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

Section 3 of the National Health Service Act 2006 gives clinical commissioning groups power to fund ordinary residential accommodation where appropriate, but it does not ordinarily require them to do so merely because accommodation would assist a person’s healthcare. The decision must consider the individual’s reasonable requirements, what is necessary, and the availability of accommodation through housing or means-tested welfare provision. Absent special circumstances, it will usually be lawful to expect accommodation needs to be explored through those alternative routes before NHS resources are used. Where the claimant’s ability to co-operate is affected by a possible lack of mental capacity, the capacity issue should be addressed in the Court of Protection before the NHS is held legally obliged to provide accommodation.

The claimant sought judicial review of a clinical commissioning group’s refusal to accept that it was obliged under section 3 of the National Health Service Act 2006 to provide her with suitable accommodation as part of her free NHS healthcare. She suffered severe physical symptoms associated with post-traumatic stress disorder and required accommodation with additional space and provision for a carer, potentially outside the West Midlands.

The CCG accepted that it had power to fund ordinary residential accommodation in an appropriate case, but maintained that suitable accommodation should first be explored through a housing association or local housing authority, supported by means-tested benefits where necessary. The central issue was whether section 3 required the CCG to fund accommodation in the circumstances, particularly while questions remained about the claimant’s mental capacity and her ability to co-operate with alternative providers.

1. Claim dismissed. Ground 2 was academic because the CCG accepted that section 3(1)(b) of the National Health Service Act 2006 could confer power to fund ordinary private residential accommodation in an appropriate case. The issue was whether the power had become an obligation on the facts.
2. The Framework Guidance did not create a presumption that accommodation assisting a person’s healthcare must be funded by the NHS. It contemplated co-operation between NHS bodies and local authorities and assessment of whether accommodation could be supplied through social housing, a housing association, or housing benefit. The approach was consistent with the general framework associated with R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213.
3. In the context of section 3(1)(b), the CCG was entitled to consider the pressure on NHS resources and the statutory welfare arrangements established by Parliament. Absent special circumstances, it would usually be difficult to establish unlawfulness or irrationality where accommodation needs could realistically be met through means-tested state provision rather than the NHS budget.
4. There remained a real prospect that Midland Heart or an external housing authority could provide suitable accommodation if the claimant, or a person authorised to act for her, co-operated with the necessary assessments. The court could not assume that her failure to co-operate resulted from full capacity, because there was an objectively supported possibility that she lacked relevant capacity. Conversely, if she had capacity, her voluntary refusal to pursue those alternatives could lawfully support the CCG’s conclusion that NHS-funded accommodation was neither a reasonable requirement nor necessary.
5. If she lacked capacity, it was lawful for the CCG to seek determination of that issue in the Court of Protection. The judicial review court could not require NHS funding while those alternative arrangements and the capacity issue remained unresolved.
6. The argument based on regulation 9 of the Housing Benefit Regulations 2006 was rejected. Providing healthcare, including care by a live-in carer, would not ordinarily convert a person’s private home into a care home. R (Moore) v Care Standards Tribunal [2005] EWCA Civ 627; [2005] 1 WLR 2979 concerned materially different facts and legislation.