R (on the application of Ruth Whapples) v Birmingham Crosscity Clinical Commissioning Group v The Secretary of State for Health [2014] EWHC 2647 (Admin)

RW had severe medical problems, including being paralysed from the neck down.  No definite diagnosis for her condition had ever been made but it was common ground that her condition was due to post traumatic stress disorder (“PTSD”), caused by abuse that occurred to her in institutions during childhood.  RW was also registered blind.


RW sought a declaration from the court that Birmingham Crosscity Clinical Commissioning Group (“the CCG”) had an obligation to provide her with accommodation as part of her healthcare package.  The CCG denied that it was subject to such an obligation because there were other routes by which RW’s accommodation needs could be met, such as social housing.


RW was living in a self contained, one bedroom flat, provided by Midland Heart Housing Association, where she had been living for the past 20 years.  However, the medical evidence indicated that RW now had particular accommodation needs related to her medical condition which were not being met by her existing flat.  She required more space to allow for the use of a wheelchair and an additional bedroom to accommodate a carer.


The court was asked to determine whether RW had a right to provision of accommodation as part of the free, non-means tested care which she received from the NHS or whether her accommodation should be provided by one of the alternative routes, in the form of means tested benefit.  RW was unable to work and had no significant assets and had a strong claim to be in receipt of appropriate means tested social assistance.


Section 3(1) of the NHS Act states that a clinical commissioning group must arrange for the provision of “other accommodation for the purpose of any service provided under this Act”.  All parties agreed that the words “other accommodation” were capable of covering ordinary private residential accommodation, as distinct from accommodation in a hospital or a care home.  Therefore, it was accepted that in appropriate circumstances a CCG does have the legal power to pay for such accommodation under that provision.


The Secretary of State issued guidance entitled “National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care” which sets out the approach to be adopted when deciding whether an NHS body should provide and pay for accommodation as part of the services they provide under section 21 of the National Assistance Act 1948.  The court found that there was no presumption within this document (when read as a whole) that if someone had healthcare needs and provision of accommodation would assist in meeting those needs, the provision of that accommodation is the responsibility of the NHS body.  The responsibility for meeting the accommodation needs will require an assessment of what may be available to them in terms of provision of suitable social housing by a local authority or their own ability to rent their own home supported by welfare benefits.  The guidance makes it clear that NHS bodies and local authorities are supposed to co-operate in trying to identify the health and welfare needs of an individual and in trying to work out how they should meet those needs.


Mr Justice Sales found that the CCG had appropriately followed the Framework Guidance and had carefully explored the various ways in which an individual’s needs with respect to accommodation could be met.  He found that the NHS is subject to considerable and increasing pressure to provide health care to the general population and that the budgets of NHS bodies to deliver healthcare are under considerable pressure.  If there are other ways in which the needs of an individual can be met which do not divert resources from the NHS’s core mission to provide a universal health care service, it was legitimate to expect that there should at least be careful exploration of those means before recourse was made to NHS funds to meet those needs.


RW had been registered for housing purposes with a number of local authorities in the Midlands and South West.  Midland Heart Housing Association had also offered the claimant various forms of assistance and had requested information from her to assist it in assessing her housing requirements.  RW did not reply to their requests and refused to supply details of her GP, which had resulted in Midland Heart closing their case.


There was also a serious question as to whether RW had mental capacity to make decisions in relation to her accommodation needs.  The CCG had also issued an application in the Court of Protection to seek a determination as to whether RW had the capacity to make decisions.


Mr Justice Sales found that (if RW was willing and able to co-operate with them so that they could assess her needs against the housing stock which they had available) Midland Heart Housing Association had housing stock that was suitable for RW’s needs and other housing authorities may also offer RW suitable accommodation.  It was for these reasons that the claim for judicial review was dismissed.

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