R (Kemp) v Denbighshire Local Health Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice LANGSTAFF,MR JUSTICE LANGSTAFF |
| Judgment Date | 17 February 2006 |
| Neutral Citation | [2006] EWHC 181 (Admin) |
| Docket Number | Case No: CO/826/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 February 2006 |
[2006] EWHC 181 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Before MR JUSTICE LANGSTAFF
Case No: CO/826/2005
Mr R Weir (instructed by Hugh James Solicitors) for the Claimant
Miss F Morris (instructed by Hill Dickinson) for the Defendant
On 9 th August 2005 the claimant applied for an order that the defendants pay the claimant �109,922.43, together with interest and costs. Only the issues in respect of interest and costs remain for determination. Those applications have thus far involved submissions made by counsel orally before me on two occasions, have involved written submissions, and are such that I have been invited to have regard to a transcript of the oral submissions on the first of those occasions. The necessity or desirability of those arguments, and that expense, coupled with the voluminous documentation which has been put before me is itself subject to argument to the extent to which it may considerably have increased the costs incurred by both parties.
In order to determine the issues which I have to resolve it is necessary to set out the factual history underlying the application for judicial review, the procedural history of this particular case, and the submissions. I shall deal with each in turn.
Background to the claim
William Kemp, the claimant, was born on 28 th April 1913 and is therefore now 92 years of age. He suffers, and has suffered for some years, from senile dementia of an Alzheimer's type. This condition is complicated by the fact that he also suffers from diabetes, which has on occasion rendered him hypoglycaemic, from polymyalgia rheumatica, respiratory disease and rheumatoid arthritis to mention the main conditions. He has on occasion behaved aggressively, and on occasion with disinhibition.
Since June 1999, he has resided at the Canterbury House Nursing Home in Rhyl, which is a nursing home for the elderly mentally ill. He is a patient. His son, Derek, who is the litigation friend, holds an enduring power of attorney for him, which is registered with the Court of Protection.
Prior to 1 st April 2003, the North Wales Health Authority was the health authority responsible for funding any of the claimant's National Health Service (NHS) needs. On that date it was abolished. The Denbighshire Local Health Board became the successor in title and responsible, since 1 st April 2004, for funding any NHS needs of the claimant. The liabilities for the North Wales Health Authority up to the date of its abolition became vested in Powys Local Health Board, the second defendant.
The issues in the case concern the funding of the claimant's placement at the Canterbury House Nursing Home. He paid for this, through his son Derek.
For the period between June 1999 and December 2001, the claimant paid the entirety of the charges levied by the local authority in respect of his accommodation at the Canterbury House Nursing Home.
The claimant's son took the view, on his behalf, that the claimant should be entitled to be funded in full by the NHS in respect of the accommodation and care which he was receiving at the Canterbury House Nursing Home. In 2004 the claimant, acting through his son, contacted the Parliamentary and Health Service Ombudsman to challenge the failure of the defendants to pay for this care since June 1999. He was advised to seek a review of the decision that the claimant was not and had not at any stage been entitled to continuing NHS funding. Following his request, a Special Review Panel was convened on 10 th November 2004. It came to the conclusion that the claimant was not entitled to funding for the health care which he was receiving. This decision of the All Wales Special Review Panel of 10 th November 2004 was the subject of the judicial review proceedings before me.
On the last day of a three month period beginning with the date of this decision the claimant issued judicial review proceedings before the Administrative Court. No pre-action protocol was completed because, according to the claim form:
"there has been insufficient time since being instructed by the claimant and obtaining expert evidence due to the requirement to issue proceedings within three months as required by CPR 54.5(1)(b)."
To understand the criticisms that are made of the approach of the Special Review Panel, it is necessary to review the underlying law as to which there is little or no dispute between the parties.
The National Health Service Act 1977 places upon the Secretary of State for Health a duty to continue to promote a comprehensive health service (section 1(1)). Section 1(2) provides that the services so provided shall be free of charge ".. except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed". By section 3 it is his duty to provide, amongst other matters, "medical, dental, nursing and ambulance services." The duty so to provide is qualified. Provision has to be to such extent as the Secretary of State considers necessary to meet all reasonable requirements (section 3(1), introductory words).
Section 21 of the National Assistance Act 1948 , as amended, provides that a local authority may, with the approval of the Secretary of State, and to such extent as he may direct, make arrangements for providing residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them. Section 21(5) provides in effect (see R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at 231, para 27) that references to accommodation in the Act may cover nursing services which are provided in connection with accommodation.
Section 21(8) provides:
"� nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 1977." (My emphasis).
Local authorities are permitted, by regulation, to make charges in many circumstances for the accommodation which they provide. The NHS, in general, is not. Accordingly, in any case in which a person is accommodated in residential accommodation, and is in need of care and attention not otherwise available to him or her, it will be critical (financially) to know whether or not that accommodation and the care that comes with it are to be paid for in its entirety by the NHS, or provided at a charge by the local authority.
The resolution of that issue was illuminated by the decision of the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlan (supra). The conclusion to which the Court of Appeal came (see paragraph 30) concluded (paragraph 30(d)) that no precise legal line could be drawn between those nursing services which were and those which were not capable of being treated as included in such a package of care services provided by a local authority. Lord Woolf MR, giving the judgment of the court, said, however, that:
"..as a very general indication as to where the line is to be drawn, it can be said that if the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide to the category of persons to whom section 21 of the 1948 Act refers and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide, then they can be provided under section 21. It will be appreciated that the first part of the test is focusing on the overall quantity of the services and the second part on the quality of the services provided."
At paragraph 48 the court declared that it was for the health authority to decide what should be the eligibility criteria in its area in the co-operative framework envisaged by the relevant circulars. In doing so it could take account of conditions in its area. The criteria could not, however, place a responsibility on the local authority going beyond the terms of section 21.
In respect of Wales, a circular in 1995 required health authorities to develop local policies and eligibility criteria for continuing health care. In response, eligibility criteria were produced relevant to the present case, clarified in 2001 in response to the decision in Coughlan.
The Special Review Panel which considered the claimant's case on 10 th November 2004, had regard to eligibility criteria for continuing health care, in guidance on social services' responsibility for continuing social care, which had been agreed in April 1999 between North Wales Health Authority and the relevant local authorities. It held that the eligibility criteria at paragraphs 6.1 and 6.2 were such that upon a proper application of them to the material available in respect of the claimant, he was not eligible for continuing NHS funding.
Paragraph 6.2.1 is to the effect that "NHS responsibility" was indicated where a multi-disciplinary team, following assessment, agreed that an individual met one or more of a number of specified criteria and ".. thereby requires regular input from a designated member of the...
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