The Queen (on the application of Paul Keating & Others) v Cardiff Local Health Board [2005] EWCA Civ 847

The appellants (K and others) appealed against a decision that on a proper construction of s3 of the National Health Service Act 1977, the Local Health Board (C) had no power to fund a project providing a service of advice and assistance in relation to access to state benefits for those with mental health problems.  (The National Assembly for Wales and the Department of Health as interested parties also challenged this decision).

K was a client of Riverside Advice Ltd (R Ltd), which operated a service designed to help those who suffered from mental health problems and which provided advice, specialist support and access to benefits.  C had initially agreed to fund the project, but it terminated the funding agreement on the ground that it was ultra vires, since in its opinion it did not constitute a health service provision under the National Health Service Act (1977).

The trial judge stated that R Ltd had to show that its work was within s.3 (1) (e) of the 1977 Act and adopted a narrow view of the section.  By the time of the appeal, the key issue was essentially whether the word “facilities” in s.3 (1) (e) of the Act could be interpreted as including not only the accommodation but also the personnel who actually provided the services. This section covers the provision of facilities for the prevention of illness, the care of persons suffering from illness, and the after-care of persons who have suffered from illness. The trial judge had concluded that the word “facility” in this section denoted something different from services.  Whilst the Board under s.3 (1)(e) had no power to provide a ‘service’ for the prevention of illness, or for care or after-care, there had been a function with regard to providing a ‘facility’ for those purposes. He found that R Ltd’s activities had not been within the scope of this section, in the sense of constituting a facility, and that C had no power to provide funding for the actual work.

The Court of Appeal disagreed and felt that the judge had adopted too restrictive an approach to the meaning of the word “facilities” in s.3 (1) (e). It thought that the meaning of the word could be found in the context in which it was used.  In this case it took its ordinary meaning, in other words “that which facilitates”. The court felt that there was a degree of overlap between the sub-sections of s 3 (1) of the 1977 Act, and that if a local Health Board wished to provide “facilities” for s.3 (1) purposes as part of a health service, it would be absurd if it was limited to providing the accommodation and the “plant” but somebody else had to provide the personnel to run the facility.

What C was lawfully empowered to provide under s.3 (1) (e), if it considered it appropriate as part of the health service, was to be found in the language of the Act, and it was lawful within the terms of the Act for the Board to provide funding for services like the Riverside project if the board considered it appropriate as part of the health service.  Appeal allowed.

Comment

If the decision of the court of first instance had been upheld it would have had profound implications for the provision of non-medical services under the aegis of the Health Service. But the Court of Appeal’s decision shows that there is hardly any limit to the innovation or breadth that Commissioning Only PCTs could bring to the notion of NHS services.

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