Secretary of State for Work and Pensions v Slavin

A person is not undergoing “medical or other treatment” for the purposes of regulations 8 and 12A merely because NHS-funded specialist care is required by reason of a mental disability. The expression includes medical, dental and nursing treatment. Nursing must be of a professional character, including care provided by qualified or professionally trained nurses, or under appropriate professional supervision.

Skilled personal care by unqualified care-home staff, including behavioural management and assistance with medication, is not thereby nursing. The statutory condition also requires treatment in the institution where the person is maintained as an in-patient. A perceived gap in provision cannot justify a strained construction of the Social Security (Disability Living Allowance) Regulations 1991.

The respondent, who had severe learning disability, autistic traits and challenging behaviour, lived in a privately run specialist care home. The NHS funded his accommodation and care under its continuing healthcare arrangements. The home provided residential and social support, but employed no medically qualified or nursing staff.

A tribunal had held that the home was a hospital or similar institution and dismissed his appeal against the withdrawal of disability living allowance. Upper Tribunal Judge Turnbull held, in an interim decision, that care by the home’s staff was not medical or other treatment and that treatment received away from the home could not satisfy the relevant condition. The Secretary of State appealed.

The central issue was whether the respondent was maintained free of charge while undergoing medical or other treatment as an in-patient in a hospital or similar institution under regulation 12A of the Social Security (Disability Living Allowance) Regulations 1991.

Decision

1. The appeal was dismissed. Richards LJ, with whom Davis and Pill LJJ agreed, held that Upper Tribunal Judge Turnbull had correctly decided the issues addressed in the interim decision.

2. Regulations 8 and 12A of the Social Security (Disability Living Allowance) Regulations 1991 must be read as composite conditions. Although a disability of the mind was an “illness” under section 275(1) of the National Health Service Act 2006, illness and NHS funding did not alone establish that the respondent was undergoing medical or other treatment.

3. The authorities, including Minister of Health v Royal Midland Counties Home for Incurables at Leamington Spa [1954] Ch 530, showed that the expression includes nursing as well as medical and dental treatment. They did not extend it beyond those categories. Their references to professionally qualified or trained nurses were fundamental. Nursing therefore required care of a professional character, whether provided by such staff or, consistently with modern practice, by assistants under qualified nursing supervision.

4. The Lodge supplied demanding and skilled personal care, but neither nursing care nor care under qualified nursing supervision. Behavioural management, physical intervention and support with medication did not convert that care into nursing. The respondent was consequently not undergoing medical or other treatment there.

5. Treatment received away from the institution could not satisfy the regulations. The words “as an in-patient” formed an integral part of the condition and required treatment in the institution where the person was maintained. On the assumed facts, The Lodge was also not a hospital or similar institution and the respondent was not an in-patient.

6. The avoidance of double public funding and an asserted regulatory lacuna could not displace the natural meaning of the regulations. Any gap created by the 2002 amendment to regulation 9 required legislative, not judicial, correction.

• Court of Appeal (Civil Division): Dismissed the Secretary of State’s appeal and upheld the Upper Tribunal’s interim determination.

• Upper Tribunal (Administrative Appeals Chamber): Held that the care provided by The Lodge’s own staff was not medical or other treatment, and that treatment received away from The Lodge could not satisfy regulations 8 or 12A of the Social Security (Disability Living Allowance) Regulations 1991. It left a separate issue concerning treatment at The Lodge by external healthcare professionals unresolved.

• Tribunal: Dismissed the respondent’s appeal against the withdrawal of disability living allowance, finding that The Lodge was a hospital or similar institution.