Wolverhampton Council, R (On the Application Of) v South Worcestershire Clinical Commissioning Group Shropshire (CCG)

A clinical commissioning group’s responsibility for continuing healthcare depends on the statutory scheme governing responsibility for the patient. Under paragraph 3 of Schedule 1 to the 2012 Regulations, an arrangement must be concluded before it can transfer responsibility for specified services. Beginning an assessment, recommending eligibility, or intending to make arrangements is insufficient.

A general power to facilitate statutory functions cannot be used to fund services for a person outside the group’s statutory responsibility. Nor can an authority’s mistaken assumption of responsibility create powers which the legislation does not confer. Payments to a local authority under section 256 are unavailable where the body was not purporting to exercise that ancillary power.

Wolverhampton Council sought to recover the cost of care provided to VG, a person with profound learning difficulties and other disabilities. VG moved from a school in Shropshire to residential accommodation in Worcestershire and changed GP practice during the period in which his eligibility for NHS Continuing Healthcare was being assessed.

The Council argued that South Worcestershire CCG, or alternatively Shropshire CCG, was responsible for the care costs. Shropshire CCG argued that it lacked statutory power to fund care outside the statutory responsibility provisions. By agreement, the court determined the vires issue as a preliminary issue. The central question was whether Shropshire CCG had acquired responsibility under section 3 of the NHS Act 2006 and paragraph 3 of Schedule 1 to the 2012 Regulations.

1. The preliminary issue was decided for Shropshire CCG. The court held that it had no power to pay Wolverhampton Council for VG’s care at AALPS.
2. Paragraph 3(a) of Schedule 1 to the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standard Rules) Regulations 2012/2996 does not require proof of a contract. The relevant question is whether, on the facts, the CCG effected an arrangement.
3. That arrangement must, however, have a degree of finality. The reference to an arrangement by virtue of which the person is to be provided with services contemplates a concluded arrangement making provision for services to be provided in the future. An incomplete eligibility assessment and an intention or recommendation to arrange continuing healthcare are insufficient.
4. By the time VG changed GP practices and moved to accommodation outside Shropshire CCG’s area, the Decision Support Tool process was incomplete. No final decision had been made that VG was eligible for NHS Continuing Healthcare, and no consequential care arrangements had been made. VG therefore did not fall within paragraph 3 of Schedule 1 or the additional responsibility identified by regulation 4(1).
5. VG was also not a person for whom Shropshire CCG was required to arrange services under section 3 of the NHS Act 2006, because he was no longer receiving GP services from a member of that CCG when arrangements were made for his care at AALPS.
6. Section 2 of the NHS Act 2006 supplies only a general ancillary power. It cannot authorise provision of services to persons outside section 3, except to the extent permitted by the Regulations. Section 256 did not apply because Shropshire CCG was not purporting to exercise the ancillary payment power in that provision.
7. The CCG’s conduct and its prolonged mistaken acceptance of liability could not confer powers which the Act did not grant. The claim was accordingly dismissed in substance on the vires issue, with the further proceedings to be managed in light of that ruling.