commitments it had previously made.
The issue at the centre of this appeal does not relate to the value of Riverside's work, which receives universal praise: the defendants have told us that there is no issue as to the valuable nature of its activities in improving the quality of life for those with mental health difficulties. It relates instead to the question whether the defendants are correct when they says that it would be outwith their powers if they were to continue to fund this project. Their view of the law is not shared by the Department of Health or by the Welsh Assembly, although neither had articulated their thinking on the matter until after they had had an opportunity to study a copy of Moses J's judgment.
The aims of the project are embraced by Riverside's purposes as set out in its Memorandum of Association:
"The relief of poverty through the provision of free legal advice and assistance to persons who, for reasons of poverty, would otherwise be unable to obtain such advice, and providing such persons with services they could not otherwise afford through lack of means."
The only service level agreement that exists between the defendants and Riverside identified Riverside's services as "Welfare benefits advice to people with mental health problems." The objectives of the agreement were described as:
"… to secure, for the residents of Cardiff, the provision of [a] range of health care for defined client groups and specialities."
The agreement professed that it was "underpinned" by the mutual commitment of both parties to ever improving health. The services to be provided were described as including specialist expertise and knowledge of the needs of people with mental health difficulties and their entitlement to social security benefits; representation at Social Security Appeal Tribunals and to Commissioners; flexible service delivery to respond to the needs of the client group (including home visits, hospital visits and meetings at other appropriate venues); and consultancy, telephone advice and support to people working with clients with mental health difficulties.
Riverside's end of year report for the period between 1 st March 2002 and 31 st March 2004 described the project as being all about providing advice to those suffering from mental health in relation to their benefits. The report identified the strategies and plans pursuant to which Riverside undertook its work. In particular it quoted the Minister for Health and Social Services who had written in her Foreword to a publication called "Improving Health in Wales":
"Tackling ill health means addressing these challenges including economic and social inequality. ….. The experience of poverty for some of our citizens often lies at the root of ill health, unhealthy lifestyles and contributes to a sense of hopelessness."
The need to resolve the difficulties of the mentally ill when they seek to access the benefits to which they are entitled, and thereby prevent their health from deteriorating due to stress, was alluded to by a solicitor at the Public Law Project who is acting for the claimants in these proceedings. She says of the project:
"Not only is it a specialist service in terms of the types of benefits applications and appeals … but also because of the specialist support given to people with mental health difficulties. The added stress and pressure of losing income through benefits, months of uncertainty, and appearing at appeals can lead to a deterioration in the mental health of the clients and they need expert help. That is what the project provides. There is no other such provision in Cardiff."
Mr Bland, who is a specialist welfare rights caseworker employed by Riverside, described the nature of his work in his witness statement. He said that his clients, who have a range of mental health difficulties, experience an exacerbation of those difficulties due to the challenges and stresses of dealing with the social security system. In contrast, the advice and support Riverside can offer maintains and improves their mental well-being. Clients with mental health problems are particularly concerned about disclosing information to anyone, because they think this may lead to their being compulsorily detained. For this reason they do not like to disclose the full impact of their problems.
Because Mr Bland is a mental health specialist, Riverside's clients appear more relaxed and able to discuss the full impact of their condition in their discussions with him. He described one client who suffered from such severe anxiety at the prospect of attending an appointment to discuss welfare benefits that he was quite unable to attend that appointment, and he therefore lost his entitlement. When Mr Bland was able to attend the appointment with him and give him support and reassurance, his fear and anxiety were reduced.
The report of the joint review was published in September 2004. It recommended moving to a three-year agreement as opposed to a one-year agreement, subject to the implementation of an agreed action plan. However, there followed a letter from the defendants' chief executive dated 27th September 2004 to the effect that the defendants had decided to give Riverside six months' notice of termination of its service level agreement. The letter contained this sentence:
"… [I]t was not felt that your organisation was delivering health outcomes in line with the Local Health Board's service and Financial Framework." "
Soon afterwards Riverside was told that the problem had arisen because the defendants' director of finance was concerned that they had no statutory authority to provide further funding. The chair of the review panel recorded in the panel's conclusions:
"In consideration of the recommendations of the Advisory Group, the Review Panel were informed by the Director of Finance that she had concerns that the LHB, by funding such a service, were operating outside the existing financial instructions… In view of this advice the Review Panel agreed to discuss as soon as possible opportunities for the service to be considered for alternative funding sources, eg flexibilities funding, but that the...
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