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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Whapples, R (on the application of) v Birmingham Crosscity Clinical Commissioning & Anor [2014] EWHC 2647 (Admin) (30 July 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/2647.html Cite as: [2014] EWHC 2647 (Admin), [2014] PTSR 1413, [2014] WLR(D) 347

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/07/2014

Mr Justice Sales:

Introduction

1. This is an application for judicial review brought in very sad and difficult circumstances. The Claimant has extremely severe physical symptoms stemming, so the balance of the available medical evidence indicates, from post traumatic stress disorder ("PTSD") arising from traumatic events in her past, including abuse during childhood. She is seeking a ruling from this court to the effect that the Defendant ("the CCG") has an obligation under section 3 of the National Health Service Act 2006 ("the NHS Act") to provide her with accommodation, as part of the health care package with which it should provide her free of charge under the NHS.
2. The CCG denies that it is subject to such an obligation. It says that there are other routes by which the Claimant's accommodation needs can be met, either by provision of suitable housing by a housing association (with rent paid for by housing benefit) or by provision of social housing by a local authority with responsibility for meeting her social welfare needs.
3. The legal issue of principle which the court is invited to determine on the present application is whether the Claimant has a right to provision of accommodation suitable to meet her needs as part of the free, non-means tested care which she receives from the NHS or whether her accommodation should be provided by one or other of these alternative routes, in the form of means tested welfare benefits.
4. The Claimant has no significant assets and her medical condition is such that she cannot work, so she has a strong claim to be in receipt of appropriate means tested social assistance. However, she feels that she would have greater assurance about the accommodation options available to her if she can establish that the CCG has an obligation under section 3 of the NHS Act to provide her with accommodation.
5. This legal issue is of wider significance for the NHS. An obligation on NHS bodies to provide free of charge, non-means tested accommodation could, if it is extensive, represent a considerable drain on their resources. For that reason, the Secretary of State for Health has been granted permission to intervene in these proceedings.

Section 3 of the NHS Act

6. Section 3(1) of the NHS Act, as amended, provides:

"A clinical commissioning group must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility –

(a) hospital accommodation,

(b) other accommodation for the purpose of any service provided under this Act,

(c) medical, dental, ophthalmic, nursing and ambulance services,

(d) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as the group considers are appropriate as part of the health service,

(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as the group considers are appropriate as part of the health service,

(f) such other services or facilities as are required for the diagnosis and treatment of illness.

7. It is common ground between the Claimant and the CCG, and the Secretary of State agrees, that, as a matter of general principle, the words "other accommodation" in section 3(1)(b) are capable of covering ordinary private residential accommodation (as distinct from accommodation in a hospital or a care home). Therefore, in appropriate circumstances, a CCG does have a power to pay for such accommodation under that provision. However, the CCG and the Secretary of State dispute the Claimant's claim that in present circumstances the CCG is obliged to pay for a suitable flat for her.
8. The Secretary of State has issued guidance entitled, "National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care" (revised version, November 2012) ("the Framework Guidance"). This includes general guidance as to the approach to be adopted to deciding when an NHS body should provide and pay for accommodation, as part of a package of NHS healthcare, and when it is appropriate for local authorities to provide accommodation as part of the welfare services they provide under section 21 of the National Assistance Act 1948. The Framework Guidance says this at paragraphs 33-35:

"Primary Health Need

33. To assist in deciding which treatment and other health services it is appropriate for the NHS to provide under the 2006 Act, and to distinguish between those and the services that LAs [local authorities] may provide under section 21 of the National Assistance Act 1948, the Secretary of State has developed the concept of a 'primary health need'. Where a person has been assessed to have a 'primary health need', they are eligible for NHS continuing healthcare. Deciding whether this is the case involves looking at the totality of the relevant needs. Where an individual has a primary health need and is therefore eligible for NHS continuing healthcare, the NHS is responsible for providing all of that individual's assessed health and social care needs – including accommodation, if that is part of the overall need.

34. There should be no gap in the provision of care. People should not find themselves in a situation where neither the NHS nor the relevant LA (subject to the person meeting the relevant means test and having needs that fall within their eligibility criteria for adult social care ^[…]) will fund care, either separately or together. Therefore, the 'primary health need' test should be applied, so that a decision of ineligibility for NHS continuing healthcare is only possible where, taken as a whole, the nursing or other health services required by the individual:

a) are no more than incidental or ancillary to the provision of accommodation which LA social services are, or would be but for a person's means, under a duty to provide; and

b) are not of a nature beyond which an LA whose primary responsibility it is to provide social services could be expected to provide.

35. There are certain limitations to this test, which was originally indicated in Coughlan [R v North and East Devon Health Authority, ex p. Coughlan [2001] QB 213]: neither the CCG, nor the LA can dictate what the other agency should provide. Instead, a practical approach to eligibility is required – one that will apply to a range of different circumstances, including situations in which the 'incidental or ancillary' test is not applicable because, for example, the person is to be cared for in their own home. Certain characteristics of need – and their impact on the care required to manage them – may help determine whether the 'quality' or 'quantity' of care required is more than the limits of an LA's responsibilities, as outlined in Coughlan:

Nature: This describes the particular characteristics of an individual's needs (which can include physical, mental health or psychological needs) and the type of those needs. This also describes the overall effect of those needs on the individual, including the type ('quality') of interventions required to manage them.

Intensity: This relates both to the extent ('quantity') and severity ('degree') of the needs and to the support required to meet them, including the need for sustained/ongoing care ('continuity').

Complexity: this is concerned with how the needs present and interact to increase the skill required to monitor the symptoms, treat the condition(s) and/or manage the care. This may arise with a single condition, or it could include the presence of multiple conditions or the interaction between two or more conditions. It may also include situations where an individual's response to their own condition has an impact on their overall needs, such as where a physical health need results in the individual developing a mental health need.

Unpredictability: This describes the degree to which needs fluctuate and thereby create challenges in managing them. It also relates to the level of risk to the person's health if adequate and timely care is not provided. Someone with an unpredictable healthcare need is likely to have either a fluctuating, unstable or rapidly deteriorating condition. …"

9. The guidance here is very general. Mr Lock QC for the Claimant sought to suggest that paragraph 33 indicates that the CCG is obliged in the present case to pay for the Claimant's accommodation. I do not agree. That paragraph has to be read in the context of the whole Framework Guidance. It is clear from the document as a whole that there is no presumption that if someone has healthcare needs and if provision of suitable accommodation would assist in meeting those needs, then the provision of that accommodation is the responsibility of an NHS body. Rather, the responsibility for meeting the accommodation part of the needs of the individual will require assessment of what may be available to them in terms of provision of suitable social housing by a local authority or their own ability to own or rent their own home (supported, as necessary, by welfare benefits such as housing benefit).
10. The Framework Guidance makes it clear that NHS bodies and local authorities are supposed to co-operate in trying to identify the health and welfare needs of an individual and in trying to work out how between them they should meet those needs: see, e.g., paragraphs 166-171. Part 2 of the Framework Guidance sets out Practical Guidance on various matters, including how to approach the division of responsibility between NHS bodies and local authorities regarding meeting various aspects of need which an individual might have. Sections PG1 and PG2 provide as follows:

"PG1 Is there an authoritative definition of 'beyond the responsibility of the local authority'?

1.1 Local authorities have a duty to carry out an assessment of needs where someone appears to be in need of community care services, and a duty to provide services or support to meet assessed eligible needs. However local authorities cannot lawfully commission services that are clearly the responsibility of the NHS (e.g. care provided by registered nurses and services that the NHS has to provide because the individual is eligible for NHS continuing healthcare)."

1.2 Whilst there is no legal lower limit to what the NHS can provide, there is a legal upper limit to nursing and healthcare that can be provided by local authorities. This is a complex area of law and there is no simple authoritative definition of what is beyond the responsibility of the local authority. The powers and duties of local authorities are a matter of Statute and case law, including the Coughlan Judgment.

1.3 However, local authorities can and do commission care in care homes (with or without nursing) where needs to be met include elements of 'general nursing' provided by healthcare assistants or care assistants. A local authority can fund this 'nursing care' provided it is both incidental and ancillary to the individual's accommodation and of a nature that a local authority can be expected to provide.

PG2 What is the difference between a healthcare need and a social care need?

2.1 Whilst there is not a legal definition of a healthcare need (in the context of NHS continuing healthcare), in general terms it can be said that such a need is one related to the treatment, control or prevention of a disease, illness, injury or disability, and the care or aftercare of a person with these needs (whether or not the tasks involved have to be carried out by a health professional.

2.2 In general terms (not a legal definition) it can be said that a social care need is one that is focused on providing assistance with activities of daily living, maintaining independence, social interaction, enabling the individual to play a fuller part in society, protecting them in vulnerable situations, helping them to mange complex relationships and (in some circumstances) accessing a care home or other supported accommodation.

2.3 Social care needs are directly related to the type of welfare services that LAs have a duty or power to provide. These include, but are not limited to: social work services; advice; support; practical assistance in the home; assistance with equipment and home adaptations; visiting and sitting services; provision of meals; facilities for occupational, social, cultural and recreational activities outside the home; assistance to take advantage of educational facilities; and assistance in finding accommodation (e.g. a care home), etc. CCGs should be mindful that where a person is eligible for NHS continuing healthcare the NHS is responsible for meeting their assessed health and social care needs."

11. This part of the Framework Guidance indicates that local authorities may generally be expected to meet the accommodation needs of someone in need of provision of housing by the state.
12. Sections PG85 and PG88 provide guidance about the position if someone lives in their own home, as follows:

"PG 85 What are the responsibilities of CCGs and LAs when a person is supported in their own home?

85.1 Where someone is assessed as eligible for NHS continuing healthcare but chooses to live in their own home in order to enjoy a greater level of independence, the expectation in the Framework is that the CCG would remain financially responsible for all health and personal care services and associated social care services to support assessed health and social care needs and identified outcomes for that person, e.g. equipment provision (see PG 79), routine and incontinence laundry, daily domestic tasks such as food preparation, shopping, washing up, bed-making, support to access community facilities, etc. (including additional support needs for the individual whilst the carer has a break). However, people who choose to live in their own home may have additional community care needs which it may be appropriate for the LA to address subject to their local eligibility threshold and charging policy, e.g. assistance with property adaptation (see PG 79), support with essential parenting activities, support to access other community facilities, carer support services that may include additional general domestic support, or indeed any appropriate service that is specifically required to enable the carer to maintain his/her caring responsibilities (bearing in mind PG 89 below).

85.2 There is a range of circumstances in which CCGs have overlapping powers with other statutory organisations. Where this is the case, CCGs and other statutory bodies should work in partnership locally to determine how each partner's responsibilities will be exercised. CCGs should not simply assume that another organisation will meet the need. Active liaison should take place. The needs appropriate for the CCG to meet will depend upon the circumstances of the individual case, having regard to the overall purpose of the health service – to improve physical or mental health, and to prevent, diagnose or treat illness.

85.3 Where other agencies/organisations have potentially overlapping powers/responsibilities there should be a discussion between the parties involved. If someone is receiving NHS continuing healthcare in their own home their benefits are unaffected (although they will not be able to receive support from the Independent Living Fund). There is a range of everyday household costs that are expected to be covered by personal income or through welfare benefits (i.e. food, rent/mortgage interest, fuel, clothing and other normal household items). In addition, disability-related benefits (e.g. Disability Living Allowance and Attendance Allowance) are intended to cover some disability-related costs. As individual circumstances will differ considerably, it is not possible to give hard and fast rules on how best to divide responsibilities where overlapping powers exist. However, the following questions may help inform the decision-making process:

a) Is this service part of the support plan necessary to meet the individual's assessed health, personal care and associated social care needs?

b) What support is necessary for the CCG to fund/provide in order for the individual to assess essential services?

c) What responsibilities do other organisations/agencies have to enable the person to access essential services?

d) What would happen if a CCG or a partner organisation did not fund/provide the service in question – what would the outcome be? …

PG 88 If someone has NHS Continuing Healthcare at home, does the CCG have to pay for rent/mortgage, food and utility bills?

88.1 No. the NHS is responsible for funding health and personal care costs, not rent, food and normal utility bills. There will be circumstances, however, when a contribution towards a utility bill may be appropriate (because, for example the individual has increased costs to run specialised equipment)."

13. This part of the Framework Guidance indicates that generally, if someone lives in their own home (whether they own it or rent it) and healthcare services are provided to them there, NHS bodies are not expected to meet the housing costs associated with that accommodation.
14. In my view, there is nothing in what the CCG has done in this case which is in conflict with the Framework Guidance. On the contrary, in the stance it has adopted generally and in the course of these proceedings, I consider that the CCG has been seeking to follow the general indication given in the Framework Guidance that there should be a careful exploration of the various ways in which aspects of an individual's needs with respect to accommodation could be met, before the conclusion is drawn that the NHS should itself be funding accommodation.
15. To my mind, that general indication in the Framework Guidance, and the guidance to similar effect in sections PG1, PG2, PG85 and PG88, makes considerable sense in the context of cases where NHS bodies, local authorities and other state agencies may all have overlapping powers in relation to meeting aspects of an individual's needs. The NHS is subject to considerable and increasing pressure to provide health care, in the ordinary and central sense of that term, to the general population. The budgets of NHS bodies such as the CCG to deliver health care of that kind are under considerable pressure. If there are other ways in which other needs of an individual can be met, such as their need for accommodation, which do not divert resources from the NHS's core mission to provide a universal health care service, it is legitimate to expect that there should be careful exploration of those means before recourse is made to NHS funds to meet those other needs.
16. In my view, that is particularly so where the main mechanisms for meeting such other needs which have been in place for decades as part of the welfare state are means tested benefits (such as provision of social housing by local authorities or housing benefit) that involve a sharing of the burden of the cost of provision between the state and the individual who receives assistance (if they have any income or assets). That has been determined by Parliament to be the basic, fair way of meeting those sorts of needs. Accordingly, if the accommodation needs of an individual can be met by assistance in that way, without diversion of resources from the NHS, that is both fair to them and fair to others who look to the NHS to meet their health care needs.
17. This is the basic contextual background to scrutiny of a decision of a clinical commissioning group under section 3(1)(b) as to whether an individual has reasonable requirements which it is necessary for it to meet by means of provision of accommodation. Absent special circumstances, it will usually be difficult to say that a body like the CCG has acted unlawfully or irrationally in deciding that accommodation needs of an individual can and ought to be met through other avenues involving means-tested state provision, and not out of its own NHS budget.
18. In the present case, the Claimant's position is very unusual. The question remains, however, whether the CCG has acted or is acting unlawfully in the approach it has adopted to the Claimant's accommodation needs.
19. Mr Lock submitted that the case of R (Booker) v NHS Oldham [2010] EWHC 2593 (Admin) shows that an NHS body cannot refuse to provide health care services, just because someone has means to pay for private care (in that case, those means were provided by an award of damages for personal injuries to cover the cost of health care). The same must be true, he says, if an NHS body can see that a person needs accommodation to assist in the treatment of health needs. It is irrelevant that the person in the latter case may be able to meet their accommodation needs out of their own resources (e.g. if they own their own home or can afford to rent their own home) or that those needs can be met by provision by others (e.g. by provision of social housing or payment of housing benefit).
20. I do not accept this submission. In my judgment, when one is considering the provision of accommodation, as distinct from core health care services, against the contextual background I have described, there is a very considerable difference from the context addressed by the judgment in Booker. In my view, Booker provides no support for the Claimant's submissions in these proceedings.

The Claim

21. The Grounds of Claim which are pursued before me are Ground 2, that the CCG has wrongly asserted that it has no power to provide accommodation to the Claimant under section 3 of the NHS Act, and Ground 3, that the CCG has acted in breach of its duty under section 3 to provide accommodation for the Claimant. At the hearing before me, it was agreed that Ground 2 is academic, because both the CCG and the Secretary of State accept that in an appropriate case the CCG would have power to provide accommodation under section 3(1)(b). Under Ground 3, the Claimant's case is that the CCG has an obligation to pay for suitable accommodation for the Claimant outside the West Midlands area.

Factual Background

22. The Claimant was born in 1957. She has numerous, severe medical problems. She is a tetraplegic and suffers from a flaccid quadriplegia. She has been paralysed from the neck down since 1979. No definite diagnosis for her condition has ever been made, but for present purposes it is common ground that her condition is due to PTSD from which she suffers. Her PTSD is due to alleged abuse that occurred to her in institutions in which she was cared for in the West Midlands.
23. The Claimant also has severe problems with her eyesight and has been registered blind since 2001. She suffers from difficulties in breathing, for which she has been treated with bronchodilators and oxygen. She suffers from bowel problems and has been catheterised for many years.
24. Unfortunately, the Claimant's PTSD has the effect that she is very distrustful of people in authority and medics, including in particular anyone providing care in the West Midlands and anyone from the Defendant NHS Clinical Commissioning Group, which has taken over functions previously carried out by the Primary Care Trust for the area in Birmingham in which the Claimant lives (for ease of reference, I refer to both the Primary Care Trust and the Clinical Commissioning Group as "the CCG"). Interventions by CCG representatives can have the effect of triggering further deterioration in the Claimant's condition. This makes it very difficult for the CCG to provide her with the care and support which it considers she needs.
25. There is an extensive and complex background to the present application, both in terms of court proceedings and in terms of the Claimant's medical condition and mental capacity.
26. There is currently on foot an application by the CCG in the Court of Protection seeking a determination under the Mental Capacity Act 2005 of certain matters relating to the capacity of the Claimant to take decisions for herself. The Court of Protection has indicated that it would be assisted, in addressing the matters before it, by having the determination of this Court on the issue of law which divides the Claimant and the CCG in these judicial review proceedings.
27. That issue is whether (as the Claimant submits) the CCG has a legal obligation under section 3(1) of the NHS Act to provide accommodation for the Claimant free of charge, as part of the health care which she is entitled to receive from the NHS, or whether (as the CCG submits) the CCG is entitled to expect another body to provide accommodation for the Claimant while it provides health care services for her.
28. There appear to be two possible sources of accommodation for the Claimant, apart from the CCG: Midland Heart Housing Association ("Midland Heart") and a relevant local authority with responsibility in relation to the Claimant to meet her accommodation needs under section 21 of the National Assistance Act 1948. In either case, if accommodation is provided from these sources, it would be dependent on means tested social assistance (whether by way of payment of housing benefit or the provision of social housing), rather than provided free of charge and without means testing, as would be the case if the CCG has an obligation to provide the Claimant with accommodation as part of her NHS health care provision.
29. Midland Heart is currently providing the Claimant with a self-contained, one bedroom flat in the West Midlands, at Harborne in Birmingham, in which she has lived for the past 20 years or so. However, as is common ground, the medical evidence indicates that the Claimant has particular accommodation needs related to her medical condition, which are not being met by her existing flat. She requires more space, to allow for use of a wheelchair, and an additional bedroom, to accommodate a carer.
30. There is also medical evidence indicating that the Claimant would benefit from being located in an area outside the West Midlands catchment area of the CCG, so that she would not have to deal with representatives of the CCG or other West Midlands authorities, to minimise the risk of deterioration in the symptoms associated with her PTSD. It may seem paradoxical that the Claimant should be seeking a ruling that the CCG has an obligation to accommodate her while at the same time saying that she wants no contact with the CCG. However, she says that the CCG has responsibility for her health care and that it should be paying for her to have suitable accommodation in another part of the country.
31. I note that after extended periods in hospitals in 2009-2010 for tests and observation, the Claimant discharged herself and for a few months in 2010 she did try moving away from the West Midlands, to Wiltshire. That did not go well. The NHS authorities there made their own assessment of her medical condition and health needs which was less favourable than the Claimant believed appropriate. The Claimant felt that she did not get the support she required. She therefore moved back to her Midland Heart flat in Birmingham in October 2010.
32. A further complication is that the Claimant is so opposed to receiving care from the CCG that she wishes to have a care manager independent of the CCG (but paid for by it) to supervise the provision of health care to her. The CCG is doing its best to put such an arrangement in place. However, thus far no independent manager has been found whom the Claimant is prepared to accept as suitable.
33. The position which has been arrived at in terms of provision of health care, quite apart from background questions regarding accommodation, is very serious. The most recent medical evidence available at the hearing was a statement of Dr Gavin Ralston, who is an experienced General Practitioner who has been Chair of the CCG since 1 April 2013. By coincidence, Dr Ralston is also the Claimant's GP.
34. Dr Ralston explains that since the Claimant's return to Birmingham, she has had very minimal care from two retired nurses whom she trusts. However, since Christmas 2013 these elderly ladies have stopped visiting the Claimant, so she has gone from receiving absolutely minimal health care to none at all. Dr Ralston had been visiting the Claimant regularly, but she now does not accept that she has a therapeutic relationship with him and will not discuss her physical and mental condition with him or consent to any examination. Dr Ralston was last able to examine her in December 2012. Since his last visit on 28 February 2014, the Claimant has refused to let him visit her.
35. Since the Claimant's return to Birmingham in 2010, she has not left her room and her only regular visitor apart Dr Ralston from has been her friend, Peter Jeffs. Mr Jeffs does his best to care for the Claimant, but he has no medical training. Dr Ralston doubts that Mr Jeffs has the strength to turn the Claimant in her bed.
36. It appears from Dr Ralston's witness statement that great efforts have been made by him and the CCG to try to care for the Claimant, but this has been difficult to do in the circumstances. Dr Ralston is now very worried about the Claimant's health. He fears that if she does not receive appropriate care soon, she could suffer breakdown of her skin (bed sores etc), severe bowel dysfunction, postural pneumonia and urinary tract infection, each of which could lead to potential local and systemic infection which could result in death.
37. A yet further complication relates to the Claimant's mental capacity. According to the evidence and what I was told by the Claimant's counsel, Mr Lock, the Claimant is a highly intelligent person. However, issues have arisen regarding whether she has full mental capacity in relation to certain kinds of decision affecting her life.
38. By reason of difficulties the CCG was having in getting the Claimant to accept health care services from it in 2008, it commenced proceedings in the Court of Protection to seek a ruling on whether she had mental capacity to take decisions affecting her health. The application was heard by McFarlane J (as he then was), sitting in private. On 5 March 2009 he handed down his judgment, in which he found that the Claimant generally had full mental capacity with respect to decisions regarding her health care, although he also found that in certain very specific circumstances, if she were admitted to hospital for emergency treatment, she would at that point lack capacity and would be unable to make rational choices as a consequence of her PTSD.
39. Dr Ralston is concerned that the Claimant's capacity in relation to the provision of care has deteriorated further since those proceedings. He notes that she is in many ways a bright, articulate and intelligent woman, but considers that she does not have capacity concerning questions regarding access to health care, because she is so fearful and scared of the imagined situation of receiving care and the consequences it might lead to.
40. Therefore, in April 2014 the CCG issued a fresh application in the Court of Protection to seek a determination whether the Claimant has capacity within the meaning of the Mental Capacity Act 2005 to make decisions concerning, amongst other things, undergoing an assessment of her healthcare requirements and in relation to the provision of care to meet her needs. It is in the context of the consideration of those questions that the Court of Protection has said it would be assisted by a ruling of this court on the legal issue I have identified.
41. There is a yet further layer of complication on top of all this. From mid-2013, the CCG has, with the Claimant's consent, been in contact with Midland Heart to explore the possibility of Midland Heart providing the Claimant with a different flat of a bigger size suitable for her needs and with an additional room for a carer, and located outside the West Midlands. On 18 October 2013, at a meeting with the CCG, Midland Heart confirmed that it would be willing to support the Claimant in moving out of the West Midlands. There was also exploration of the possibility of the Claimant registering with local authorities outside the West Midlands, in the hope that they might be able to assign a suitable property for her use in the exercise of their housing authority functions. In parallel, the CCG has been trying to agree independent care manager arrangements which the Claimant would find acceptable.
42. On 4 November 2013, at a case management hearing in the present judicial review proceedings before Lewis J, the court issued directions aimed at trying to move forward in a constructive way on the question of provision of suitable accommodation for the Claimant. The court directed that the Claimant should, by 30 November 2013, confirm in writing, through her solicitors, that she is prepared to co-operate with Midland Heart and take the steps required by Midland Heart to enable it to consider and (as considered appropriate by it) assess her housing situation; that she should, by 7 November 2013, confirm in writing that she is willing to register with any local housing authority nominated by the CCG; and that the parties should prepare a joint report to be lodged with the court by 31 March 2014 to explain the steps taken and the position at that time in relation to the Claimant's housing situation.
43. The Claimant, through her solicitors, gave the confirmations required. A joint report was prepared, which was agreed by the solicitors acting for the Claimant. It states that the Claimant has registered for housing purposes with a number of local authorities in the Midlands and South West. The report appended a chronology provided by Midland Heart of its correspondence with the Claimant. Midland Heart offered the Claimant various forms of assistance and requested certain information from her to assist it in assessing her housing requirements. The chronology records, for example, that on 14 November 2013 Midland Heart offered to provide the Claimant with information about housing stock which Midland Heart has in areas of her choice. The Claimant, however, did not reply to Midland Heart's requests, and refused to supply details of her GP. The joint report records:

"On 10 February 2014, Midland Heart Housing Association closed their case due to no further contact from the Claimant. The Claimant has not registered with the Homes Direct website [to which Midland Heart had directed her] or provided Midland Heart Housing Association with the information required under [Lewis J's order]. The Claimant has not allowed Midland Heart Housing Association to review and assess her current property or contact her GP."

44. Thus the impasse in relation to the Claimant's housing needs, which Lewis J had hoped to resolve by his order in November 2013, has continued. She remains in her Midland Heart flat in Birmingham. Mr Lock says that if this court rules that the CCG has an obligation to provide suitable accommodation for the Claimant, that may assist in resolving that impasse.
45. However, Mr Lock realistically acknowledges that there is now a serious question whether the Claimant has mental capacity to take decisions in relation to her accommodation needs. He informed me that he had sought and obtained instructions from the Claimant to permit him to mention this to the court. Ms Morris QC, for the CCG, also says that there is a serious question regarding the Claimant's mental capacity in relation to decisions affecting this aspect of her life. Although the CCG's current application to the Court of Protection does not, at the moment, seek a ruling on the Claimant's capacity in this regard, Ms Morris gave an undertaking on behalf of the CCG to seek to amend its application to raise this issue as well.
46. That seems highly desirable to me. The way in which the Claimant first appeared willing to comply with the directions issued by Lewis J, but then failed to co-operate with Midland Heart, provides recent objective grounds for thinking that the Claimant may now be subject to a lack of capacity in this area. Certainly, this is something which should be explored in the Court of Protection proceedings.
47. It appears from the available evidence and from what I was told on instructions by Ms Morris that Midland Heart has housing stock in areas outside the West Midlands which might potentially be suitable for the Claimant's needs. It also appears that if the Claimant (or someone with authority to act on her behalf under an order of the Court of Protection) were prepared to co-operate with Midland Heart by providing its officers with relevant information and allowing them to visit her flat as part of the process of assessment of what she might be offered, Midland Heart would again be willing to seek to find suitable accommodation for her.
48. Mr Lock submitted that there might be problems in securing continuation of housing benefit sufficient for the Claimant to pay rent to Midland Heart if she moved to a larger flat with a spare bedroom which could accommodate a carer staying with her overnight. After the hearing, he sent the court a copy of regulation 9 of the Housing Benefit Regulations 2006. He suggested that by virtue of this provision the Claimant would not be entitled to housing benefit if she moved, because she would then be in "residential accommodation" (regulation 9(1)(k)). This is defined to include accommodation provided "in a care home" (regulation 9(4)(a)). Mr Lock's suggestion was that if the Claimant went into a new flat with care being provided as well, that would count as a care home, and housing benefit could not be paid. He relied on R (Moore) v Care Standards Tribunal [2005] EWCA Civ 627; [2005] 1 WLR 2979 in support of this suggestion.
49. I was unpersuaded by Mr Lock's argument by reference to regulation 9 that it provides an insuperable objection to thinking that there is a real prospect that Midland Heart could find a suitable flat for the Claimant, with rent funded by payment of housing benefit, if the Claimant (or someone with authority to act on her behalf) co-operated with the assessment by Midland Heart which would be required.
50. I do not consider, on the limited argument which I heard on the point, that Mr Lock's suggestion regarding the effect of regulation 9 is correct, even if the Claimant were assigned a full time carer to live with her in a new flat. As a matter of ordinary language, it does not seem to me that this would make her own private home into a care home.
51. Mr Lock primarily based his submission on the decision in Moore. But Moore was a case concerned with very different facts and a different issue arising in the context of different legislation. In that case, the claimants had severe learning difficulties which required them to receive extensive nursing and personal care and were long-term residents of registered care homes. The registered owner of the homes, F Ltd, transferred the freeholds of the homes to another company, H Ltd, which granted each of the claimants an assured tenancy. F Ltd continued to apply the same care as before at the homes. F Ltd applied to deregister the houses as care homes, contending that the accommodation element was now provided by a tenancy granted by H Ltd, so that the homes ceased to be care homes for the purposes of the Care Standards Act 2000. The application to deregister was refused by the relevant regulatory body and the tribunal, and F Ltd's application for judicial review was dismissed. It was accepted for the purposes of the appeal that H Ltd and F Ltd, together with each house, were an establishment (see [21]). Since the Act defined a care home as an establishment, the Court had no difficulty in concluding that the relevant houses should continue to be registered as care homes. I did not find the case of assistance as a guide for resolution of the issues before me.
52. Further, I do not think that it can possibly be the case that the provision of any element of health care at all at a person's own home has the effect of converting their home into a "care home", with the effect that they lose the right to housing benefit and with the further effect that the full cost of their accommodation is forced upon the NHS. That is not something that happens in practice. It would in my view involve a bizarre interpretation of the concept of "care home" in the NHS Act and the Housing Benefit Regulations. It was unclear whether even Mr Lock was seeking to go that far in his submissions. In the periods when the Claimant has been in receipt of health care services at her home, she does not suggest that she lost her right to housing benefit for those periods.
53. In the present case, we are not at a point at which it has been established what level of care may be required by the Claimant if she moves to a new flat. It is not known whether the care with which the Claimant requires to be provided will involve round-the-clock attendance, whether it will be at the same level as the care being provided in the Moore case or whether something less will be sufficient. I note that the health authorities in Wiltshire did not accept that there was a need for round-the-clock care, when the Claimant moved there. The CCG has not yet been able to assess the Claimant's care needs, other than in a very general way, because of her resistance to co-operating with it as a result of her PTSD. She has not been subject to any recent, full medical examination. All the medical reports about her which I was shown were prepared some years ago. The most recent report, of a psychiatrist called Dr Dhar, dates from October 2011. The Claimant has in fact been living for many years in her flat without 24 hour care.
54. It is possible that the Claimant, when she is properly assessed, will be found not to need a round-the-clock care presence, albeit she might need accommodation which would allow a carer to stay overnight on some or even many nights. If round-the-clock care or something similar is not required, it would be still more difficult to regard her own home as a "care home" in relation to which housing benefit would not be payable.
55. Mr Lock also said that the Claimant fears that recent changes to entitlements to housing benefit where a person occupies a house with more than one bedroom would mean that she would not be in receipt of sufficient housing benefit to pay for a larger flat with a bedroom for a carer. However, he presented no detailed argument about this and I was left unpersuaded that there was any real difficulty here. Further, if necessary, the CCG has offered to consider paying the amount of any shortfall between housing benefit payable to the Claimant if she moves to a new flat with Midland Heart and the rent payable for that flat.
56. It is also for note that these supposed problems with housing benefit were not raised by the Claimant or those acting for her at the hearing before Lewis J, nor by Midland Heart in its discussions with the CCG and when it sought to assist the Claimant in finding suitable accommodation pursuant to the order of Lewis J, nor by the Claimant or those acting for her in the course of reacting to that order.
57. In these circumstances, the possibility that Midland Heart could find a property suitable for the Claimant and which could in practice be made available for her to live in is real and is not one which can be discounted.
58. Mr Lock also submitted that there is no realistic prospect that any of the local housing authorities outside the West Midlands with which the Claimant has registered, pursuant to Lewis J's order, would provide her with accommodation suitable to her needs. He says that the Claimant would be low down on their housing lists, in terms of priority need, and so could never in practice expect to have social housing provided for her by any of those authorities.
59. However, I had next to no information about the position in relation to the ten housing authorities with which the Claimant has registered. She has not disclosed any correspondence she has had with them. It is possible that the difficulties in dealing with her which have been experienced by Midland Heart have been experienced by these authorities as well. There was no evidence before me which would allow me to reach the conclusion that, notwithstanding the order by Lewis J that this avenue for provision of accommodation should be tried, it is in fact hopeless. I am unable to discount the possibility that there is a real prospect that she could be offered suitable accommodation by one or other of these housing authorities. So far as I can tell from the evidence before me, something like that appears to have happened when the Claimant moved to Wiltshire previously.
60. Therefore, I find the factual position relevant to the present claim for judicial review to be that there is a real prospect that suitable housing for the Claimant could be provided by Midland Heart or by one of the housing authorities outside the West Midlands with which she has registered, if the Claimant were willing and able to co-operate with them so as to allow them to assess her needs against the housing stock which they have available.

Discussion

61. The Claimant has thus far not proved willing and able to co-operate with those bodies, or with the CCG, to enable them to make the relevant assessments. There is a very real possibility that this is due to the effects of the Claimant's PTSD, and that she is simply incapable of co-operating in the way required. That is a matter which is going to be explored in the Court of Protection proceedings. Alternatively, if in fact the Claimant has full relevant mental capacity to make the decision not to co-operate with these bodies, then it is down to her own voluntary choice that she has failed to co-operate with them, and has thus stymied perfectly sensible proposals to try to find her new, suitable accommodation.
62. In the circumstances of this case, I am bound to say that I think that the former explanation is more likely to be true, but that is going to be a matter for close examination and determination by the Court of Protection. It is not a matter for me to decide by a final and binding ruling.
63. Ms Morris suggested that, for the purposes of the judicial review proceedings, I should assume (in advance of any decision to the contrary by the Court of Protection) that the Claimant does have full mental capacity in relation to decisions regarding her accommodation. I disagree. In circumstances where it is the view of the CCG, the view of the Claimant's own counsel and the view of the court itself, based on objective indications, that there is a real possibility that the Claimant lacks such capacity, it would be contrary to the evidence and to common sense to make an assumption that there is not a serious question-mark in relation to that issue. I therefore proceed on the basis that I cannot be sure which of the possible explanations for the Claimant's unco-operative attitude is the correct one – either is possible.
64. What is important for present purposes, however, is that whichever explanation is the right one, I do not consider that this court could properly make the ruling sought by the Claimant under Ground 3 as things currently stand. As was the position at the hearing before Lewis J, there are still real prospects that suitable accommodation for the Claimant could be provided by Midland Heart or by a housing authority outside the West Midlands, which have not yet been fully and properly explored.
65. If the Claimant has relevant mental capacity in relation to decisions regarding her accommodation, then the CCG's decision to date that it does not consider it necessary to meet the reasonable requirements of the Claimant that it should provide accommodation under section 3(1)(b) of the NHS Act would in my judgment be lawful. It could assess that the Claimant has no "reasonable requirement" of accommodation to be provided by the CCG if she has made a free choice not to try to find a larger flat for herself. Further, the CCG could also assess that it is not "necessary" for it to provide her with accommodation, where she already has accommodation and has made a free choice not to pursue other avenues open to her to find better accommodation. On the footing that the Claimant has capacity, if she was acting reasonably she would have co-operated with Midland Heart and the relevant housing authorities to try to find out if they could provide her with suitable accommodation, without having to call on the resources of the NHS to meet her need for accommodation.
66. If, on the other hand, the Claimant does not have mental capacity in relation to decisions regarding her accommodation, then the CCG is lawfully entitled to consider that the appropriate way forward is to seek to raise the question of the Claimant's mental capacity in the relevant forum, the Court of Protection. This is what it is seeking to do, to resolve the uncertainty in which it finds itself. Proceedings in the Court of Protection can be conducted with appropriate speed, where important decisions are in issue.
67. The proceedings in the Court of Protection offer a real prospect that, if the determination is that the Claimant lacks relevant capacity, that Court can take steps on her behalf to carry forward the exploration of the possibilities for provision of accommodation by Midland Heart or housing authorities outside the West Midlands which this court contemplated should happen, pursuant to the order made by Lewis J in November 2013. Since that can now be done, it is still too early to say that the CCG is bound in law under section 3(1) of the NHS Act to find that Claimant has a reasonable requirement of accommodation which needs to be met out of NHS resources.
68. In the very unusual, sensitive and difficult circumstances of this case, I consider that the CCG acted with reasonable promptness to refer the Claimant's case to the Court of Protection. It acted once it became clear that, despite an early indication via the Claimant's solicitors that she would co-operate as required pursuant to the order made by Lewis J, in fact she would not and Dr Ralston became extremely concerned about her. An application to the Court of Protection was not something to be undertaken lightly, particularly when there had been a prior ruling of that Court which suggested that in 2009 the Claimant did have relevant mental capacity.

Conclusion

69. For the reasons given above, I dismiss the claim for judicial review on Grounds 2 and 3.