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

The statutory powers of a local health board to fund health-related activities depend on the distinction between a service and a facility under the National Health Service Act 1977. Non-medical services which prevent illness or deterioration, although valuable to mental health, do not fall within section 3(1)(f), which is confined to services required for diagnosis and treatment of illness. Section 2 cannot create an independent power to provide a service where section 3 imposes no duty to do so. A facility under section 3(1)(e) is the means by which a service is provided or made more effective, rather than the service itself. The application was therefore dismissed because welfare-benefits advice and support provided by a voluntary organisation constituted a service outside the statutory functions transferred to the local health board.

Riverside Advice provided specialist welfare-benefits advice and support to people with mental health difficulties in Cardiff. Following a favourable review, the Cardiff Local Health Board declined to renew its service-level agreement because its Director of Finance considered that the Board lacked statutory authority to fund the project. Alternative funding was available through the Flexibilities Fund, but at a lower level.

The claimants sought judicial review of the decision. The central issue was whether Riverside’s activities fell within the health-service functions conferred on local health boards under the National Health Service Act 1977, particularly sections 2 and 3.

1. The application was dismissed. The Board did not have statutory authority under the National Health Service Act 1977 to fund Riverside’s project.
2. The functions transferred to the Board included the Secretary of State’s functions under sections 2 and 3, but not the target duty in section 1. Section 2 was an adjunct to the duties imposed by section 3 and did not operate as an independent power to provide services outside section 3.
3. Section 3 distinguishes between “services” and “facilities”. Medical, dental, nursing and ambulance services under section 3(1)(c) may be used for the purposes identified in the section. Other services under section 3(1)(f) are limited to those required for the diagnosis and treatment of illness. The provision of welfare-benefits advice and support was not such a service.
4. The work could not be treated as treatment merely because it reduced stress or prevented deterioration in mental health. Reading “treatment” in that way would erase the statutory distinction between treatment and prevention.
5. A facility under section 3(1)(e) means the means by which a service is provided, or by which it more readily achieves its purpose. It does not include the provision of the service itself. Riverside’s primary activity was providing the service, rather than supplying a facility for another service.
6. The distinction between direct and indirect prevention of illness did not assist the claimants and found no basis in the statutory scheme. Sections 16CC, 45 of the Health and Social Care (Community Health and Standards) Act 2003, and the health-and-well-being provisions did not widen the functions under section 3.
7. The arguments based on legitimate expectation and unfairness were not determined in the claim. Permission to appeal was granted. No order for the Board’s costs was sought, and the claimants’ costs were to be subject to legal aid taxation.

Not stated in the judgment.