Keating & Ors, R (on the application of) v Cardiff Local Health Board

MR JUSTICE MOSES:

Introduction

Riverside Advice Limited ("Riverside") is a project 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 provided by Riverside. Riverside is able to respond to their needs and assist them in obtaining those benefits to which they are entitled.

This is a dispiriting case. After a review in the middle of 2004, conducted by the Cardiff Local Health Board, ("the Local Health Board") the defendant, it concluded that all the criteria specified for the review had been met save in minor respects. The review recommended a three year agreement reflecting the highest achievable score within the review. But at the meeting of the review panel on 12th July 2004, the Director of Finance, who was, after all, only doing her job, took the view that it would be ultra vires for the defendant to fund the project.

Accordingly funds can now only be provided pursuant to a NHS Flexibilities Grant for the period April 2005 to March 2006. Although the source of that grant, the Flexibilities Fund, is jointly administered by the Local Health Board and the local authority, the amount available is less than that which the project was awarded in the past year of funding. Previously it had been awarded a sum of £50,316 for the year 2003 to 2004, whereas the sum now apparently available from the Flexibilities Fund is £34,000. This represents approximately 8 months of that which Riverside would otherwise have been awarded had it been able to reap the benefit of its top prize at the review.

The issue in this application is not as to the value of Riverside's work, but it is whether the Local Health Board is correct in concluding that it would be outwith its powers to fund this project.

Before considering the statutory framework on which this issue turns, it is as well to identify the nature of the work undertaken by the project. It amply demonstrates its value and why the diminution of the fund is so poor a response to the credit Riverside deserves for the work it undertakes.

The nature of the work undertaken by Riverside

The project has its purpose 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 agreement between the Local Health Board and Riverside for 2003 to 2004 identified the services covered as being "Welfare benefits advice to people with mental health problems." The agreement objectives were described as:

"... to secure, for the residents of Cardiff, the provision of [a] range of health care for defined client groups and specialities."

It recorded that the agreement was "underpinned" by the mutual commitment of both parties to ever improving health. The services to be provided under the agreement were described as including: specialist expertise and knowledge of the needs of people with mental health difficulties and 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; consultancy, telephone advice and support to people working with clients with mental health difficulties.

The end of the year report, dated April 2003, described what Mr Fordham for the claimants identified as the sub-project, which is the subject matter of the instant application; namely the advice to those suffering from mental health in relation to their benefits. The end of the year report identified those strategies and plans pursuant to which Riverside undertook its work. In particular it quoted a Minister for Health and Social Services, Jane Hutt, in a forward to a document "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 Citizens Advice Bureau commented that the vast majority of those with mental health difficulties were reliant on the social security system. It concluded that those assisting the sufferers with coping with the system would:

"... contribute to security that it facilitates people's recovery from illness. In practice complexity, rules, poor administration, the nature of forms and procedures often conspire to create outcomes that undermine people's security because of a lack of awareness and understanding about mental health issues and a failure to recognise the difficulties mental illness creates for people who are unwell at the point when they are least able to cope because of their mental health."

The report continued by noting the link between poverty and ill-health which it described as being well-established.

The important function of preventing deterioration in health due to stress related to difficulties of access to benefits to which the mentally ill are entitled.

That point is well made in a statement by Alexandra Whitfield, a solicitor at the Public Law Project, who brings these proceedings on behalf of clients of Riverside Advice. At paragraph 19 of her statement 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."

David Bland, employed by Riverside as a Specialist Welfare Rights Case Worker, describes in greater detail the nature of his work. He points out that his clients, with a range of mental health difficulties, suffer from exacerbation by the challenges and stresses of dealing with the social security system. Advice and support maintain and improve their mental well-being (see paragraph 5).

At paragraphs 9 and following he describes in more detail the nature of his work. He points out that clients with mental health problems are particularly concerned about disclosing information as they think this may lead to their being detained. They do not like to disclose the full impact of their problem. In discussions with them, since he is a specialist in mental health, they appear more relaxed and able to discuss the full impact of their condition. He describes a particular client who suffered from such severe anxiety at the prospect of attending an appointment to discuss the welfare benefits that he was unable to attend that appointment and lost his entitlement. When Mr Bland was able to attend with him and give him support and reassurance his fear and anxiety were reduced.

Those who have praised the work of this project emphasise the huge impact this work has on ameliorating the conditions from which the clients suffer and assisting in stress reduction.

The facts I have outlined make it clear that it would be wrong to regard the service provided by Riverside to the mentally ill as merely a service in giving advice as to welfare benefits. It is narrower and more focused and it has commanded widespread support.

The Whitchurch Hospital has congratulated Riverside on the excellent addition to the service generally provided to those suffering in their mental health (see letter dated 14th August 2002). That support was echoed by the Day Services Manager of Cardiff in a letter dated 30th August 2002, and others have more recently supported and praised the work of Riverside.

It is thus not surprising that Riverside should have done so well at the review of voluntary services, known as the Joint Review of the Service Level Agreements, held by Cardiff and The Vale of Glamorgan Local Health Boards in June and July 2004. The review went through three stages. Riverside was scored against weighted criteria leading to a report and final recommendation. The report showed the following strengths:

"• The aims and objectives of the organisation are relevant to the LHB agenda

• The service contributes towards improving health status and LHB targets

• The service contributes towards reducing health inequalities

• Clearly linked to poverty and social isolation

• Evidence of value for money

• Huge demand, well used

• Highly positive results from service users' surveys"

It concluded:

"Criteria met - only minor areas for action. Action plan to be agreed and implemented by end of March."

This report was sent out in September 2004 and recommended, in its final recommendation, to move to a three-year agreement as opposed to a one-year agreement subject to the implementation of the agreed action plan outlined above. This recommendation was the top prize which Riverside could have achieved. However, the recommendation was met by a letter dated 27th September 2004 from the chief executive saying that the decision had been taken to give 6 months' notice of termination of its service level agreement with Cardiff Local Health Board. It was said:

"... it was not felt that your organisation was delivering health outcomes in line with the Local Health Board's service and Financial Framework."

This must have seemed extremely odd in the light of the review, but some further explanation emerged; namely that the Director of Finance was concerned that the Local Health Board had no statutory authority for funding. The chair of the review panel recorded in the 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 current SLA could not be renewed from April 2005."

The description in the letter informing Riverside of the outcome of their services as being merely a welfare benefit advice service is plainly inadequate. The project in question was, as I have said, targeted at mental health sufferers. Its purpose was to ameliorate the consequences of mental illness, exacerbated by difficulties in coping with the social security system upon which so many of those suffering from mental illness rely. The project clearly achieves success. But notwithstanding that success, the essential question is whether the Local Health Board has authority under the relevant statutory scheme to fund this project.

The essential point on which resolution of that issue turns is whether the work undertaken by Riverside comes within the definition of a "Health Service provision as covered within the main part of the Act" by which is meant the National Health Service Act 1977.

I should record that the claimants reserve for appeal the question whether it would be open to them to assert a breach of its legitimate expectation despite the fact that to do so would be to honour the expectation by action which would be ultra vires. The point was not argued before me.

This case requires analysis of the health service functions which Parliament conferred on the Secretary of State pursuant to the National Health Service Act 1977 ("the 1977 Act"). It does not turn, save for one point to which I will come later, on the statutory process by which those functions would devolve to the defendant.

Transfer of powers to the defendant

Section 16BA(1) of the 1977 Act as amended provides:

"The National Assembly for Wales may establish bodies to be known as Local Health Boards with a view, in particular, to their exercising -

(a)

functions of Health Authorities transferred or to be transferred to the Assembly by order under section 27 of the Government of Wales Act 1998 (reform of Welsh health authorities),

(b)

other functions of the Assembly relating to the health service."

By the Health Authorities (Transfer of Functions, Staff, Property, Rights and Liabilities and Abolition (Wales) Order 2003 No 813 (W98), read with the Health Authorities (Transfer of Functions, Staff, Property, Rights and Liabilities and Abolition) (Wales) (Amendment) Order 2003, made pursuant to section 27 of the Government of Wales Act 1998, all functions of health authorities were transferred to the National Assembly of Wales. By Article 3 of the transfer order:

"... all the functions of each Welsh health authority with respect to the whole of the area for which each such authority acts are transferred to the National Assembly for Wales."

The defendant Local Health Board was established by The Local Health Boards (Establishment) (Wales) Order 2003, Welsh SI 2003 No 148, made by the National Assembly of Wales in the exercise of powers conferred by section 16BA(1)-(3) and section 126(4) of the 1977 Act and schedule 5B paragraphs 1 and 2 thereto. Article 3 of the Establishment Order established local health boards listed in the schedule, amongst which was the defendant. Relevant property, rights, liabilities and staff were also transferred under a different statutory instrument.

So far as the functions of the Board are concerned section 16BB of the 1977 Act provides:

"(1)

The National Assembly for Wales may direct a Local Health Board to exercise in relation to its area any functions which -

(a)

were exercised by a Health Authority in relation to any part of the same area, and

(b)

have been transferred to the Assembly as mentioned in section 16BA(1) above."

There is also power to direct the Local Health Board in relation to its area to exercise other functions of the Assembly (see section 16BB(2)).

Pursuant to section 16BB the authority made Local Health Boards (Functions) (Wales) Regulations 2003. By Regulation 2(2) of these Regulations the persons for whom a local health board is responsible in any year are the persons usually resident in the area for which the local health board is established.

Pursuant to Regulation 3 functions of the relevant health authority, as at midnight 31st March 2003, transferred to the National Assembly for Wales pursuant to section 27 of the Government of Wales Act except for certain specified functions which were to be exercised by the Local Health Board. The functions which were transferred included the functions of the former Bro Taf Health Authority. The functions transferred to the health authority and by means of the statutory instruments and statutes to the Local Health Board included functions of the Secretary of State under the 1997 Act.

"1 Secretary of State's health duty as to health service

(1)

It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement -

(a)

in the physical and mental health of the people of those countries, and

(b)

in the prevention, diagnosis and treatment of illness,

And for that purpose to provide or secure the effective provision of services in accordance with this Act.

(2)

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.

"2 Secretary of State's general power as to services

Without prejudice to the Secretary of State's powers apart from this section, he has power -

(a)

to provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act; and

(b)

to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.

This section is subject to section 3(3) below.

"3 Services generally

(1)

It is the Secretary of State's duty to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements -

(a)

hospital accommodation;

(b)

other accommodation for the purpose of any service provided under this Act;

(c)

medical, dental, nursing and ambulance services;

(d)

such other facilities for the care of expectant and nursing mothers and young children as he considers are appropriate as part of the health service;

(e)

such 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 he considers are appropriate as part of the health service;

(f)

such other services as are required for the diagnosis and treatment of illness.

[(1A) The Secretary of State may provide or secure the provision of anything mentioned in subsection (1) above outside England and Wales.]

(2)

Where any hospital provided by the Secretary of State in accordance with this Act was voluntary hospital transferred by virtue of the National Health Service Act 1946, and -

(a)

the character and associations of that hospital before its transfer were such as to link it with a particular religious denomination, then

(b)

regard shall be had in the general administration of the hospital to the preservation of that character and those associations.

(3)

Nothing in section 2 above or in this section affects the provisions of Part II of this Act (which relates to arrangements with practitioners for the provision of ... ophthalmic and pharmaceutical services).

[(4) For the purposes of the duty in subsection (1), services provided under -

(a)

section 16CA(2) or 16CC(2) below, or

(b)

a general medical services contract or a general dental services contract,

Are to be regard as provided by the Secretary of State.]"

By Regulation 3(1) and column 1 of schedule 1 of The National Health Service (Functions of Health Authorities and Administration Arrangements) Regulations 1996 SI No 708 ("the 1996 Regulations"), the Secretary of State's functions under sections 2 and 3 of the 1977 Act are to be exercised by the health authorities in Wales. Thus those functions have now been transferred to the Local Health Board.

Not surprisingly, having regard to the terms of section 1, the functions under section 1 were not conferred on the health authorities and therefore have not been transferred to local health boards.

Features of the 1977 Act

It is to be noted that the duty of the Secretary of State under section 1 is to be distinguished from the duties identified in section 3. It is properly described as a target duty (see the latest edition of Fordham, paragraph 39.3.3, and the authorities dating back to R v Secretary of State for Social Services ex parte Hincks [1980] 1 BMLR 93). It is not surprising that that duty was not transferred to local health authorities and to a Welsh Local Health Board. It is a duty to continue promotion in England and Wales of a comprehensive health service. It is a duty to provide or secure effective provision of services for the purpose of such promotion.

Although there was a dispute between the parties as to the extent to which section 1 was of assistance in construing sections 2 and 3, I do not think that resolution of that dispute matters. Mr Fordham, on behalf of Riverside, argued that section 2 had no life and made no sense independently of section 1. Mr Herberg, on behalf the Cardiff Local Health Board, identified a number of duties conferred, by virtue of Regulation 31 and column 1 of schedule 1 of the 1996 Regulations on local health authorities and subsequently on local health boards. Section 2 can be read in the light of any or all of those many duties.

But the resolution of that dispute does not matter because the relevant provisions of section 3 refer to, for example, facilities, which the Secretary of State "considers are appropriate as part of the health service" (see also section 3(1)(e)).

The health service is that which is referred to in section 1 as a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and in the prevention, diagnosis and treatment of illness (see section 128(1) of the interpretation section of the 1977 Act).

Moreover, in the instant case, no question arises as to whether the Local Health Board considered the provision of the facilities appropriate as part of the health service. The Local Health Board was, as I understand it, content to fund this service in accordance with the outcome of the review, had it power to do so. The only reason it has not done so, save as part of the administration of the joint Flexibilities Fund, is because it regards itself as having no statutory authority to do so.

Section 2 is merely an adjunct to those duties conferred on the local health body by the 1996 Regulations identified in section 3. This case turns, in my view, on a proper construction of section 3. The first feature of section 3 which is of note is that the section distinguishes between services and facilities. The services identified in section 3(1) are medical, dental, nursing and ambulance services (see section 3(1)(c)). Their purpose is not identified. Those services may therefore be deployed for any purpose such as securing an improvement in physical and mental health and in preventing, as well as diagnosing and treating, illness, provided only that the Local Health Board considers them necessary to meet all reasonable requirements (see the full-out words at the beginning of section 3(1)).

The "other services" identified by section 3(1)(f) are plainly not medical, dental, nursing and ambulance services, but the purposes for which those services may be provided are limited to diagnosis and treatment of illness. It is striking that section 3(1)(f) makes no reference to the prevention of illness. Thus the obligation to provide "other services" in contrast to the obligation to provide medical or dental services, is limited to those required for the diagnosis and treatment of illness.

The Provision of Services by Riverside

Mr Fordham contended that insofar as Riverside provides services they fall within section 3(1)(f).

I disagree. It is plain that insofar as Riverside provides services they are not medical, dental, nursing or ambulance services. Moreover, they are not services, in my view, "required for the diagnosis and treatment of illness". If they are services they clearly ameliorate the condition of those suffering from mental illness. The ability to guide and support those mentally ill through the maze of benefits to which they are entitled, and the consequential ability to include and not exclude those so suffering from society, clearly has a significant impact on the mental well-being of those suffering. Absent such assistance it is plain that those faced with the problems of claiming benefits would suffer stress and a deterioration in their condition. But that, in my judgment, does not bring any such service, if that is what it is, within that which is required for diagnosis and treatment.

Of course, "treatment" can be read widely, but bearing in mind that the section draws a distinction between treatment and prevention (contrast the wording of section 3(1)(e) and the wording of 3(1)(f)), it is not possible to read the word "treatment" so widely as to include the prevention of illness or prevention of deterioration which the work undertaken by Riverside affords.

In my view the only means by which Riverside can bring itself within section 3(1) is by bringing its work within section 3(1)(e). In short, Riverside must show that it provides "... facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness..."

The striking feature of section 3 is that it does draw a distinction between facility and service. The word "facility" is not defined in the interpretation section (section 128). It is used in section 23 which confers a power on the Secretary of State to make available to any voluntary organisation eligible for assistance under the Health Services and Public Health Act 1968: "any facilities... provided by him for any service under this Act."

The word "facility" also appears in section 72 which makes reference to applications for permission to the Secretary of State to use accommodation or facilities for the purposes of providing medical, dental, nursing or ambulance services.

Further light is thrown on the meaning of the word "facility" in section 3 in its structure. Subsection (1)(a) and (b) refer to accommodation. Subsection (3)(1)(d) refers to "other facilities" thus broadening the reference to one single facility, namely accommodation.

Mr Fordham, on behalf of the project, drew attention to section 2(b) in the context of seeking to construe the word "facility". This refers to a power to do any other thing whatsoever calculated to facilitate the discharge of a duty. A facility, he contended, is that which facilitates. Thus it is that which makes a service more readily available, or that which eases the path of access. He relied in support on rulings in earlier decisions as to the meaning of "facility" in different statutory contexts.

In Midland Greyhound Racing Co Limited v Foley [1973] 1 WLR 324, a "facility" included anything which facilitated the bookmaker's undertaking and was prohibited under the Betting, Gaming and Lotteries Act 1963. But the Secretary of State does not provide facilities when considering leave to enter under the Immigration Act 1971 so as to trigger the operation of the Sex Discrimination Act 1975 (see R v Immigration Appeal Tribunal ex parte Kassam [1981] 1 WLR 1037). There the word was treated as akin to goods or services. In Westminster City Council v Ray Alan Ltd 1 WLR 383, the word "facility" was used in conjunction with accommodation and services and was regarded as that which made the service available to customers to use in what Ormrod LJ described as "a more passive sense than the activities implied in the word 'services'" (see page 386 at c).

It is trite to observe that little assistance can be derived from the meaning of a word in a different statutory context. In the instant case the use of the word "facility" is clearly to denote something different to services, otherwise it is plain that the statute would not have made such a distinction. There is no obligation on the Secretary of State, and thus the Local Health Board, to provide a service for the prevention of illness, care, or after-care specified in section 3(1)(e). There is an obligation to provide a facility for those purposes.

In order to make sense of that distinction it is necessary to exclude from the meaning of the word "facilities" the provision of a service. That distinction can only be achieved by interpreting the word "facility" in a narrower sense than the word "service". Any other interpretation would fail to preserve the distinction. Read more narrowly a facility must be the means by which a service is provided or the means by which a service more readily achieves its purpose, but it does not mean the service itself. If the word "facility" is read more broadly no sensible distinction can be made between service and facility. The word "service" would clearly have been of sufficient breadth to cover facilities. After all, the means by which medical, nursing and ambulance services are provided is clearly covered in section 3(1)(c).

Moreover, the distinction cannot be accidental. Its purpose was to limit the obligations of the Secretary of State, and thus of health boards, not to extend them. Were it otherwise there would have been no need to draw the distinction at all. Section 3(1)(f) could have referred to the purposes referred to in (e). It is clear that the statute sought to avoid the imposition of any obligation on the Secretary of State to provide non-medical services for the prevention of illness and the other purposes identified in section 3(1)(e). Absent such limitation the Secretary of State and local health boards would have been under an obligation to fund many desirable activities designed to prevent illness, such as the provision of healthy food.

It is true that the reference to the health service in (e) must be a reference back to section 1 (see section 128). Thus the health service does include a service to prevent, as well as to treat, mental illness, but that does not remove the need to draw a distinction between the obligation to provide facilities to prevent illness and the absence of any such obligation to provide services which are not medical or nursing services for that purpose.

Nor is section 2 of assistance. Whilst there is power to provide services or do anything else calculated to facilitate the discharge of a duty, that power cannot be construed as being of sufficient width to provide the very service which the facility is designed to make more readily available. The power conferred under section 2 is designed to augment the duty under section 3 not to confer a power to do anything for the purposes set out in section 3 where no duty to do so is imposed. Section 2, in short, does not trigger any power unless a duty has first been identified within section 3. Since section 3 creates no duty to provide a non-medical or nursing service for the prevention of illness, section 2 cannot be interpreted as conferring a power to do so.

Mr Fordham contended that it was absurd to identify an obligation to provide a facility, in other words the means by which a service is made more readily available, without any obligation to provide the service to give the facility some content. I do not agree. The Secretary of State is already under an obligation to provide medical or nursing services for the prevention of illness and the care identified in section 3(1)(e). I see no futility in requiring him or local health boards to provide a facility where others provide the service to be undertaken with the aid of that facility for those purposes, if it is necessary to meet all reasonable requirements of the health service.

The evidence adduced on behalf of Riverside makes it clear that its primary work is providing the service described by one of its case workers, Mr Bland. The service requires visits, particularly to those who may be reluctant and unable to help themselves. The provision of services in the agreement to which I have already referred and described in the report also makes this clear. The emphasis is on the service which Riverside provides, not upon the means by which it provides that service.

There was some controversy, particularly in writing, as to a distinction to be drawn between the direct and indirect means of preventing illness. The distinction between that which directly and indirectly prevents illness is hard, if not impossible, to draw. It finds no echo in the statutory scheme. I am prepared to assume that, certainly in some cases, Riverside's activities directly alleviate the symptoms of mental illness. But that merely lends force to the conclusion that Riverside provides a service.

I conclude, therefore, that the activities of Riverside in relation to mental health sufferers fall outwith section 3 of the 1977 Act and thus outwith the functions exercisable by health authorities under the 1966 Regulations and thereafter transferred by the Welsh Assembly to the Local Health Board.

Other Provisions

Section 16CC provides:

"Each Primary Care Trust and Local Health Board must, to the extent that it considers necessary to meet all reasonable requirements, exercise its powers so as to provide primary medical services within its area, or secure their provision within its area."

This section is of no assistance since it refers only to primary medical services amongst which the services provided by Riverside do not number. I gain no assistance from the contrast between that narrow provision and the wider obligations imposed under section 3.

Mr Fordham also referred to the provisions of sections 45(2) of the 2003 Act which replaced section 18 of the Health Act 1999. Section 18 provided:

"(1)

It is the duty of each Health Authority, Primary Care Trust and NHS trust to put and keep in place arrangements for the purpose of monitoring and improving the quality of health care which it provides to individuals.

...

(4)

In this section -

'health care' means services for or in connection with the prevention, diagnosis or treatment of illness..."

Section 45 of the Health and Social Care (Community Health and Standards) Act 2003 provides:

"(1)

It is the duty of each NHS body to put and keep in place arrangements for the purpose of monitoring and improving the quality of health care provided by and for that body.

(2)

In this Part 'health care' means -

(a)

services provided to individuals for or in connection with the prevention, diagnosis or treatment of illness..."

I do not understand how those provisions can assist in the interpretation of sections 1 to 3 of the 1977 Act where the obligations under section 3 are framed in narrower terms than that which is encompassed in the concept of health care. Moreover, section 45 is contained within Part 2 of the 2003 Act which, as its name heralds, is concerned with the monitoring and maintenance of standards. It is, however, linked to obligations imposed pursuant to the National Health Service Reform and Health Care Professions Act 2002. By section 24(1):

"It is the duty of -

(a)

each local authority in Wales, and

(b)

each Local Health Board any part of whose area lies within the area of the local authority,

Jointly to formulate and implement a strategy for the health and well-being of members of the public in the local authority's area (a 'health and well-being strategy')."

Those references to health and well-being are the source of the Flexibilities Fund out of which it is now sought to support Riverside. But those references merely serve to draw a contrast with the narrower wording of the 1977 Act. Mr Fordham contended that the fact that powers and obligations have now been widened so as to impose a duty of cooperation between local health boards and a local authority does not mean that the power to fund did not exist before. That is true, but it does not solve the difficulty exposed by the difference between the concept of health care, or health and well-being, and the narrower words of section 3.

Unfairness

Although this point found no mention in the claim, in his outline written argument Mr Fordham suggested that the Local Health Board had been guilty of unfairness in failing to secure funding, following the review, at least equal to the rate previously achieved. The point, quite apart from the fact that it was not pleaded, is, unfortunately, hopeless. Riverside was advised by the Local Health Board to seek funding from the Flexibilities Fund. The fact that a lower sum was awarded does not demonstrate that the Local Health Board took no steps to procure alternative funding, or washed its hands of, what Mr Fordham described in writing as, a conspicuous unfairness.

Riverside's Part in Health Policy

I started this judgment by reference to the valuable work of Riverside. Its value is demonstrated by the important role Riverside plays in fulfilling policies relating to health in Wales. I have already referred to some of those policies. Its work is clearly part of the Welsh Assembly's policy document "Improving Health in Wales - A Plan for the NHS and its Partners." That plan explained how Wales had often led the field in innovative and effective approaches to health and health services. It commented:

"Tackling ill-health means addressing... challenges including economic and social inequality."

In Adult Mental Health Services for Wales: Strategy Document, the document recognised:

"Mental health promotion and the prevention of mental illness are central elements of public health... Initiatives to tackle social disadvantage including action aimed at reducing poverty, increasing employment, improving housing and addressing homelessness and other aspects of social exclusion will make a significant impact..."

Further comments were made as to that link in the document "Adult Mental Health Services: A National Service Framework for Wales."

Further, there is ample material to demonstrate how important welfare, and thus advice as to welfare, is to those suffering from illness, and all the more to those who have the misfortune to suffer from mental illness. The significance of the work undertaken by Riverside in the alleviation of suffering should not be understated. In a document called "Welfare Advice in General Practice - The Better Advice, Better Health Project in Wales", the authors demonstrate how that project has not only been the most comprehensive introduction of advice services into GP practices that has ever taken place in the United Kingdom, but has now been incorporated into the core health budget for Wales and become part of the mainstream health service.

In the Citizens Advice Bureau document "Prescribing Advice 'health and inequality'", the then minister Tessa Jowell's quotation, namely that health authorities will be judged by how they tackle inequality, is emphasised by the fact that it is recorded that health authorities currently provide almost £2 million to fund Citizens Advice Bureau's health related projects.

This raises another point on which Mr Fordham placed reliance. There was, in relation to the review, listed a number of other bodies who still receive funding. They did less well in the review, but apparently they are funded under single year agreements. Those bodies include bodies which run a residential home (see Hafod Care) and a body known as South Wales Mental Health Advocacy Service and others.

Mr Fordham commented that it was difficult to see how there could be power to provide finance for such bodies, but not the project undertaken by Riverside. The difficulty with this submission is that it is impossible to determine whether the provision of funds to those bodies is or is not outwith the powers of the Local Health Board without a proper analysis of their functions and the means by which funds have been provided. The Local Health Board was not in a position to assist me at the hearing. Given the need for a speedy response to this case neither side sought an adjournment so that the cases of those other bodies could properly be considered. Whilst I have some suspicions as to the inequality of treatment between those bodies and Riverside, it may be better for me to say nothing further lest all that happens is that there is a withdrawal of support for those bodies.

None of those considerations can confer a power on the Local Health Board to fund this project, run by Riverside, absent statutory authority. I have sought anxiously to reach the opposite conclusion. I cannot imagine how the Local Health Board could regard this case as anything but a miserable victory. Perhaps it is thought that the Flexibilities Fund would be a more generous fund. I hope so. It is depressing that statutes designed no doubt to improve the provision of health care should merely lead to diminution in the funds.

It is particularly disheartening to read, in the letter from the operational manager, dated 30th November 2004, when saying that the maximum funding that might be raised is £34,000, that the process required the sum to be identified from savings made in existing projects. I cannot understand why that should be, but then I am not responsible for administration of the fund. The consequence is that a Flexibilities Fund, designed to achieve better health care merely results, because of the eagle eyes of the financial director, in the loss of £18,000. In a service, as I have found it to be, which, through the dedication of its staff, does so much to achieve the policy contained within the Adult Mental Health Services for Wales Strategic Document, the reduction in the sum of £18,000, so important to the health of those suffering from mental health but so paltry in the context of health budgets, must be a bitter pill to swallow.

MR FORDHAM: My Lord, I understand that the Board does not seek any order for costs.

MR JUSTICE MOSES: I should hope not, I am just sorry they are not here to hear what I have said.

MR WEEKES: My Lord, that is the position.

MR JUSTICE MOSES: You ask for judgment?

MR WEEKES: My Lord, we would be grateful for judgment.

MR JUSTICE MOSES: I shall give judgment dismissing the application.

MR FORDHAM: Can I ask for a Legal Aid Taxation please --

MR JUSTICE MOSES: Yes.

MR FORDHAM: -- of my clients' costs?

MR JUSTICE MOSES: Yes.

MR FORDHAM: My Lord, can I then address you in relation to permission to appeal?

MR JUSTICE MOSES: I am proposing to grant it, subject to any counter submissions.

MR WEEKES: My Lord, the Board's position is that it is one for your Lordship to deal with.

MR JUSTICE MOSES: I shall grant you permission.

MR FORDHAM: I am grateful.

MR JUSTICE MOSES: Whether it is going to get you anywhere for this year -- I am not going to say expedition or anything. That will be up to the Court of Appeal.

MR FORDHAM: Can I address you on that?

MR JUSTICE MOSES: It is not for me, is it? It is for them. I cannot direct how they are to handle it.

MR FORDHAM: You cannot force them to list it. What I would ask your Lordship to do is to express a view that it would be appropriate for it to be listed before the end of the summer term. Can I explain why?

MR JUSTICE MOSES: All I can say is that it is obviously urgent.

MR FORDHAM: Thank you.

MR JUSTICE MOSES: But I cannot even say that, because if a puny judge starts saying this is what you have to do --

MR FORDHAM: I am not asking you to --

MR JUSTICE MOSES: Obviously it is urgent because you need to know where you are going to be come the end of -- because you will have run out of funds.

MR FORDHAM: There are two things about that: one is to decide whether to spread two thirds of the funding. Do you cut back that third or do you go full tilt in the hope that you can get the full amount restored? That is the first problem. The second problem is the problem of the horizon; do people start looking for another job and so on.

MR JUSTICE MOSES: You might get another fund. You might get another annual fund.

MR FORDHAM: You might.

MR JUSTICE MOSES: I was rather hoping that what I had said in my judgment might persuade the Flexibilities Fund to show greater flexibility.

MR FORDHAM: We will certainly be asking them to do that. That is the first point. The second point is that -- leave aside the projects that we were not able to address, and just take, for example, the Better Advice, Better Health in Wales, which we know all about, and that was precisely this kind of service, funded by the Welsh Assembly, and that is ultra vires. I am not trying to reopen -- but what I am saying is that it is very important that we have the opportunity, as soon as possible, to invite the Court of Appeal to see if they can vaguely identify --

MR JUSTICE MOSES: Absolutely. You will have to tell them that. All I can say is that there are all sorts of considerations for urgent resolution, not only how you fund this business but also because of the consequences in relation to others.

MR FORDHAM: I am very grateful for that.

MR JUSTICE MOSES: I will say that and how the Court of Appeal deals with it is a matter for them.

MR FORDHAM: Would your Lordship please direct that we are entitled to an expedited transcript of the judgment, given that it was a read out, and we will have to formulate our grounds and our skeleton.

MR JUSTICE MOSES: I had to read it out otherwise you would not have had it this term.

MR FORDHAM: I am not criticising. If you would direct an expedited transcript that would greatly assist.

MR JUSTICE MOSES: But I am not going to be here next week, so I will not be able to correct it until the week after next, but I will do it then.

MR FORDHAM: Would your Lordship be prepared to direct that it be released unapproved?

MR JUSTICE MOSES: Absolutely, yes, yes, you can have it unapproved, and you can have -- the shorthand writer probably wants my notes actually, but if you have that photocopied you can have my notes.

MR FORDHAM: My Lord, I think if you are prepared to order an expedited transcript and we have it unapproved. We have made notes --

MR JUSTICE MOSES: You can have that, yes. I shall approve it because by the time it gets to the Court of Appeal it will have been approved, but you can then get on working with it.

MR FORDHAM: Can I try and get your Lordship to say one more thing, and that is, as your Lordship knows, it is 14 days for the appellant's notice and we are supposed to put in our skeleton argument at the same time. If your Lordship would allow me an additional 7 days for the skeleton.

MR JUSTICE MOSES: Do I have power to do that?

MR FORDHAM: Yes.

MR JUSTICE MOSES: Well, I shall certainly say that.

MR FORDHAM: I am very grateful. It is CPR 52.4.

MR JUSTICE MOSES: Yes, that sounds very sensible.

MR FORDHAM: So appellant's notice within 14 days, but the skeleton argument a further 7 days, we would be very grateful.

MR JUSTICE MOSES: I might look at this judgment, because I think all that stuff about transfer I can cut down. I think I just put in much too much about all those Rules. All one needs is the 1966 and a record that they all got to the local health authority.

MR FORDHAM: That is right, but you do need, as a point of reference, to know how that journey works and --

MR JUSTICE MOSES: So you do not object to it all being there?

MR FORDHAM: No, Mr Herberg put it in his skeleton argument. It saves time to have it there.

MR JUSTICE MOSES: Thank you.

MR FORDHAM: My Lord, there is nothing further.

MR JUSTICE MOSES: All right then. Thank you very much indeed.