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

The statutory concept of facilities in section 3(1)(e) of the National Health Service Act 1977 is context-dependent. It is not necessarily narrower than services and may include an entire service provision, including the personnel needed to operate it. A Local Health Board may therefore lawfully fund non-medical services for the prevention of illness, the care of persons suffering from illness, or after-care, where it considers them appropriate as part of the health service. The several paragraphs of section 3(1) are not watertight compartments and may overlap.

Riverside Advice Ltd operated a welfare-rights project for people experiencing mental health difficulties. Cardiff Local Health Board had funded the project, but decided that further direct funding would be outside its statutory powers and offered only reduced funding through a joint Flexibilities Fund.

The claimants sought judicial review. Mr Justice Moses dismissed the application: [2005] EWHC 559 (Admin). The appeal concerned whether the Board could fund the project under section 3(1)(e) of the National Health Service Act 1977, particularly whether statutory “facilities” could include services and the staff providing them.

1. Appeal allowed. The court set aside the order of Moses J. The issue was the proper construction of section 3(1)(e) of the National Health Service Act 1977.
2. Lord Justice Brooke held that the judge had adopted too restrictive an approach to “facilities”. Its meaning is derived from statutory context and includes that which facilitates. Depending on context, it may mean tools, accommodation or plant, but it may also mean an entire service provision, such as a laundry service or day centre, together with the personnel required to run it.
3. The distinction between “services” and “facilities” in section 3(1) does not make facilities necessarily different from, or narrower than, services. Section 3(1)(d)’s use of “other facilities”, following provisions referring to accommodation, supports a broader reading. The provisions of section 3(1) are not watertight compartments and may overlap.
4. Applying that construction, a Local Health Board may lawfully provide funding for services such as the Riverside project if it considers them appropriate as part of the health service for the purposes identified in section 3(1)(e). The Board’s modern statutory powers to co-operate with local authorities did not determine the basic scope of its section 3(1)(e) functions.
5. Lady Justice Arden agreed. She added that there was no need to invoke a “always speaking” presumption: the court’s interpretation followed from the ordinary meaning of Parliament’s words in the statutory context. Lord Justice Longmore also agreed, stressing that the National Health Service is a living and growing organism and that section 3 should be construed consistently with a comprehensive and co-ordinated health service.
6. The court did not decide the alternative argument based on section 2(a), because the appeal was resolved under section 3(1)(e).

• Court of Appeal (Civil Division): appeal allowed and the order of Moses J set aside.
• Administrative Court: Mr Justice Moses dismissed the judicial review claim: [2005] EWHC 559 (Admin).