Secretary of State for Work and Pensions v Alexander Slavin (by his litigation friend Patricia Ann Slavin)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Davis,Lord Justice Pill |
| Judgment Date | 09 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1515 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2011/1308 |
| Date | 09 December 2011 |
[2011] EWCA Civ 1515
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
(Upper Tribunal Judge Turnbull)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Richards
and
Lord Justice Davis
Case No: C3/2011/1308
Tim Buley (instructed by The Solicitor to the Department for Work and Pensions) for the Appellant
David Blundell (instructed by the Free Representation Unit) for the Respondent
Hearing date : 9 November 2011
Lord Justice Richards
The respondent is resident in a specialist care home for people with autistic spectrum disorders and similar conditions. The cost of his accommodation is paid for by the National Health Service. The home is registered as a care home, not a nursing home. Its staff are trained to meet the needs of residents but do not have any medical or nursing qualifications. The specific issue in the appeal is whether the respondent is "maintained free of charge while undergoing medical or other treatment as an in-patient…in a hospital or similar institution under [the National Health Service Act 2006]", within the meaning of reg. 12A of the Social Security (Disability Living Allowance) Regulations 1991 ("the 1991 Regulations"), so as to be disentitled to receipt of the mobility component of disability living allowance ("DLA") for which he was a claimant.
The background is set out clearly in the judgment of Upper Tribunal Judge Turnbull, from whose interim decision the appeal is brought:
"2. The Claimant is a man now aged 30. He has been diagnosed…as having the following medical conditions: severe learning disability, Fragile X Syndrome (autistic traits), challenging behaviour, hay fever, gingivitis, sensitive skin and epilepsy.
3. The most striking consequence of his condition is that his behaviour can be extremely challenging, such that he needs to be continuously supervised by at least one, and sometimes two care staff, who must be ready to intervene in order to attempt to prevent him causing damage to property or injury to himself or others. He can say basic sentences and make his basic needs known, and is able to make some simple choices such as what to eat and drink, what to wear, and whether he would like to go out. However, he needs others to assess basic risks and to protect him from harm.
4. Until 26 November 2007 he lived at home, but with a high level of care and supervision from care workers when his father was at work. It was not safe for his mother to be at home alone with him.
5. His behaviour eventually became too challenging for his parents to be able safely to cope with him at home, and on 26 November 2007 he moved into a care home which…I will refer to as 'The Lodge'. It is privately owned and run. Although it is staffed by appropriately experienced and skilled care staff, it does not have any staff with medical or nursing qualifications. The very substantial fees for the Claimant's accommodation and care there…are paid by the Bradford & Airedale Teaching Primary Care Trust ('the Health Authority')—i.e. in effect by the National Health Service. The Health Authority agreed to pay the whole of the cost of the Claimant's accommodation and care following assessments under the National Framework for NHS Continuing Healthcare and NHS—funded Nursing Care.
6. The Claimant was in receipt of the higher rate of the mobility component…and the highest rate of the care component…of [DLA] while living at home. However, on 18 February 2008 a decision was made that neither component of DLA was payable from 26 December 2007 on the ground that the Claimant was
'being maintained free off charge while undergoing medical or other treatment as an in-patient…in a hospital or similar institution under the [National Health Service Act 2006]'
within regulations 8 (care component) and 12A (mobility component) of [the 1991 Regulations]. However, the Claimant is from time to time taken out by his parents for days out or longer holidays, and both components of DLA have apparently been paid in respect of entire days when he is not at The Lodge ….
7. The Claimant appealed against the decision of 18 February 2008, contending that the fact that The Lodge did not have qualified nursing staff meant the Claimant was not in a 'hospital or similar institution' and therefore that neither reg.8 nor reg.12A applied. The Tribunal, by the decision now under appeal to me, dismissed the Claimant's appeal, finding that The Lodge was a 'hospital or similar institution'."
We are told that the respondent's appeal to the Tribunal related in fact only to the mobility component of DLA. It appears that an appeal in respect of the care component was not pursued as a result of a mistaken understanding of the effect of reg. 9 of the 1991 Regulations, considered below. But regs. 8 and 12A are in materially identical terms and in practice the arguments on the further appeal to the Upper Tribunal and to this court encompassed both regulations.
The legislative framework
DLA is a non-contributory benefit introduced in 1991 as a successor to two earlier benefits, namely attendance allowance (introduced in 1970) and mobility allowance (introduced in 1975). It is now governed by the Social Security Contributions and Benefits Act 1992 ("the SSCBA 1992"). By s.71(1) it consists of a care component and a mobility component. The conditions for entitlement to the care component are set out in s.72; the conditions for entitlement to the mobility component are set out in s.73.
It should be noted that s.72(8) empowers the making of regulations to provide that no amount of DLA attributable to entitlement to the care component shall be payable in respect of a person for a period when he is a resident of a care home in circumstances in which any of the costs of any qualifying services provided for him are borne out of public or local funds under a specified enactment: by s.72(9), the reference to a care home is to "an establishment that provides accommodation together with nursing or personal care". This provides the vires for reg. 9 of the 1991 Regulations (see below). There is no equivalent power under s.73 in respect of the mobility component of DLA.
The vires for regs. 8 and 12A of the 1991 Regulations are to be found in s.73(1)(b) of the Social Security Administration Act 1992 ("the SSAA 1992"), which empowers the making of regulations to provide for adjusting benefit payable to or in respect of a person, or the conditions for receipt of that benefit, where "the person is, or is treated under the regulations as, undergoing medical or other treatment as an in-patient in a hospital or similar institution". By s.191, "'medical treatment' means medical, surgical or rehabilitative treatment (including any course of diet or other regimen), and references to a person receiving or submitting himself to medical treatment are to be construed accordingly". The expression "hospital or similar institution" is not defined in the SSAA 1992, but there is authority that it should be construed as defined in the National Health Service Acts (see White v Chief Adjudication Officer (1993) WL 963025, Court of Appeal judgment of 21 July 1993, per Ralph Gibson LJ).
The National Health Service Act 2006 confers, by ss.1–3, wide powers and duties on the Secretary of State as to the promotion of a comprehensive health service and the provision of services, including: hospital accommodation; other accommodation for the purpose of any service provided under the Act; medical and nursing services; services for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness; and such other services as are required for the diagnosis and treatment of illness.
The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care gives guidance on the respective responsibilities of the NHS (pursuant to the National Health Service Act 2006) and of local authorities (pursuant to s.21 of the National Assistance Act 1948) for meeting a person's needs. It states in para 23 that where a person's primary need is a health need, the NHS is regarded as responsible for providing all their needs, including accommodation if that is part of the overall need, so that they are eligible for "NHS Continuing Healthcare", namely a package of continuing care arranged and funded solely by the NHS. An annex to the document defines "care" in very wide terms as "support provided to individuals to enable them to live as independently as possible, including anything done to help a person live with ill health, disability, physical frailty or a learning difficulty and to participate as fully as possible in social activities; this encompasses health and social care".
The definitions in s.275(1) of the National Health Service Act 2006, as amended by the Mental Health Act 2007, include the following:
"'hospital' means—
(a) any institution for the reception and treatment of persons suffering from illness,
(b) any maternity home, and
(c) any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation …
'illness' includes any disorder or disability of the mind and any injury or disability requiring medical or dental treatment or nursing."
The Care Standards Act 2000, pursuant to which The Lodge is registered as a care home, contains in s.2(3) a somewhat different definition of "hospital"...
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