R (on the application of Whapples) –v- Birmingham Crosscity Clinical Commissioning Group [2015] EWCA Civ 435

An unsuccessful appeal in a judicial review has underlined the reasonableness of exploring alternative means of providing accommodation before resorting to the use of NHS funds.

Background

In July 2014 the appellant came before the High Court in a case for judicial review regarding her NHS continuing healthcare needs. The appellant had sought a ruling that the defendant CCG was obliged under section 3 of the NHS Act 2006 (NHSA) to provide her with accommodation free of charge as part of her healthcare package. The claim was unsuccessful.

The first instance decision was underpinned by the judge’s interpretation of the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. He concluded that the claimant’s healthcare needs could be met without recourse to NHS funds in a way that was both fair to the claimant and to others. Through avenues of means-tested benefits, either Midland Heart Housing Association (Midland Heart) or the relevant local authority, her accommodation needs could be met, and therefore referral to the CCG’s funds was not necessary. Therefore, the actions of the CCG were not in conflict with the National Framework and were not unlawful.

The claimant sought to appeal this ruling before the Court of Appeal.

Decision

The Court of Appeal upheld the previous decision and dismissed the appeal.

Lord Justice Burnett based his ruling on the acceptance by both the CCG and the Secretary of State for Health (as ‘Interested Party’) that the CCG has a power under section 3(1)(b) NHSA to provide private accommodation to a patient in the appellant’s position. However, the judges appeared to express some reservations about that, and indicated that the interpretation of that section will need to be considered in finer detail in a future case.  

Of consideration was the issue of the mental capacity of the appellant. Since the last hearing, it had been determined in the Court of Protection that the appellant had the capacity to make decisions about her accommodation needs. The appellant had declined assistance in seeking alternative accommodation from Midland Heart and her local authority, led by her willingness to accept only financial help from the CCG. She had also continued to decline any assistance with her care. The court indicated that, if acting reasonably, the appellant would have cooperated with Midland Heart or the local authority to find accommodation without having to resort to the resources of the NHS. The court held that CCG was entitled to conclude that the appellant had either no reasonable requirement for accommodation provided or funded by the NHS, or that it was not necessary to fund it, or both.

Based on interpretation of the National Framework and construction of section 3 NHSA, the CCG was considered to have acted lawfully in decisions made regarding the appellant’s accommodation in the provision of her continuing care.

Comments

This is an important decision by the Court of Appeal which has upheld the previous decision that where an individual’s needs can be met through alternative means, it is legitimate to expect these to be explored before resorting to the use of NHS funds. CCGs are entitled to weigh individuals’ needs with the wider consideration of the financial implications for the NHS. The Court of Appeal’s approval of the first instance decision will provide further reassurance to CCGs at a time of considerable budgetary pressure. However, it will be interesting to see whether the decision is taken to appeal in the Supreme Court.