Whapples, R (on the application of) v Birmingham Crosscity Clinical Commissioning Group & Anor

The question in this appeal is whether the Birmingham Crosscity Clinical Commissioning Group of the National Health Service [“the CCG”] is obliged to pay for a private flat in which the appellant will receive “NHS Continuing Healthcare”. She currently lives in a one bedroom adapted flat in Birmingham which belongs to the Midland Heart Housing Association [“Midland Heart”]. She is their tenant and receives Housing Benefit to meet the rent of the flat. These proceedings have been argued upon the basis that the appellant would benefit from an adapted two bedroom flat outside the West Midlands. The appellant’s view is that she needs something larger. Her unusual combination of medical conditions includes Post Traumatic Stress Disorder [“PTSD”] flowing from abuse she suffered as a child and young adult, including as a result of her experience in institutions. She is functionally quadriplegic. The medical evidence suggests that severe symptoms are triggered by any involvement with medical or other staff working for the CCG and would also be triggered by her moving to a care home. It is for those reasons that the appellant seeks private accommodation outside the West Midlands. Her current landlords offered to find a two bedroom flat outside the West Midlands but the appellant did not co-operate in that endeavour. Mr Lock QC argues that, when properly understood, Section 3 of the National Health Service Act 2006 [“the NHS Act”] and the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care 2012 [“the National Framework”] require the CCG to provide or pay for private accommodation into which the appellant can move. We asked him to formulate the relief now sought in these proceedings. It is:

In all relevant respects the CCG is the statutory successor of a Primary Care Trust. I shall refer to the respondent in this appeal as the CCG, even when actions were undertaken by its predecessor. It has refused to provide or pay for such private accommodation. It contends that the statutory regime and National Framework impose no such obligation. Both the CCG and the Secretary of State for Health (as Interested Party) concede that the CCG has power under section 3(1)(b) of the NHS Act to provide private accommodation to a patient in the appellant’s position (whether by purchasing a flat, renting one on her behalf or reimbursing the rent she is obliged to pay). We heard no argument on that concession but I proceed on the basis that it is correct, without deciding the point. It has potential wide-ranging implications and the issue may fall to be considered in another case with the benefit of full argument.

In this case all of those concerned with the appellant’s welfare have been keen to find a practical solution to what has become an intractable problem.

The appellant is now approaching her 58^th birthday. She has been partially sighted since birth. As a child she lived in various residential homes during which time she was traumatised. Physical disability developed gradually. By the time she was 27 the appellant was bed-ridden. She was diagnosed with “hysterical paraplegia”, an unfortunate label applied to her severe disability which had no discernable physiological cause. The paralysis continued to develop to the extent that the appellant became quadriplegic. As long ago as 1986 the appellant first wrote to say that she wanted to disassociate from community services. Her condition was described as chronic, progressive and untreatable.

In July 2009 the appellant was admitted to the National Hospital for Neurology and Neurosurgery in London for tests and assessment over four weeks. It was noted that the appellant had severe wasting of her lower limbs. She was in need of physiotherapy. At this time there was no structured care being provided to the appellant. A close friend, Mr Jeffs, provided day to day care with help on a voluntary basis from two retired nurses. The assessment described as the “ideal situation” that she should be provided with a care package involving two carers. Whilst at the National Hospital the appellant had received care through the night (turning etc.) and to replicate that in her home environment, the assessment recommended that a two bedroom flat be found for her.

The appellant’s flat is as an adapted ground floor flat but has only one bedroom. The bathroom is adapted to enable the appellant to be lifted in and out of the bath. Following the assessment in London the appellant returned to the flat. In late 2009 she was admitted to hospital in Nottingham. In April 2010 she discharged herself from hospital and moved to Wiltshire. To begin with the CCG continued to pay for her care but in October 2010 a package was put in place by the local NHS. The appellant had moved to enable care to be provided by people other than sent by the CCG, to avoid their input triggering an episode of PTSD. Unfortunately, the relationship with the Wiltshire NHS broke down. Throughout this period the appellant was being seen on a regular basis by Dr Herbert, a clinical psychologist, in whom she did repose confidence and whose services were paid for by the CCG. Dr Herbert had become involved in 2008. The appellant returned to her flat in Birmingham towards the end of 2010. The two relevant NHS bodies worked together to try to ensure a smooth transition.

The informal care provided by Mr Jeffs and two nurses resumed, but the retired nurses (who are described in the evidence as being “elderly”) stopped providing their assistance towards the end of 2013. Dr Ralston has been the appellant’s general practitioner for over 20 years. She has not allowed him to examine her since December 2012. Prior to that the position was that she would allow him to examine her but only in Dr Herbert’s presence. She will now not communicate with him. It is reported that the appellant can become angry and abusive when dealing with medical professionals and is skilful at blocking inquires and changing the subject. There is no doubt that the appellant is a supremely intelligent, indeed quite remarkable, woman. Despite her disabilities she completed a computer science degree between 1986 and 1993. She is able to use a computer by directing a beam from a gadget attached to her head. She is able to recollect perfectly the content of complex documents.

She was seen by Dr Ewbank, a forensic psychiatrist, twice in October 2014 for the purposes of a report for the Court of Protection on capacity. The appellant would not discuss her physical condition with Dr Ewbank. Nonetheless, she indicated that she was on no medication and was not in pain. Dr Ewbank did not examine the appellant but noted that she moved her head and was able to shrug her shoulders. She would not explain how she managed to eat or drink. The appellant was critical of the various diagnoses of her conditions and, in particular, did not accept that there was no physiological cause of her quadriplegia. Dr Ewbank noted that the appellant could not be treated by those in the West Midlands because of the PTSD. The appellant herself indicated that there had been no physical treatment since she returned to Birmingham. She said that so far as accommodation was concerned, she “would look at anything that was offered” and also said that she was not refusing healthcare. She was not being offered anything outside Birmingham. She believed she was being tortured.

Dr Ewbank referred to the “Catch 22” problem. The appellant needs psychological support before she can get care and treatment. That cannot happen until she is in a safe environment. The appellant wants the psychological input to be provided by Dr Herbert, and nobody else. But, as Dr Ewbank pointed out, no care plan is sustainable if it relies upon one person. It was clear that the relationship with the general practitioner had broken down and the current arrangement which relied upon Mr Jeffs was not adequate.

The CCG had organised multi-disciplinary meetings and itself worked to find bodies which could offer the appellant larger accommodation. It wanted to introduce a package of care but found it impossible to do so because the appellant would not allow any care to start in her current accommodation. For example, she would not even allow access to enable an assessment to be made for the provision of equipment. There has been no full assessment of the appellant’s needs since August 2010 (when she was in Wiltshire). The CCG engaged the services of an independent case manager to assist the appellant. In March 2012 an independent assessment was undertaken by a private company, in the presence of Dr Herbert. She too had input into the product of that assessment. One of the problems identified was that there was a lack of evidence about the nature of the appellant’s conditions, and thus needs. For example, the appellant had refused to allow the nurse assessor to examine her skin. The provision of Continuing Health Care is based upon care needs, rather than simple diagnosis of a medical condition. The unfortunate reality was that whilst it was clear that the appellant was in need of extensive care, her refusal to cooperate in an assessment made it impossible to determine precisely what care she required in a complex environment where the delivery of physical care would have to be organised to minimise psychological harm.

A formal offer of care was made on 7 August 2012 via the independent case manager. The CCG indicated that staff used to provide care would undergo psychological training.

The CCG acknowledged throughout 2011 and 2012 that the appellant’s current accommodation may not be suited to her long term care needs but was of the view that a care package could be put in place at her current flat, not least because she had previously received care there. Susan Collier, the Associate Director of Continuing Health Care at NHS Birmingham, put it this way in her statement in these proceedings:

“[The CCG’s] position has always been that a care package can be provided in Ms Whapples’ current home, but it recognises that in the long term, Ms Whapples’ desire to move outside the Birmingham area will assist her long term psychological health.”

The CCG investigated the provision of new accommodation through a housing management company, private rented housing and housing through a social landlord. A concern was raised on the appellant’s behalf about whether her Housing Benefit would cover the cost of any new rented accommodation. That concern first manifested itself in the context of the appellant’s stated desire to have a three bedroom property, with a separate study and garden. That has always been an unrealistic and unreasonable demand upon public resources, but to the extent that an appropriate two bedroom property were found and there were a benefit shortfall, the CCG said it would consider topping it up.

Part of the problem identified at the current flat is that it is very cluttered and untidy. The CCG offered to sort that out by using a private company, even though ordinarily it would be the responsibility of the Local Authority. Its offer was motivated by the fact that involvement of Birmingham City Council was said to trigger an episode of PTSD. The appellant declined the offer, including to remove obsolete equipment.

Ms Collier concluded her statement with these observations:

“37.

Ms Whapples’ PTSD triggers now seem to be so wide ranging that almost every suggestion, action or proposal made by the [CCG or independent case manager] evokes a response which stifles progress and requires re-evaluation of options, thus continuing to delay the introduction of care or the achievement of any other of Ms Whapples’ goals.

38.

…[the CCG] in its allocation of public funding, must have some objective insight into what are the real clinical requirements of Ms Whapples’ care as opposed to the wants and desires which any individual might reasonably have, but which in this case have become blurred with the above.

39.

The [CCG] has to consider its resources with every decision it makes and take account of the costs of services it provides. When commissioning care for patients … [it] has a statutory duty to break even financially each year and apply its policies fairly, providing a package of support which is consistent with the level provided to other patients. It is not in any way the case that just because [it] does not mention resources in all its correspondence that means that they are not relevant to [its] decision making. It is widely understood that this is the clear position of the [CCG].”

These proceedings were issued in July 2012. The appellant had earlier litigated against the CCG’s predecessor over the provision of a case manager and other matters relating to her care: see [2008] EWCA Civ 465 for a summary. Permission in this case was refused in the High Court at an oral hearing but granted by the Court of Appeal in March 2013: [2013] EWCA Civ 258. Pursuant to an order made by the Court of Appeal, a directions hearing took place before Lewis J on 4 November 2013 at which he sought to explore a practical solution to the underlying problem. As part of that exercise he ordered that there should be a joint report on the appellant’s accommodation. The appellant had confirmed that she would co-operate with efforts by Midland Heart and others to find larger accommodation for her outside the West Midlands. Her solicitors confirmed on 6 November 2013 that she was

“indeed prepared to cooperate with Midland Heart Housing Association to enable them to consider and assess her housing situation [and was] willing to register, and to provide the requisite information for registration to any local housing authority nominated by Birmingham Cross City CCG.”

The appellant refused to provide Midland Heart with information about her GP and did not respond to the other requests. Lewis J had ordered that the appellant should register with Homes Direct or provide Midland Heart with the information to enable them to do so, on her behalf. She did neither. Furthermore, she did not allow Midland Heart to review and assess her current property or contact her general practitioner.

On 30 July 2014 Sales J dismissed the appellant’s claim for judicial review of the CCG’s refusal to provide the appellant with new accommodation. In the light of the concession that the CCG had power to provide new accommodation for the appellant, the sole ground (ground 3) advanced before the judge was that the failure to do so was unlawful in light of the National Framework.

Those representing the appellant, the CCG and the judge himself, had doubts whether she had legal capacity to make decisions relating to her healthcare, including by whom and where she should receive it, or relating to her accommodation needs. That concern arose on the basis of medical evidence, all of which was years out of date by July 2014 because the appellant would not allow anyone to examine her; and on the basis of her lawyers’ personal dealings with her. Her general practitioner was also concerned about capacity. There had been extensive previous involvement of the Court of Protection. After Sales J gave judgment, an application, which had been foreshadowed by the parties, was made to the Court of Protection. Dr Ewbank produced the joint report directed towards capacity to which I have referred. She concluded that the appellant had capacity to conduct litigation and deal with her accommodation, treatment and care. There would be times when that capacity would be lacking if severe symptoms of PTSD manifested themselves. That had been the position in the past. An order was made by Roderick Wood J in the Court of Protection on 5 March 2015 declaring that:

“Ruth Whapples has capacity to make the following decisions:

a.

A decision to be assessed by healthcare professionals to ascertain her immediate healthcare needs.

b.

A decision to accept care and treatment from healthcare professionals to meet her immediate healthcare needs.

c.

A decision as to how, and by whom, and where, care should be delivered.

d.

A decision as to whether she needs medical care in hospital.

e.

A decision about whether to accept an offer of accommodation by the CCG or any other housing provider (including new accommodation outside of the West Midlands).”

The question of capacity was of significance because of the overall conclusion of the judge. He found as a fact that there was a real prospect that Midland Heart or a housing authority outside the West Midlands would provide accommodation to the appellant if she “were willing and able to co-operate with them to assess her needs against the housing stock available to them.” That conclusion flowed from the information summarised in the joint accommodation report, the substance of which I have set out. He continued:

“61.

The Claimant has thus far not proved willing and able to co-operate with those bodies, or with the CCG, to enable them to make the relevant assessments. There is a very real possibility that this is due to the effects of the Claimant's PTSD, and that she is simply incapable of co-operating in the way required. That is a matter which is going to be explored in the Court of Protection proceedings. Alternatively, if in fact the Claimant has full relevant mental capacity to make the decision not to co-operate with these bodies, then it is down to her own voluntary choice that she has failed to co-operate with them, and has thus stymied perfectly sensible proposals to try to find her new, suitable accommodation.

62.

In the circumstances of this case, I am bound to say that I think that the former explanation is more likely to be true, but that is going to be a matter for close examination and determination by the Court of Protection. It is not a matter for me to decide by a final and binding ruling.

63.

Ms Morris suggested that, for the purposes of the judicial review proceedings, I should assume (in advance of any decision to the contrary by the Court of Protection) that the Claimant does have full mental capacity in relation to decisions regarding her accommodation. I disagree. In circumstances where it is the view of the CCG, the view of the Claimant's own counsel and the view of the court itself, based on objective indications, that there is a real possibility that the Claimant lacks such capacity, it would be contrary to the evidence and to common sense to make an assumption that there is not a serious question-mark in relation to that issue. I therefore proceed on the basis that I cannot be sure which of the possible explanations for the Claimant's unco-operative attitude is the correct one – either is possible.

64.

What is important for present purposes, however, is that whichever explanation is the right one, I do not consider that this court could properly make the ruling sought by the Claimant under Ground 3 as things currently stand. As was the position at the hearing before Lewis J, there are still real prospects that suitable accommodation for the Claimant could be provided by Midland Heart or by a housing authority outside the West Midlands, which have not yet been fully and properly explored.

65.

If the Claimant has relevant mental capacity in relation to decisions regarding her accommodation, then the CCG's decision to date that it does not consider it necessary to meet the reasonable requirements of the Claimant that it should provide accommodation under section 3(1)(b) of the NHS Act would in my judgment be lawful. It could assess that the Claimant has no "reasonable requirement" of accommodation to be provided by the CCG if she has made a free choice not to try to find a larger flat for herself. Further, the CCG could also assess that it is not "necessary" for it to provide her with accommodation, where she already has accommodation and has made a free choice not to pursue other avenues open to her to find better accommodation. On the footing that the Claimant has capacity, if she was acting reasonably she would have co-operated with Midland Heart and the relevant housing authorities to try to find out if they could provide her with suitable accommodation, without having to call on the resources of the NHS to meet her need for accommodation.

66.

If, on the other hand, the Claimant does not have mental capacity in relation to decisions regarding her accommodation, then the CCG is lawfully entitled to consider that the appropriate way forward is to seek to raise the question of the Claimant's mental capacity in the relevant forum, the Court of Protection. This is what it is seeking to do, to resolve the uncertainty in which it finds itself. Proceedings in the Court of Protection can be conducted with appropriate speed, where important decisions are in issue.”

Section 3(1) of the NHS Act 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.”

This is the version which follows the latest reorganisation of the NHS reflected in the Health and Social Care Act 2012. Prior to these amendments the duties imposed by section 3 fell upon the Secretary of State or the Primary Care Trust. The identity of the statutory body responsible for the appellant’s healthcare needs has thus changed during the lifetime of these proceedings, but nothing turns on that. Section 3 has a long history stretching back to the National Health Act 1948. Its immediate predecessor, in materially identical terms, was section 3 of the National Health Service Act 1977 which was interpreted in this court in Coughlan v. North and East Devon Health Authority [2001] QB 213.

Coughlan is often referred to as one of the principal authorities on substantive legitimate expectation. However, it was also concerned with the reach of the statutory duties imposed by section 3 of the NHS Act and the relationship between obligations to provide nursing care imposed by different statutory regimes upon the NHS, on the one hand, and local authorities via section 21 of the National Assistance Act 1948 [“the 1948 Act”] on the other. Paragraphs 23 to 26 of the judgment of the court given by Lord Woolf MR dealt with section 3 of the NHS Act.

“23 …the Secretary of State’s section 3 duty is subject to two different qualifications. First of all there is the initial qualification that his obligation is limited to providing the services identified to the extent that he considers them to be necessary to meet all reasonable requirements. In addition, in the case of facilities referred to in (d) and (e), there is a qualification in that he has to consider whether they are appropriate to be provided “as part of the health service”. …

24.

The first qualification placed on the duty contained in section 3 makes it clear that there is scope for the Secretary of State to exercise a degree of judgment as to the circumstances in which he will provide the services … referred to in the section. …

25.

When exercising his judgment he has to bear in mind the comprehensive service which he is under a duty to promote as set out in section 1. However, as long as he pays due regard to that duty, the fact that the service will not be comprehensive does not mean that he is necessarily contravening either section 1 or section 3. The truth is that, whilst he has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3, disregard that duty, a comprehensive health service may never, for human, financial and other resource reasons, be achievable. Recent history has demonstrated that the pace of developments as to what is possible by way of medical treatment, coupled with ever increasing expectations of the public, mean that the resources of the NHS are and are likely to continue … to be insufficient to meet demand.

26.

In exercising his judgment the Secretary of State is entitled to take into account the resources available to him and the demands on those resources. In R v Secretary of State for Social Services, Ex p Hincks (1980) 1 BMLR 93 the Court of Appeal held that section 3(1) of the 1977 Act does not impose an absolute duty to provide the specified services. The Secretary of State is entitled to have regard to the resources made available to him under current government economic policy.”

The parties’ common approach has been to locate the power to provide the appellant with new accommodation in section 3(1)(b). The NHS may provide accommodation other than hospital accommodation for the purpose of providing her with a service, namely NHS continuing healthcare. The accommodation sought by the appellant is not said to be a service itself. As Vos LJ pointed out in argument, it might also fall within section 3(1)(e), as a facility for the care of a person suffering from illness etc. The essential argument on behalf of the appellant is that a new flat is necessarily a reasonable requirement to enable her to receive the service of NHS continuing healthcare. Mr Lock submits that no other conclusion was open to the CCG on the facts of this case, given the terms of the National Framework and that the assessments undertaken in 2009 and 2010 accepted her entitlement to such healthcare.

The National Framework does not have any express statutory authority. Elsewhere in the NHS Act, power is conferred upon the Secretary of State to give directions to various NHS bodies and others which they are obliged to follow. It is common ground that the National Framework does not amount to a direction.

Section 2 of the NHS Act empowers the Secretary of State to do anything “whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge” of the duties under the Act. Although not referred to on its face, the power to establish the National Framework is found in that section. The interpretation of the National Framework is ultimately a matter for the court having regard to its development, statutory context and purpose. In discharging its functions the CCG was obliged to take the National Framework into account. The CCG is susceptible to challenge on Wednesbury principles for failing to consider the National Framework, or misconstruing or misapplying it: see R v North Derbyshire Health Authority ex p Fisher (1997) 38 BMLR 76 per Dyson J at page 89.

The decision under challenge was affirmed in the course of the proceedings in the High Court. In those circumstances the parties are agreed that the November 2012 version of the National Framework is the relevant one. It reproduces the substance of earlier guidance. It came into force from April 2013. In particular, it reflected legislative changes wrought by the Social Care Act 2012 and the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibility and Standing Rules) Regulations 2012 (SI 2012 No. 2996). At the heart of the National Framework is the process for deciding whether someone is eligible for NHS continuing healthcare or NHS-funded nursing care. It is also concerned with joint care packages provided with local authorities. It reflects the distribution of responsibilities identified in Coughlan. It deals with dispute resolution between the NHS and local authorities. It is divided into two parts. Part 1 comprises the National Framework itself. Part 2 is made up of a large number of Practice Guidance Notes (numbered PG1, PG2 etc.) which illustrate its application.

This case does not concern the question whether the appellant is entitled to NHS continuing healthcare. The assessments hitherto carried out (albeit now out of date) established that she is; and nothing has changed in the interim which could affect that basic conclusion. Neither is it concerned with a joint package of care, or with NHS funded nursing care. In the language of section 3 of the NHS Act the “service” in issue is NHS continuing healthcare.

The reference to “accommodation” on which the appellant relies in the Guidance is found in paragraph 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 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.”

Mr Lock submits that new accommodation forms part of the appellant’s “overall need”. Without that accommodation it is not possible to deliver the continuing healthcare she needs. If a patient is in need of new accommodation in which to deliver the continuing healthcare (whether a private home or an institution) then, in accordance with the Guidance, the CCG is obliged to pay for it. If the appellant’s home were adequate for the purpose (both as regards size and location) he accepts that there would be no obligation to pay for it, although it might be thought that she is no less in need of it. He does not shy away from the implications of the interpretation for which the appellant contends. If she owned her own home, whatever it might be worth, but needed to move to new private accommodation to receive the continuing healthcare the NHS would be obliged to pay for the new accommodation.

However, paragraph 33 of the National Framework does not stand alone. PG 85 and PG 88 are concerned with circumstances in which someone receives NHS continuing healthcare in his own home:

“PG 85 What are the responsibilities of CCGs and LAs where a person is supported in their own home?

85.1

Where someone is assessed as eligible for NHS continuing healthcare but chooses to live in their own home in order to enjoy a greater level of independence, the expectation in the Framework is that the CCG would remain financially responsible for all health and personal care services and associated social care services to support the assessed health and social care needs identified outcomes for that person, e.g. equipment provision (see PG 79) routine and incontinence laundry, daily domestic tasks such as food preparation, shopping, washing up, bed-making, support to access community facilities etc. … However, people who choose to live in their own home may have additional community care needs which it may be appropriate for the LA to address subject to their local eligibility threshold and charging policy, e.g. assistance with property adaptation (see PG 79), support with essential parenting activities, support to access other community facilities, carer support services that may include additional general domestic support, or indeed any appropriate service that is specifically required to enable the carer to maintain his/her caring responsibilities (bearing in mind PG 89 below).

85.2

There is a range of circumstances in which CCGs have overlapping powers with other statutory organisations. Where this is the case, CCGs and other statutory bodies should work in partnership locally to determine how each partner’s responsibilities will be exercised. CCGs should not simply assume that another organisation will meet the need. Active liaison should take place. The needs appropriate for the CCG to meet will depend upon the circumstances of the individual case, having regard to the overall purpose of the health service – to improve physical and mental health, and to prevent, diagnose or treat illness.

85.3

Where other agencies/organisations have potentially overlapping powers/responsibilities there should be a discussion between the parties involved. If someone is receiving NHS continuing healthcare in their own home their benefits are unaffected … There is a range of everyday household costs which are expected to be covered by the personal income or through welfare benefits (i.e. food, rent/mortgage interest, fuel, clothing and other normal household items). In addition, disability-related benefits … are intended to cover some disability-related costs. As individual circumstances will differ considerably, it is not possible to give hard and fast rules on how best to divide responsibilities where overlapping powers exist. …

PG 88 If someone has NHS Continuing Healthcare at home, does the CCG have to pay for the rent/mortgage, food and utility bills?

88.1

No. The NHS is responsible for funding health and personal care costs, not rent, food and normal utility bills. There will be circumstances, however, when a contribution towards a utility bill may be appropriate (because, for example, the individual has increased costs to run specialised equipment).”

The references to PG 79 are to a detailed code which determines how the costs of equipment and adaptations to a home are distributed between the NHS and local authorities. It also touches on housing more generally:

“79.4

CCGs should be aware of their responsibilities and powers to meet housing-related needs for those entitled to NHS continuing healthcare:

a)

CCGs have a general responsibility under section 3(1)(e) of the NHS Act 2006 to provide such after-care services and facilities as it considers appropriate as part of the health service for those who have suffered from illness.

b)

[relates to Armed Forces and prisoners]

c)

CCGs may make payments in connection with the provision of housing to housing authorities, social landlords, voluntary organisations and certain other bodies under sections 256 and 257 of the above Act.

d)

CCGs also have a more general power to make payments to LAs towards expenditure incurred by the LA in connection with the performance of any LA function that has an effect on the health of any individual, has an effect on any NHS function, is affected by any NHS function or are connected with any NHS function.

e)

Housing can form part of wider partnership arrangements under section 75 of the above Act.

79.5

…

79.6

Whilst LAs and CCGs have some overlapping powers and responsibilities in relation to supporting individuals eligible for NHS continuing healthcare in their own home, a reasonable division of responsibility should be negotiated locally …”

This too points away from a requirement upon the CCG to provide or pay directly for persons in their own home.

Read as a whole, the National Framework does not, in circumstances where a patient is receiving NHS continuing healthcare in his own home, generally contemplate that the NHS will be responsible for defraying the costs of that accommodation. The Practice Guidance clearly contemplates otherwise. The language of paragraph 33 of the National Framework, although capable of bearing the meaning urged by Mr Lock, is to my mind not directed towards cases where a patient would benefit from a move from one private house or flat to another to enable a care package to be delivered more effectively. It is directly concerned with the relatively common situation in which an individual’s condition makes it inappropriate for the necessary care to be provided at home, thus requiring alternative arrangements for accommodation to be made in a specialist setting. Although Mr Lock sought to describe the new accommodation itself as a health need, because for psychological reasons the appellant needs to move and because of the need for more space to enable a carer to stay overnight, the same could be said in all cases where a different house or flat is thought desirable to accommodate equipment or carers associated with the provision of continuing healthcare. The National Framework does not distinguish between those cases where a patient remains in the same accommodation to receive continuing healthcare and those where a move might occur.

The appellant’s interpretation of paragraph 33 of the National Framework, if correct, would have significant implications for NHS funding of private accommodation. For the reasons I have identified, I do not accept that the interpretation is consistent with the practical guidance found elsewhere in the document. Furthermore, it would be remarkable indeed if a single paragraph in the National Framework could have the effect for which the appellant contends, when it does not deal expressly with the question of care in a patient’s own home. The judge concluded that the National Framework does not dictate the outcome sought by the appellant. In my judgment he was right to do so.

The appellant is not homeless, nor is she in danger of becoming homeless. The facts of this case do not call for a detailed examination of the duties of local authorities to homeless people generally, or to those in need of continuing healthcare. Nonetheless, we heard submissions on the question whether a local authority could have a duty under section 21 of the 1948 Act in these circumstances.

Mr Lock submits that a local authority would have no power to provide accommodation for the appellant under section 21. He refers both to sub-section (1), which confers a power to provide “accommodation for persons … 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”, and to sub-section (8), which excludes from the scope of section 21 “any provision … authorised or required to be provided under [the 2006 Act]”: he contends that accommodation was “otherwise available”, namely from the CCG, and that for the same reason the case was caught by sub-section (8). Indeed he says that the CCG had not itself relied upon section 21. Ms Fenella Morris QC (appearing for the CCG) was somewhat equivocal about the extent to which she did so, but Mr Ivan Hare (for the Secretary of State) explicitly contends that a relevant local authority might be obliged to provide accommodation for the Appellant under section 21.

I doubt how relevant Mr Lock’s submission really is, since it is unclear whether the prospect of finding accommodation for the appellant depends on the exercise by any local authority of its powers under section 21. But in so far as it is relevant, I am unable to accept it. In Coughlan this Court made clear, at paragraph 29 (p. 232 C-E), that

“The … prohibitive effect [of sub-section (8)] … is limited to those health services which, in fact, have been authorised or required to be provided under the Health Act. Such health services would not therefore include services which the Secretary of State legitimately decided under section 3(1) of the Health Act it was not necessary for the NHS to provide.”

There is a risk of circularity here. But the Secretary of State has addressed that problem in the National Framework by developing the concept of a “primary health need” as the criterion for deciding whether a need should be met by the NHS or by a local authority under section 21 (see in particular paragraph 23 of the National Framework). The CCG was entitled to decide that the provision to the appellant of a private home (assuming that such provision could fall within the terms of section 3 (1) (b) of the NHS Act) was not such a need. That being so, sub-section (8) would not apply; and nor would accommodation be “otherwise available”, at least from the NHS.

I shall touch briefly on an allied contention concerning entitlement to Housing Benefit which was advanced by Mr Lock to support an interpretation of the National Framework which would require the CCG to pay for new accommodation.

Regulation 9 of the Housing Benefit Regulations 2006 (SI 2006 No. 213) sets out a series of circumstances in which a person is not entitled to claim Housing Benefit. One of those, regulation 9(2)(k), is if he is “in residential accommodation” which in turn is defined as “a care home” or an “independent hospital”. Mr Lock submits that any arrangement for accommodation in which NHS continuing healthcare is provided to the appellant would create a “care home”. In consequence, the appellant would not be able to claim Housing Benefit to defray the rent. No problem over rent would arise if the CCG paid for, or provided, the accommodation.

“Care home” is defined by the Care Standards Act 2000. The consequences of somewhere being a care home are legion. It becomes liable for registration, inspection and a detailed regime of regulation. Section 3(4) of the Care Standards Act 2000 defines a care home:

“(1)

For the purposes of this Act, an establishment is a care home if it provides accommodation, together with nursing or personal care, for any of the following persons.

(2)

They are –

(a)

persons who are or have been ill;

…

(4)

And an establishment in England is not a care home if it is –

(a)

a hospital (within the meaning of the National Health Service Act 2006); or

(b)

a children’s home,

or if it is of a description excepted by regulations.”

A person’s home cannot be described in ordinary language as an establishment. Countless thousands of individuals (and elderly couples) receive nursing or personal care in their own homes arranged by the NHS, by local authorities or arranged by themselves personally. They are not unwittingly living in care homes with all the implications that would bring. We were referred to the decision of this court in R (Moore) v Care Standards Tribunal [2005] EWCA Civ 627; but it was concerned with a different question and is of no assistance on this question.

In the light of the statutory obligations found in section 3 of the NHS Act and my conclusion that the National Framework does not dictate the outcome for which the appellant contends, it remains to consider whether there is any public law failing in the CCG’s decision not to fund alternative accommodation on the basis that it is likely to be available through Midland Heart or a housing authority. For the reasons given by the judge in paragraph [65] of his judgment, quoted in paragraph [20] above, the answer is no. I have set out the factual background in some detail. The appellant has capacity to make the relevant decisions, contrary to the strongly held doubts of those involved in this litigation. She has indicated her willingness to explore alternative options, although her actions after that indication give a different impression. All concerned, including the CCG and Midland Heart, have been willing to assist her to find accommodation away from the West Midlands. Effectively there has been a standoff brought about by the appellant. She has declined offers of assistance in seeking alternative accommodation unless the offer includes an acceptance on the part of the CCG to provide it or fund it. In the meantime, and contrary to her own best interests, she has continued to decline any assistance with her care. As the judge observed, in these circumstances the CCG was entitled to conclude either that the appellant has no reasonable requirement for accommodation provided or funded by the NHS, or that it is not necessary to provide it (or both). There is every reason to suppose that, with the appellant’s co-operation, suitable alternative accommodation will be found for her.

It follows that I would dismiss this appeal.

Nobody reading the history of the appellant’s medical problems can be other than sympathetic to her predicament. Almost every judge before whom this litigation (and its predecessor) has come has expressed the hope that a practical solution will be found which delivers the appellant from her deeply unsatisfactory current situation. That practical solution is in her own hands. The medical evidence in this case, only a small part of which it has been necessary to summarise, is distressing. The appellant has been bedridden for the best part of ten years. She has had minimal professional input into her care since 2010. The practical consequences of that do not need to be spelt out. The heroic efforts of Mr Jeffs, particularly since the input of two volunteer retired nurses came to an end in 2013, attracts the highest praise from the medical professionals, which I echo. But it is not enough for the appellant’s needs. An enormous amount of energy has been devoted to litigation for the past seven years. Whether it has been providing a support structure for the appellant, I know not. But the time has come for the appellant to put litigation to one side and to devote her considerable energy and intellect to working with those trying to help her towards a more comfortable and secure life in better accommodation.

I agree.  As Burnett LJ has said, the CCG and the Secretary of State conceded in this case that the CCG had power under section 3(1)(b) of the NHS Act to provide private accommodation to Ms Whapples.  I am also prepared to proceed for the purposes of this case on the assumption that the concession was correct.  But I would like to make clear that, in the absence of full argument, I remain far from certain that it was, and I would not want anything to suggest tacit approval of the concession. 

Without seeking to decide anything, I would draw attention to the fact that section 3 actually provides that a clinical commissioning group must arrange for the provision of certain things “to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility”.  Those things are in 6 categories that need to be read and understood together.  The first in (a) is “hospital accommodation” and the second in (b) is “other accommodation for the purpose of any service provided under this Act”.  I doubt whether the term “other accommodation” can be construed so broadly as to ignore the context that it immediately follows “hospital accommodation”.  It may be that the section is directing attention to other clinics or places where services under the Act are customarily provided to a number of patients.  That construction would fit in with the remaining 4 things that the clinical commissioning group must provide, which are, in broad terms, services in (c), and services or facilities in (d), (e) and (f).  If private facilities were required, it might be thought that they would be provided under section 3(1)(e) which refers to “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”.  It will be observed that this is subject to the further caveat that the other services or facilities in question are such “as the group considers are appropriate as part of the health service”. 

I agree with Burnett LJ that the proper construction of section 3 is of potential importance, and that any decision on the point must await another case.

I agree with the judgment of Burnett LJ.  Like him I would wish to reserve my position on the correctness of the concession made about the scope of section 3(1)(b), and in a case where that falls for decision Vos LJ's observations will require careful attention.  In this connection I should mention, so that the point is not lost, that Mr Lock pointed out to us that the term "hospital" in section 3(1)(a) has been given a wide meaning - see Minister of Health v General Committee of the Royal Midland Counties Home for Incurables at Leamington Spa [1954] 1 Ch 530 and the decision of a Tribunal of the Social Security Commissioners (chaired by HH Judge Hickinbottom) in R/DLA 2/06 - and that that in turn impacts on the meaning to be given to section 3(1)(b).  But all that is for consideration if and when it arises.