Royal Borough of Kensington and Chelsea, R (on the application of) v NHS North West London Integrated Care Board

An integrated care board’s duty under National Health Service Act 2006, section 3, is qualified by what it considers necessary to meet reasonable requirements and, for services under section 3(1)(i), what it considers appropriate as part of the health service. Care delivered by social-care staff may address health needs or have therapeutic benefit without thereby becoming healthcare. The question remains whether the board’s funding decision was irrational in the Wednesbury sense. Specialist accommodation, behavioural support, intensive supervision and the fact that a placement enabled hospital discharge do not necessarily require NHS funding. Equal treatment is not a free-standing principle of administrative law, and adult continuing-healthcare guidance is not obviously material to a decision concerning a child.

The claimant local authority sought judicial review of the defendant integrated care board’s refusal to contribute to the cost of a specialist children’s home placement for BL. The placement had been arranged and funded by the authority under the Children Act 1989 after BL remained in hospital despite being medically fit for discharge.

The challenge alleged irrationality, failure to consider the specialist placement and hospital discharge, inconsistent funding decisions, failure to follow learning-disability guidance and a serious case review, and failure to have regard to the adult continuing-healthcare framework. The central issue was whether the board’s decision not to treat the placement as part of the health service was unlawful.

1. Disposition. The claim for judicial review failed and the application was dismissed. The Interested Party was discharged by consent. Permission was granted to rely on additional grounds and evidence, with responsive evidence from the defendant.
2. Statutory duty. Section 3 of the National Health Service Act 2006 imposes a qualified duty. An integrated care board must arrange services only to the extent it considers necessary to meet reasonable requirements. For section 3(1)(i) services, it must also consider them appropriate as part of the health service.
3. Health and social care boundary. Applying Coughlan, the implementation of a positive behaviour support plan by social-care staff at the placement was incidental or ancillary to specialist accommodation of a kind a social-services authority could be expected to provide. Therapeutic benefit, behavioural management, 2:1 supervision and waking-night staff did not convert essentially social care into healthcare.
4. The fact that a service may prevent illness or provide after-care does not compel NHS funding. The board was entitled to decide that funding the placement was not appropriate as part of the health service. That conclusion was supported by the review and meeting minutes and was not irrational in the Wednesbury sense.
5. The earlier offer of a 5% contribution did not make the later refusal irrational because the later decision followed a fuller review and was based on the information then available. The board had considered the specialist nature of the placement and the fact that it enabled discharge from hospital; ground 3 therefore failed on the facts.
6. Different funding decisions for different individuals did not establish unlawful unequal treatment. Equal treatment is not a distinct free-standing principle of administrative law, and the cases relied upon were not shown to be sufficiently similar.
7. The learning-disability implementation plan and the serious case review did not provide an identified legal basis requiring funding. The claimant had not identified any relevant recommendation, legal duty or sufficient evidential basis for irrationality.
8. There were distinct framework documents for adults and children. The adult continuing-healthcare framework was not an obviously material consideration in deciding a child’s case. Failure to have regard to it was therefore not unlawful.