R(IS) 10/96
(Botchett v. Chief Adjudication Officer)

CA (Evans, Henry, Morritt LJJ)	CIS/576/1992
7.5.96

Applicable amount - severely mentally handicapped claimant resident in a nursing home - whether an in-patient
The claimant was resident in a nursing home run by a Trust, registered under Part II of the Registered Homes Act 1984 as a nursing home for the care of mentally handicapped persons. The home had formerly been a unit of a hospital run by the Area Health Authority and had been transferred to the Trust. The nursing and domestic staff transferred with the unit. 24 hour nursing cover was maintained at the home with a minimum of three nursing staff on duty during the day and two at night. The claimant was registered with a GP. The costs of maintaining the claimant were borne by the Trust. Any necessary drugs, treatment or nursing care were administered by the nursing staff. The claimant was one of twelve residents said to be severely mentally handicapped so as to need a high degree of care and supervision in their daily lives, but none of them was mentally ill in the sense that he or she needed or received treatment for mental illness. The residents were not free to come and go as they pleased. The claimant claimed income support on 29 July 1991 on the transfer to the Trust. The adjudication officer decided that she could only be entitled to income support at the modified rate appropriate to an in-patient and that she was not entitled to benefit. Her appeal to the tribunal was allowed on the ground that the home was not a hospital nor a similar institution nor was the claimant an in-patient; she did not fall within regulation 2(2) of the Hospital In-Patient Regulations 1975 because she was not undergoing medical or other treatment and was not being maintained free of charge. The adjudication officer appealed. Before the Commissioner, it was argued on behalf of the adjudication officer that the case was on all fours with White v. CAO (CA 21 July 1993) [R(IS) 18/94] and that, in the light of that decision, the claimant must be held to be an in-patient. It was argued for the claimant that her case was distinguishable on its facts because inter alia she was not mentally ill but only suffered a degree of mental handicap and did not require nursing as had almost all the residents of the home considered by the Court of Appeal in White. The Commissioner rejected that argument on the ground that it was only necessary to consider if nursing care was available if required. The Commissioner allowed the appeal confirming the disallowance of benefit as the claimant’s income from severe disablement allowance equalled the modified applicable amount. The claimant then appealed. It was argued before the Court of Appeal, that she and her fellow residents received care rather than treatment which they did not need and in those circumstances it could not be said that they received “medical or other treatment” or that they were “patients” or that the home was a “similar institution” to a hospital. 
Held, dismissing the appeal, that:
1.	“hospital” in regulation 2(2) should be construed as defined in section 128 of the National Health Service Act 1977. Section 128 defined “hospital” as “(a) any institution for the reception and treatment of persons suffering from illness” and “illness” also defined, included “mental disorder within the meaning of the Mental Health Act 1983 and any injury or disability requiring medical or dental treatment or nursing.” There was no definition of “nursing” but section 1 of the Mental Health Act 1983 defined “mental disorder” as meaning “mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind…”;
2.	malfunction or non-functioning of the mind not caused by illness but due to some defect in the mental processes which might not be identified let alone be treated in the current state of medical knowledge, was within the definition of mental disorder. The argument that the degree of handicap described as “learning difficulties” was not within the definition was rejected;
3.	persons suffering from the degree of mental handicap to which the claimant was subject were within the definition of mental disorder; the care and assistance which they received from nursing as opposed to domestic staff must be regarded as “medical or other treatment” within the statutory definition; and the home in which they resided so that this could be made available to them was a “similar institution” to a hospital.
[Note: A new paragraph (2) of regulation 2 was substituted by regulation 11 of the Social Security (Miscellaneous Provisions) Amendment (No. 2) Regulations 1992, SI 1992 No. 2595, with effect from 16 November 1992.]

DECISION OF THE COURT OF APPEAL

Mr. P. Havers QC (Instructed by Bevan Ashford, Bristol, BS1 4TT) appeared on behalf of the Appellant
Miss N. Lieven (Instructed by the Solicitors to DSS, London WC2A 2LS) appeared on behalf of the Respondent

LORD JUSTICE EVANS: 
The appellant is one of twelve residents at Coombe End, Gloucester, which is registered as a nursing home providing beds for mentally handicapped persons.  All of the residents are said to be severely mentally handicapped so as to need an high degree of care and supervision in their daily lives, but none of them is mentally ill in the sense that he or she needs or receives treatment for mental illness.
The amount of her benefits under the social security regulations depends on whether she comes within an exception which applies to hospital in-patients.  If she comes within it, then she is entitled to receive only what is called the pocket money element.  This depends, as will appear below, partly on the status of Coombe End and partly on her own situation there.
Coombe End since 29 July 1991 has been administered by Mayfields House Trust Ltd. (“the Trust”) which took over responsibility for it from the Gloucester Health Authority of the NHS.  The Trust bears the cost of maintaining the appellant and other residents there, but if she is entitled to receive more than the pocket money element from the DSS then the additional payments will be paid to the Trust.  If she cannot contribute in this way, then the Trust’s costs will have to be met from other sources, which as I understand it means the Health Authority. So the financial implications are important for the Health Authority as well as the DSS on the one hand, and the Trust rather than the appellant as an individual, on the other hand, and it may be that the same issue arises in relation to each of the other residents, although we understand that this is not formally a test case.
The appellant’s claim for income support was made on 29 July 1991, the same day as the transfer to the Trust, and it was rejected on the following day.  She appealed to the Gloucester SSAT (social security appeal tribunal) and her appeal was allowed on 5 December 1991.  The adjudication officer obtained leave to appeal to the social security Commissioner, Mervyn Heald QC.  The hearing before him took place in April 1993 when it was known that an appeal in another case was pending before this Court.  That case was Percival White v. Chief Adjudication Officer and the Secretary of State (SSTRF 93/0312/B) [R(IS) 18/94] and judgment was given in favour of the Department on 21 July 1993, Ralph Gibson LJ presiding.  The Commissioner therefore requested and received written submissions as to the effect of that judgment on the present case, before proceeding to his decision.
The regulations
Regulations 17 and 2(1) and (3) of the Income Support (General) Regulations 1987, which need not be quoted, lead to regulation 2(2) of the Hospital In-Patient Regulations 1975.  This was amended with effect from 16 November 1992 as part of a reorganisation of the NHS but the original form was in force in July 1991 when the appellant’s application was first made. This read:
“(2) For the purposes of these regulations, a person shall be regarded as receiving or having received free in-patient treatment for any period for which he is or has been maintained free of charge while undergoing medical or other treatment as an in-patient-
(a)	in a hospital or similar institution maintained or administered under the National Health Service Acts 1946 to 1973 or the National Health Service (Scotland) Acts 1946 to 1973, or by or on behalf of the Secretary of State, or by or on behalf of the Defence Council; or
(b)	pursuant to arrangements made by the Secretary of State under those Acts in a hospital or similar institution not so maintained or administered;
and a person shall not be regarded as being maintained free of charge in a hospital or similar institution for any period if he is paying or has paid, in respect of his maintenance, charges which are designed to cover the whole cost of the accommodation or services (other than services by way of treatment provided for him in the hospital or similar institution for that period.)”
Mr. Havers QC for the appellant summarised the effect of regulation 2(2), correctly in my judgment, under four heads.  The appellant was within it if, but only if, at the material time she was (1) undergoing “medical or other treatment”, (2) as an in-patient, (3) in a “hospital or similar institution”, and (4) free of charge.  No issue arises in relation to (4) (free of charge) and whilst a point was raised under (2) as to the meaning of in-patient, the argument before us centred on the words quoted under (1) and (3): was the appellant “undergoing medical or other treatment” and was Coombe End, which is admittedly not a hospital, within the phrase “hospital or similar institution”?  These are separate issues but as will appear below they are closely linked and much of the evidence is relevant to both.
The parties’ contentions, in summary, are these.  The appellant says that she and her fellow residents are not mentally sick.  They receive care, rather than treatment which they do not need, and in these circumstances it cannot be said that they receive “medical or other treatment”, or that they are “patients”, or that Coombe End is a “similar institution” to a hospital.  The respondents on the other hand submit that the statutory definitions are such that mentally handicapped persons such as the appellant receive nursing care within the phrase “medical or other treatment” and that Coombe End which provides such care is a “similar institution” within regulation 2(2).
The Commissioner summarised the material facts as follows, after referring to the transfer from the NHS where the unit formed part of the of the Coney Hill Hospital:
“The nursing and domestic staff at Coombe End were the same people after the changeover who had been working there when the property was part of the hospital.  24 hour nursing cover is maintained at the establishment with the minimum of three nursing staff on duty at any given time during the day, and two at night.  Of the 16 full time members of nursing (sic) staff, the equivalent of six are trained, the remainder being untrained.... The claimant is medically registered with a general medical practitioner, who is providing medical certificates as evidence of her incapacity for work.  Costs are borne by the Trust. Any necessary drugs, treatment or nursing care are administered by the nursing staff at Coombe End.  Residents were exempt from liability, at that time, for community charge on the grounds of their mental handicap, and for the same reason residents are not free to come and go from the accommodation as they please.” (p. 8)
He reached his decision in the light of the judgment in White’s case, where the Court held that the Forest Lodge Nursing Home, formerly the St Francis Hospital, was a “hospital or similar institution” where “medical or other treatment” was provided for the residents as in-patients.  He considered in turn each of a number of factual distinctions suggested by the present appellant, and dealt with them as follows:
(para. 10)
“...  in the present case the claimant was not “mentally ill”, but only suffer(s) from a degree of mental handicap, or a person with learning difficulties.  I do not accept ...  that such a distinction ... is valid or material.  In the present case the claimant was resident at Coombe End because she required appropriate nursing and because of her illness”.
(para. 11)
“ ... any difference in  numbers of nurses must depend upon the circumstances of the particular institution”.
(para. 12)
“ ...  in the White case it appeared that all residents were on medication, and no more than one resident at Coombe End was said to be on medication”.  This, the Commissioner said, was not relevant to the basis of the Court of Appeal’s decision, which was based on the nature of the institution itself.  On a related point, as to whether drugs could be dispensed on prescription, the Commissioner said that no evidence was produced by the claimant, which had the burden of proof”.
In conclusion, he stated:
“In my view, in considering whether the present case should be distinguished from White’s case, the overall position should be considered, and on [an] overall view of the facts of the two cases, I have reached the clear conclusion that no valid distinction of law can be made between them.” (para. 13)
The Commissioner held, therefore, that the present case could not be distinguished on its facts from White’s case and that the same result must follow in law.  It would not be right to criticise his approach, particularly when the Court in White had reversed the decision of an appeal tribunal which was to the same effect as that of the tribunal in the present case.  However, the approach has its dangers, because as Mr. Havers pointed out the Commissioner made no express finding as to whether the appellant receives “medical or other treatment”, perhaps because he concentrated on the nature of the institution, as the Court of Appeal did in White.  Such a finding was nevertheless implicit in his conclusion, in my judgment, but I would accept Mr. Havers’ submission that it is necessary to identify the statutory requirements and to consider whether they are satisfied or not in the circumstances of every case.  Just as in White the Court said that it was wrong to make the decision “as a matter of fact and degree by a process of comparison ... between the home or institution in which the claimant resides and some hospital selected for this purpose” (judgment page 22F), so also in my judgment the decision should be made by applying the relevant statutory definition to the facts of each case rather than by a process of comparing one institution with another or the circumstances of individual residents with others.
The judgment in White’s case, however, is binding authority that “hospital” in regulation 2(2) should be construed as defined in section 128 of the National Health Service Act, 1977 (judgment 22B).
This leads to a series of interlocking statutory definitions which I can summarise as follows.  Section 128 defines “hospital” as “(a) any institution for the reception and treatment of persons suffering from illness”, and “illness”, also defined, includes “mental disorder within the meaning of the Mental Health Act 1983 and any injury or disability requiring medical or dental treatment or nursing.”  There is no definition of “nursing”, but section 1 of the Mental Health Act 1983 defines “mental disorder” as meaning “mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind ...”
The more detailed findings of fact made by the appeal tribunal were set out in section 2 of its decision.  It was agreed at the outset that Coombe End is not a hospital.  It is registered as a mental nursing home under the Registered Homes Act 1984.  It was operated before July 1991 in connection with services provided for persons with learning difficulties, and no material changes took place thereafter.  The appellant “is not receiving any medication or medical treatment and is not in the care of a medical Consultant”, and “whatever the status of Coombe End, Miss Botchett cannot be described as an “in-patient”.  She is resident at Coombe End.” Coombe End is a mental nursing home, not a “similar institution” to a hospital.
It was submitted on her behalf that she requires “no more than social care which could be provided in a domestic situation”, and it appears to have been accepted on behalf of the respondents that the treatment received by the residents at Coombe End was “care” and not medical treatment.
The tribunal in its reasons for decision said that Coombe End is a nursing home “for the care of persons with learning difficulties”.
Further facts were taken from the adjudication officer’s submission to the appeal tribunal.  Coombe End provides twelve beds for the care of the mentally handicapped.  It seems that a distinction is drawn between nursing and domestic staff, and that the nursing staff includes some who are trained and others, 10 out of 16, who are “untrained”.  The nature of the residents’ mental handicap is such that “they are unable to make any decisions regarding the choice of meals, purchase of clothing or daily activities”.  An appointed “keyworker” helps each resident to keep to his or her plan of daily activities (para. 5.17).
If the social security regulations stood alone, I would be inclined to accept Mr. Havers’ submission that a distinction should be made between mental illness for which professional treatment is made available in a hospital or similar institution, on the one hand, and various forms of mental handicap for which skilled but domestic care, but not medical treatment, is required and which is made available in a residential home, on the other hand.  But the regulations have to be construed with reference to the statutory definitions of “hospital”, “illness” and “mental disorder” already quoted, and these lead inexorably, in my judgment, to the conclusions that persons suffering from the degree of mental handicap to which unfortunately the appellant is subject are within the definition of mental disorder; that the care and assistance which they receive from nursing as opposed to domestic staff must be regarded as “medical or other treatment” within the statutory definition; and that the home where they reside so that this can be made available to them is a “similar institution” to a hospital within the meaning of regulation 2(2). The key factor, in my judgment, is that the definition of mental disorder includes “arrested or incomplete development of mind” and “any other disorder or disability of mind”. Mr. Havers submits that there is no evidence or expert opinion that this statutory phrase includes the degree of handicap which is described as “learning difficulties” in the present case, but the natural and ordinary meaning of the phrase is sufficiently wide, in my judgment, to include malfunction or non-functioning of the mind not caused by illness but due to some defect in the mental processes which probably cannot be identified, let alone treated in the current state of medical knowledge.
Moreover, this conclusion is supported by the majority judgments in this Court in Minister of Health v. General Committee of the Royal Midland Counties Home for Incurables at Leamington Spa [1954] 1 Ch 530. Denning LJ recognised the distinction between treatment and care, and between the exercise of professional skill in order to improve the condition of a patient and what he called the homely task of providing domestic comforts to persons who were, in that case, suffering from certain incurable diseases or physical complaints, such as arthritis (see p.546).  He held therefore that the institution was not a hospital, but a home.  However, the majority judgments of Evershed MR and Rower LJ concluded that similar, though not identical statutory definitions, to those which are relevant in the present case, led to the conclusion that the institution was within the definition of hospital, in the sense that the inmates were cared for by persons who were professionally trained to care for the sick (p.541).  The facts of that case were far removed from the present, but once it appears that the appellant comes within the statutory definition of “mental disorder” and therefore of “illness” then the same conclusion in my judgment follows.
Miss Lieven for the respondents referred us to The Registered Homes Act 1984 where there are different registration requirements depending on whether the establishment provides “residential accommodation with ... personal care for persons in need of personal care by reason of ... past or present mental disorder” (section 1(1)) or is a “mental nursing home” regulated by Part 2 (sections 21 and 22). Coombe End is registered as the latter. Even though the distinction is substantial and important, I do not consider that the registration under Part 2 should be regarded as inconsistent with the appellant’s case or such as to lead to Mr. Havers’ submissions being rejected if they were otherwise correct.
In conclusion, I would hold that the Commissioner was correct to reach the conclusion which he did, and certainly that he was entitled to do so, and I would dismiss the appeal.  It remains to add that regulation 2(2) in its amended form now reads as follows:
“(2) For the purposes of these Regulations, a person shall be regarded as receiving or having received free in-patient treatment for any period for which he is or has been maintained free of charge while undergoing medical or other treatment as an in-patient-
(a)	in a hospital or similar institution, under the National Health Service Act 1977, the National Health Service (Scotland) Act 1978 or the National Health Service and Community Care Act 1990; or
(b)	in a hospital or similar institution maintained or administered by the Defence Council;
and such a person shall for the purposes of sub-paragraph (a) be regarded as being maintained free of charge in a hospital or similar institution unless his accommodation and services are proved under section 65 of the National Health Service Act 1977, section 58 of, or paragraph 14 of Schedule 7A to, the National Health Service (Scotland) Act 1978 or paragraph 14 of Schedule 2 to the National Health Service and Community Care Act 1990”.
(The Social Security (Miscellaneous Provisions) Amendment (No. 2) Regulations 1992, SI 1992 No. 2595.)
I agree with Miss Lieven’s submission that the appellant continued to undergo “medical or other treatment as an in-patient ...  under the National Health Service Act 1977” notwithstanding the transfer of responsibility for Coombe End from the Health Authority to the Trust in 1991. The presence of a comma after “institution” in paragraph 2(a), as amended, perhaps raises more questions than it answers as to the proper construction of the sub-paragraph, and I prefer to rest my conclusion on the clear apparent purpose which was to reflect changes in the administration of the NHS such as the transfer of Coombe End to the Trust. Moreover, the Health Authority as I understand it assumes liability for the cost of maintaining the appellant there if, as I would hold, she is only entitled to receive the limited amount of income support.
I would dismiss the appeal.

LORD JUSTICE HENRY:  I agree.

LORD JUSTICE MORRITT:  I also agree.

Order:  Appeal dismissed with costs.