Practical and Legal Guidance for Assessing Capacity
Jul 20 2023
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R (Whapples) v Birmingham Crosscity Clinical Commissioning  EWHC 2647 (Admin) is an important judgment on the scope of the duties and responsibilities that fall to CCGs in relation to commissioning/funding accommodation as part of NHS Continuing Healthcare (CHC). It also affects local authorities in so far as it addresses the extent of continuing obligations of local authorities under housing and welfare provisions even when the service user is eligible for CHC.
The Administrative Court has handed down an important judgment on the scope of the duties and responsibilities that fall to CCGs in relation to commissioning/funding accommodation as part of NHS Continuing Healthcare (CHC). It also affects local authorities in so far as it addresses the extent of continuing obligations of local authorities under housing and welfare provisions even when the service user is eligible for CHC.
The starting position is that alternative options for commissioning, funding and providing accommodation - through the social care framework under the responsibility of the local authority - should be explored, before resorting to a duty on the CCG under CHC. Where alternative sources are available, it is not unreasonable nor irrational nor improper for the CCG to refuse to commission accommodation under CHC.
CCGs will need to work closely with local authorities to explore alternative sources of accommodation. In the circumstances where social care accommodation is neither available to the person, or insufficient to meet the person's needs which arise out of their primary health need, the CCG may need to either "top up" social care accommodation provision or make alternative arrangements for accommodation.
In R (Whapples) v Birmingham Crosscity Clinical Commissioning  EWHC 2647 (Admin), Ruth Whapples suffered from tetraplegia and flaccid quadriplegia caused by severe symptoms of Post Traumatic Stress Disorder. She wa registered blind, required oxygen and was catheterised. She was eligible for CHC.
It was agreed that Ruth's present accommodation (1-bedroom flat under a tenancy with a registered social landlord) did not meet her needs; she required more space to allow for use of a wheelchair and an additional bedroom to accommodate a carer. In those respects, the accommodation needs related to her primary health need: her medical condition.
She brought a claim in judicial review against the CCG for its refusal to commission accommodation as part of her package of care under CHC. The CCG argued that Ruth's accommodation needs could be met either through social housing funded by housing benefit or under the local authority's general obligations for meeting Ruth's social welfare needs. The CCG had offered to make up any shortfall in housing benefit/social care accommodation funding resulting out of the need for extra room to accommodate a carer.
The crux of the issue was that CHC is non-means tested whereas provision of accommodation under any of the welfare benefit streams would be means tested.
There are three key pieces of legislation central to this matter:
The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (2012) (the National Framework) provides the statutory guidance supporting the provision of CHC.
In making his determinations, the judge carefully reviewed the relevant paragraphs (particularly 33 – 34) of the National Framework (and the associated practice guidance) relating to accommodation and the interface between NHS and local authority obligations and responsibilities. He concluded that:
Ultimately, he noted that the general position is that accommodation needs of an individual should be met either privately – possibly through a housing association but funded by housing benefit, by the provisions of the ordinary local authority housing duties, where possible, although the scope for the use of s.21 welfare duties were also raised. There is a wider problem not addressed in the case from the provisions of s.21(8) of the National Assistance Act. The interface between s.21 and the housing provisions was also not addressed.
Arguably, as the judge found that even where suitable accommodation is linked to the healthcare need, there is no automatic presumption that responsibility to provide accommodation lies with the NHS – therefore, where there is no direct link between the primary health need and the person's need for accommodation per se, the arguments that provision of accommodation does not fall to the NHS are even stronger. This is in line with the position in relation to s.117 aftercare under the Mental Health Act 1983, where recent case law has recognised that every human has a basic or "common" need for accommodation and that therefore, unless the need for accommodation is specifically linked to the mental disorder – i.e. the person requires "accommodation-plus" – provision of accommodation would not fall to the NHS providing care under s.117.
CCGs should not assume that simply because a person is eligible for CHC, it is responsible for commissioning for all of the person's health and social care needs per se. CCGs should carefully consider all packages of CHC to determine whether the person's accommodation needs could be met through the housing or welfare Duties (either in total or, at least in the case of housing benefit cases with a top-up from the CCG).
There may be some scope to extend the argument beyond accommodation, into areas of adaptation, and possibly equipment where the needs do not arise directly from the primary health need driving the CHC eligibility decision, but CCGs should continue to have regard tot eh guidance from the Department of Health.
Local authorities should establish good working relationships between the housing and social care departments with local policies/protocols in place to ensure timely and smooth allocation for local authority welfare accommodation.
CCGs should note that in Ruth's case, at the time of this judgment, it was not clear whether in reality, there was social care accommodation available to Ruth that could meet her needs. It is possible that if it transpires that there is no practical availability of suitable social care accommodation, or if the social care accommodation provision falls short of meeting Ruth's needs, there would be a duty on the CCG, in those circumstances, to either provide for the accommodation in its entirety or to make up any shortfall in the welfare provision.
The case refers to some social welfare provisions under the National Assistance Act; these will be replaced by the Care Act 2014. Although in substance the welfare provisions remain, the s.21(8) argument is affected by the different wording set out in s.22.
We understand that an appeal may be launched