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

A clinical commissioning group must consider the National Framework for NHS Continuing Healthcare when exercising its statutory functions, but the Framework is not a direction and is construed in its statutory context.

Read as a whole, the Framework does not generally require the NHS to pay the rent or other ordinary costs of a patient’s private home merely because a move would enable continuing healthcare to be delivered more effectively. A patient receiving care at home is ordinarily expected to meet such costs privately or through benefits. The group may lawfully conclude that NHS-funded accommodation is neither a reasonable requirement nor necessary where suitable alternative accommodation is likely to be available and the patient declines to co-operate in seeking it.

The appellant was eligible for NHS continuing healthcare. She sought a larger private flat outside the West Midlands, contending that her post-traumatic stress disorder and physical disability meant that care could not safely be delivered in her existing one-bedroom flat.

The clinical commissioning group accepted, for the purposes of the proceedings, that it had power to provide private accommodation. It refused to fund it, while offering care at the existing flat and assistance in finding alternative housing. Sales J dismissed the judicial review claim on 30 July 2014.

The appeal concerned whether National Health Service Act 2006 section 3 and the National Framework obliged the group to provide or fund the requested accommodation, and whether its refusal was unlawful.

Decision

1. The appeal was dismissed. The National Framework did not require the clinical commissioning group to provide or fund a private flat for a patient who received NHS continuing healthcare at home.

2. Under section 3(1) of the National Health Service Act 2006, the statutory duty is qualified by what the group considers necessary to meet reasonable requirements. Following Coughlan v North and East Devon Health Authority [2001] QB 213, the group has an evaluative judgment and may have regard to its resources and competing demands.

3. The National Framework had no express statutory force as a direction, but the group had to take it into account. It could be challenged on ordinary public-law grounds if it failed to do so or misconstrued or misapplied it.

4. Paragraph 33 of the Framework had to be read with its Practice Guidance. That guidance expressly distinguished health and personal-care costs from ordinary household costs, including rent. Its reference to accommodation as part of an overall need was directed to cases requiring accommodation in a specialist setting because care could not appropriately be delivered at home. It did not make the NHS responsible for the cost of moving between private homes to make a home-care package more effective.

5. The possible availability of local-authority accommodation was not precluded by section 21(8) of the National Assistance Act 1948. That exclusion applied only to services in fact authorised or required to be provided by the NHS. The group was entitled to decide that private accommodation was not an NHS need which it was necessary to meet.

6. A private home in which care is delivered does not thereby become a care home. It is not ordinarily an “establishment” under the Care Standards Act 2000, so the housing-benefit argument based on residential accommodation failed.

7. On the facts, the group could lawfully conclude that NHS-funded accommodation was not a reasonable requirement, or was not necessary, because alternative accommodation was likely to be available if the appellant co-operated. The Court did not decide whether section 3(1)(b) in fact empowered the provision of a private flat; it proceeded on the parties’ concession while reserving that question.

• Court of Appeal (Civil Division) — The appeal from Sales J was dismissed.
• Court of Protection — After the High Court decision, it declared on 5 March 2015 that the appellant had capacity to make the relevant decisions about assessment, treatment, care and accommodation.
• High Court (Administrative Court) — Sales J dismissed the judicial review claim on 30 July 2014. No citation for that judgment is stated.
• Court of Appeal (Civil Division) — Permission to bring the judicial review appeal was granted in the proceedings: [2013] EWCA Civ 258.