Between health and social care

A clinical commissioning group last month lost a judicial review challenge brought over its decision to withdraw £600,000 in funding for a respite centre for disabled children. Andrew Sharland QC explains why.

In R (Juttla) v Herts Valleys CCG [2018] EWHC 267 (Admin) Mostyn J has considered when respite care will be considered to be a health service, rather than social care. He concluded that a nurse-led respite unit for children with complex health needs was a health service. He rejected arguments that this should be recognised as social care on the basis that the purpose of the care was to provide respite for the parents, and that much of the care provided could, in theory, be delivered by trained social care staff.

Facts of the case

Nascot Lawn was a respite unit for children with complex health needs, situated in Hertfordshire. It was, until recently, commissioned jointly by the two local CCGs.

Last year the CCG responsible for providing the bulk of the funding decided to withdraw that funding. Its first decision to do so was challenged in a previous JR. The principal ground of that challenge was that the CCG had misdirected itself. The CCG had decided that since the service was not a health service, it had neither a duty, nor a power, to continue funding it. On this basis, it had not taken the procedural steps required to take a lawful decision to withdraw funding. The CCG conceded this claim in September 2017, shortly before the hearing.

The CCG then directed itself that, even though Nascot Lawn provided a social care service, the CCG had a power, though not a duty, to fund it. It conducted an “engagement process” before retaking its decision. It again decided to withdraw funding.

The Claimants challenged the fresh decision. They attacked the CCG’s process, and once again argued that this was a health service.

Respite care as healthcare

The Defendant CCG argued that, although the service had been provided by healthcare staff, the nature and purpose of the service was to provide social care. Its primary purpose was to provide the parents with respite. It also argued that the care provided could equally be delivered by trained social workers.

Mostyn J at paragraphs 10 and 11 rejected these arguments, and agreed with the Claimants that this was a health service. He said that this was the result of looking “literally” at the services provided at Nascot Lawn. He also relied on the decision of Ouseley J in R (T) and LB Haringey [2005] EWHC 2235 (Admin), which found:

“It is spoken of as respite care for the mother. From one viewpoint, the purpose of its provision is so that the mother can have a few nights of unbroken sleep per week or some time by herself a week or to look after T. That could be seen as social care for the mother. But its nature and purpose is to provide medical care for D; the intention behind the provision of that medical care is her safety while her mother enjoys respite.”

Since the CCG had decided to decommission a health service, it followed that the CCG had been under a duty to consult with the local authority under Regulation 23 of the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013. Mostyn J rejected the Claimants’ wide-ranging complaints about the quality of the engagement and decision-making process undertaken by the CCG. However he accepted that the CCG had not complied with the duty under Regulation 23. On this basis the CCG’s decision was quashed.

It is a shame that Mostyn J did not set out more fully or clearly his own reasons for determining that Nascot Lawn was a health service. It seems that both the nature and purpose of the service are relevant, but the significance and interplay of these factors has not been explored in any detail. Mostyn J said that it was not determinative that the care has been provided by nurses, but it follows that this factor may still be relevant. Every day providers, commissioners and users of health and social care services struggle to navigate the grey area between health and social care. This was an opportunity to provide much needed clarity, improving on Ouseley’s comments more than ten years ago. Instead, Mostyn J recorded his own instinctive response to the facts.

Andrew Sharland QC is a barrister at 11KBW. This article first appeared on the set's Community Care blog.

Clive Sheldon QC and Hannah Slarks appeared for Hertfordshire County Council, supporting the Claimants’ arguments.