R Ruth Whapples v Birmingham Crosscity Clinical Commissioning Group The Secretary of State for Health (Interested Party)

Hearing date: 16/7/14

Introduction

This is an application for judicial review brought in very sad and difficult circumstances. The Claimant has extremely severe physical symptoms stemming, so the balance of the available medical evidence indicates, from post traumatic stress disorder ("PTSD") arising from traumatic events in her past, including abuse during childhood. She is seeking a ruling from this court to the effect that the Defendant ("the CCG") has an obligation under section 3 of the National Health Service Act 2006 ("the NHS Act") to provide her with accommodation, as part of the health care package with which it should provide her free of charge under the NHS.

The CCG denies that it is subject to such an obligation. It says that there are other routes by which the Claimant's accommodation needs can be met, either by provision of suitable housing by a housing association (with rent paid for by housing benefit) or by provision of social housing by a local authority with responsibility for meeting her social welfare needs.

The legal issue of principle which the court is invited to determine on the present application is whether the Claimant has a right to provision of accommodation suitable to meet her needs as part of the free, non-means tested care which she receives from the NHS or whether her accommodation should be provided by one or other of these alternative routes, in the form of means tested welfare benefits.

The Claimant has no significant assets and her medical condition is such that she cannot work, so she has a strong claim to be in receipt of appropriate means tested social assistance. However, she feels that she would have greater assurance about the accommodation options available to her if she can establish that the CCG has an obligation under section 3 of the NHS Act to provide her with accommodation.

This legal issue is of wider significance for the NHS. An obligation on NHS bodies to provide free of charge, non-means tested accommodation could, if it is extensive, represent a considerable drain on their resources. For that reason, the Secretary of State for Health has been granted permission to intervene in these proceedings.

Section 3 of the NHS Act

Section 3(1) of the NHS Act, as amended, provides:

"A clinical commissioning group must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility –

(a) hospital accommodation,

(b) other accommodation for the purpose of any service provided under this Act,

(c) medical, dental, ophthalmic, nursing and ambulance services,

(d) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as the group considers are appropriate as part of the health service,

(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as the group considers are appropriate as part of the health service,

(f) such other services or facilities as are required for the diagnosis and treatment of illness.

It is common ground between the Claimant and the CCG, and the Secretary of State agrees, that, as a matter of general principle, the words "other accommodation" in section 3(1)(b) are capable of covering ordinary private residential accommodation (as distinct from accommodation in a hospital or a care home). Therefore, in appropriate circumstances, a CCG does have a power to pay for such accommodation under that provision. However, the CCG and the Secretary of State dispute the Claimant's claim that in present circumstances the CCG is obliged to pay for a suitable flat for her.

The Secretary of State has issued guidance entitled, "National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care" (revised version, November 2012) ("the Framework Guidance"). This includes general guidance as to the approach to be adopted to deciding when an NHS body should provide and pay for accommodation, as part of a package of NHS healthcare, and when it is appropriate for local authorities to provide accommodation as part of the welfare services they provide under section 21 of the National Assistance Act 194The Framework Guidance says this at paragraphs 33–35:

" Primary Health Need

33. To assist in deciding which treatment and other health services it is appropriate for the NHS to provide under the 2006 Act, and to distinguish between those and the services that LAs [local authorities] may provide under section 21 of the National Assistance Act 1948, the Secretary of State has developed the concept of a 'primary health need'. Where a person has been assessed to have a 'primary health need', they are eligible for NHS continuing healthcare. Deciding whether this is the case involves looking at the totality of the relevant needs. Where an individual has a primary health need and is therefore eligible for NHS continuing healthcare, the NHS is responsible for providing all of that individual's assessed health and social care needs – including accommodation, if that is part of the overall need.

34. There should be no gap in the provision of care. People should not find themselves in a situation where neither the NHS nor the relevant LA (subject to the person meeting the relevant means test and having needs that fall within their eligibility criteria for adult social care ^[…]) will fund care, either separately or together. Therefore, the 'primary health need' test should be applied, so that a decision of ineligibility for NHS continuing healthcare is only possible where, taken as a whole, the nursing or other health services required by the individual:

a) are no more than incidental or ancillary to the provision of accommodation which LA social services are, or would be but for a person's means, under a duty to provide; and

b) are not of a nature beyond which an LA whose primary responsibility it is to provide social services could be expected to provide.

35. There are certain limitations to this test, which was originally indicated in Coughlan [ R v North and East Devon Health Authority, ex p. Coughlan[2001] QB 213]: neither the CCG, nor the LA can dictate what the other agency should provide. Instead, a practical approach to eligibility is required – one that will apply to a range of different circumstances, including situations in which the 'incidental or ancillary' test is not applicable because, for example, the person is to be cared for in their own home. Certain characteristics of need – and their impact on the care required to manage them – may help determine whether the 'quality' or 'quantity' of care required is more than the limits of an LA's responsibilities, as outlined in Coughlan:

Nature: This describes the particular characteristics of an individual's needs (which can include physical, mental health or psychological needs) and the type of those needs. This also describes the overall effect of those needs on the individual, including the type ('quality') of interventions required to manage them.

Intensity: This relates both to the extent ('quantity') and severity ('degree') of the needs and to the support required to meet them, including the need for sustained/ongoing care ('continuity').

Complexity: this is concerned with how the needs present and interact to increase the skill required to monitor the symptoms, treat the condition(s) and/or manage the care. This may arise with a single condition, or it could include the presence of multiple conditions or the interaction between two or more conditions. It may also include situations where an individual's response to their own condition has an impact on their overall needs, such as where a physical health need results in the individual developing a mental health need.

Unpredictability: This describes the degree to which needs fluctuate and thereby create challenges in managing them. It also relates to the level of risk to the person's health if adequate and timely care is not provided. Someone with an unpredictable healthcare need is likely to have either a fluctuating, unstable or rapidly deteriorating condition. …"

The guidance here is very general. Mr Lock QC for the Claimant sought to suggest that paragraph 33 indicates that the CCG is obliged in the present case to pay for the Claimant's accommodation. I do not agree. That paragraph has to be read in the context of the whole Framework Guidance. It is clear from the document as a whole that there is no presumption that if someone has healthcare needs and if provision of suitable accommodation would assist in meeting those needs, then the provision of that accommodation is the responsibility of an NHS body. Rather, the responsibility for meeting the accommodation part of the needs of the individual will require assessment of what may be available to them in terms of provision of suitable social housing by a local authority or their...