Judge calls for LGA and NHS urgently to devise mechanism for resolving disputes

A High Court judge has urged the Local Government Association and the National Health Service to devise a mechanism by which funding disputes between councils and health bodies can be resolved without resort to expensive legal proceedings.

The case of Wolverhampton Council, R (On the Application Of) v South Worcestershire Clinical Commissioning Group Shropshire (CCG) [2018] EWHC 1136 arose when Wolverhampton Council took South Worcestershire and Shropshire clinical commissioning groups (CCG) to the High Court over which of them should pay for the care of patient VG.

Before setting out his judgment, Mr Justice Garnham said: “It is most regrettable that this dispute was not resolved without the parties having to come to court.

“The Court of Appeal and this court have repeatedly indicated how much they deprecate this sort of litigation, where substantial amounts of public money are spent by public bodies arguing about which of them is responsible for the performance of a particular public duty.”

He said £75,000 had been spent on legal fees and costs, which “would be much better spent on providing the services which these bodies were established to provide, than on expensive teams of lawyers”.

The judge said he was nonetheless grateful for the assistance of the lawyers involved in the case. However, he added: “It is inevitable that on occasions those advising local authorities and CCGs will take different views on the complicated legal structures governing their operation but the NHS and the Local Government Association ought urgently to work together to devise a mechanism by which such disputes can be resolved without resort to expensive legal proceedings.”

VG, who has profound learning difficulties and other disabilities, originally lived in Wolverhampton but later attended a school in Shropshire where he registered with a general practitioner.

The dispute turned on whether his care should be paid for by Wolverhampton, by Shropshire CCG given his registration there, or by South Worcestershire CCG once he moved to a residential home called AALPS in Worcester.

South Worcestershire argued that it had no significant involvement in obtaining VG's care and said Shropshire CCG “repeatedly acknowledged that the responsibility was theirs”.

Shropshire CCG though said it could not be responsible because it did not have powers to fund VG's care.

The judge said the issue of vires was critical to future management of the case and reluctantly concluded that Shropshire CCG “has, and had, no power to make the payment to the claimant in respect of VG's care at AALPS”.

The judge added: “I have come to that conclusion with some considerable regret. In my judgment, the moral ‘merits' of the case lay with the claimant council who have endeavoured throughout to do the right thing by VG, and with [South Worcestershire] who has had little or no involvement in the making of the arrangements now being considered.

“Wherever my sympathies may lie, however, I am driven to the conclusion that, as a matter of law, the second defendants had no power to fund AALPS and therefore cannot be acting unlawfully in declining so to do.”

Mark Smulian