Text:ICLR R (Whapples) v Birmingham CCG [2014] EWHC 2647 (Admin), [2014] MHLO 57

LOCAL GOVERNMENT — Community care services — Provision of accommodation — Reasonable requirements — Whether defendant under obligation to provide claimant with accommodation free of charge as part of health care package — Whether defendant acting unlawfully in approach adopted to claimant’s accommodation needs — National Health Service Act 2006, s 3

Regina (Whapples) v Birmingham Crosscity Clinical Commissioning Group (Secretary of State for Health intervening)

[2014] EWHC 2647 (Admin)^M; [2014] WLR (D) 347

QBD: Sales J: 30 July 2014

When considering the provision of accommodation under section 3(1) of the National Health Service Act 2006 it would usually be difficult to say, absent special circumstances, that a clinical commissioning group had acted lawfully or irrationally in deciding that the accommodation needs of an individual could and should be met through other avenues involving means-tested state provision, and not out of its own NHS budget. Sales J so stated in the Administrative Court of the Queen’s Bench Division on 30 July 2014 when dismissing a claim for judicial review by the claimant, Ruth Whapples, in which she sought a ruling to the effect that the defendant, Birmingham Crosscity Clinical Commissioning Group, had an obligation under section 3 of the 2006 Act to provide her with accommodation free of charge as part of the health care package she was entitled to receive from the National Health Service. The claimant, who had severe physical symptoms stemming from post traumatic stress disorder claimed (1) that the defendant had wrongly asserted that it had no power to provide accommodation under section 3, and (2) that it had acted in breach of its duty under section 3 to provide accommodation for her. The Secretary of State for Health was granted permission to intervene in the proceedings.

SALES J said that the first ground was academic because both the defendant and the Secretary of State accepted that in an appropriate case the defendant would have power to provide accommodation under section 3(1)(b). The claimant’s case under the second ground was that the defendant had an obligation to pay for suitable accommodation for her outside the West Midlands area. The budgets of NHS bodies such as the defendant to provide health care were under considerable pressure. If there were other ways in which the needs of an individual could be met, such as their need for accommodation, which did not divert resources from the NHS’s core mission to provide a universal health care service, it was legitimate to expect that there should be careful exploration of those means before recourse was made to NHS funds to meet those other needs. That was particularly so where the main mechanisms for meeting such other needs which had been in place for decades as part of the welfare state were means tested benefits (such as the provision of social housing by local authorities or housing benefit) that involved a sharing of the burden of the cost of provision between the state and the individual who received assistance (if they had any income or assets). That had been determined by Parliament to be the basic, fair way of meeting those sorts of needs. Accordingly, if the accommodation needs of an individual could be met by assistance in that way, without diversion of resources from the NHS, that was both fair to them and fair to others who looked to the NHS to meet their health care needs. That was the basic contextual background to scrutiny of a decision of a clinical commissioning group under section 3(1)(b) as to whether an individual had reasonable requirements which it was necessary for it to meet by means of provision of accommodation. Absent special circumstances, it would usually be difficult to say that a body like the defendant had acted unlawfully or irrationally in deciding that accommodation needs of an individual could and ought to be met through other avenues involving means-tested state provision, and not out of its own NHS budget. Proceedings brought by the defendant in the Court of Protection offered a real prospect that, if it determined that the claimant lacked relevant capacity, that court could take steps on her behalf to carry forward the exploration of the possibilities for provision of accommodation outside the West Midlands. Since that could now be done, it was too early to say that the defendant was bound in law under section 3(1) of the 2006 Act to find that the claimant had a reasonable requirement of accommodation which needed to be met out of NHS resources. In the very unusual, sensitive and difficult circumstances of the case, the defendant had acted with reasonable promptness to refer the claimant’s case to the Court of Protection.

Appearances: David Lock QC and Nageena Khalique (instructed by Wansbroughs) for the claimant; Fenella Morris QC and Rose Grogan (instructed by Capsticks) for the defendant; Sarah Love (instructed by Treasury Solicitor) for the intervener.

Reported by: Celia Fox, Barrister.