CCG defeats Court of Appeal challenge over duty to provide accommodation

A clinical commissioning group (CCG) has recently defended a Court of Appeal challenge that sought to establish that it was obliged to pay for a private flat in which the appellant would receive NHS Continuing Healthcare.

The appellant in Whapples, R (on the application of) v Birmingham Crosscity Clinical Commissioning Group & Ors [2015] EWCA Civ 435 lived in a one-bedroom adapted flat in Birmingham which belonged to the Midland Heart Housing Association. She received housing benefit to meet the rent of the flat.

The proceedings in the Court of Appeal were argued upon the basis that the appellant would benefit from an adapted two-bedroom flat outside the West Midlands.

Her view was that she needed something larger. Her unusual combination of medical conditions included Post Traumatic Stress Disorder flowing from abuse she suffered as a child and young adult, including as a result of her experience in institutions. She was functionally quadriplegic.

The medical evidence suggested that severe symptoms were triggered by any involvement with medical or other staff working for the CCG concerned and would also be triggered by her moving to a care home.

It was for those reasons that the appellant sought private accommodation outside the West Midlands.

Midland Heart offered to find a two-bedroom flat outside the West Midlands but the appellant did not co-operate in that endeavour.

Her QC argued that, when properly understood, section 3 of the National Health Service Act 2006 and the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care 2012 required Birmingham Crosscity CCG to provide or pay for private accommodation into which the appellant could move.

The relief sought was:

• 
A declaration that the respondent CCG had acted unlawfully in making the decision that it would not arrange to provide accommodation to meet the appellant's needs by reason of a failure properly to apply the Secretary of State's Guidance set out in the National Framework for NHS Continuing Healthcare; and
• An order that the respondent do reconsider whether and if so how to provide suitable accommodation for the appellant as part of an NHS Continuing Healthcare package.

The CCG, which had refused to provide or pay the private accommodation requested, contended that the statutory regime and the national framework imposed no such obligation.

Its legal team, Fenella Morris QC and Rose Grogan of 39 Essex Chambers, also argued that the CCG had lawfully concluded that there were other public bodies which could provide housing. A new private flat was not therefore necessary to meet the appellant’s requirements.

The Court of Appeal considered the interaction between the various public law duties to provide accommodation under s. 3 of the 2006 Act and s. 21 of the National Assistance Act 1948.

The court concluded that the National Framework did not dictate the outcome for which the appellant contended.

Lord Justice Burnett added that – for reasons given by Mr Justice Sales in the High Court – there had been no public law failing in the CCG’s decision not to fund alternative accommodation on the basis that it was likely to be available through Midland Heart or a housing authority.

The Court of Appeal judge also noted that the appellant had indicated a willingness to explore alternative options, but her actions after that indication gave “a different impression” and effectively there had been a standoff brought about by her.

“She has declined offers of assistance in seeking alternative accommodation unless the offer includes an acceptance on the part of the CCG to provide it or fund it. In the meantime, and contrary to her own best interests, she has continued to decline any assistance with her care,” he added.

“As the judge observed, in these circumstances the CCG was entitled to conclude either that the appellant has no reasonable requirement for accommodation provided or funded by the NHS, or that it is not necessary to provide it (or both). There is every reason to suppose that, with the appellant's co-operation, suitable alternative accommodation will be found for her.”