England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
THE HON MR JUSTICE BEATSON
[2007]EWHC 2391(Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/08/2008

Lord Justice May:

Introduction

1. It is not satisfactory when two publicly funded public authorities engage in expensive litigation to decide which of them should pay for the care in her home of a woman whose mental and psychological conditions require constant and expensive care. In the end, the money for the care and the money for the litigation is all coming out of the same purse. The question is whether her needs are primarily for health care or for care which a social services authority should undertake. The respondents, Manchester Primary Care Trust, decided upon intensive consideration that the need was not for primarily health care. The appellants, St Helens Borough Council, who had in fact undertaken and paid for the care for a number of years, now maintain that the care is not such that their social services department should be required to undertake it. Both parties agree that one or other of them has to be responsible. There can be no gap.
2. St Helens challenged the PCT's decision in judicial review proceedings on a number of grounds, all of which Beatson J rejected in a judgment of 7^th September 2007, when he refused permission to bring the judicial review proceedings. The judgment may be found at [2007] EWHC 2391 (Admin) and may be referred to for details which this judgment will not need to contain. A recent complication is that the Secretary of State has now decided that PE, the woman requiring the care, is ordinarily resident in Manchester, not St Helens. Upon an assumption that the PCT's decision under challenge is upheld, this would mean that Manchester City Council is responsible for her future care unless of course the Secretary of State's decision were to be successfully challenged.

Facts

3. PE is a woman in her mid-thirties who suffers from Dissociative Identity Disorder. The current annual cost of her care is in the order of £675,000. St Helens had been involved since PE's birth in 1975, and in 1978 a care order was made in relation to her. In the autumn of 1999, there was a recommendation that she live in her own property with 24 hour care. The present care arrangements have essentially been in place since April 2000. She sees Dr Sinason in London for weekly psychotherapy. PE has until recently had three carers during the day and two during the night. The carers provide support with daily living, including taking medication, and in dealing with her aggressive and sometimes self-harming behaviour. Summary details of the care and of its progress may be found in paragraphs 15 to 18 of Beatson J's judgment.
4. There were difficulties in the relationship between PE, JW, her former foster parent who was involved in the care, and the council. These culminated in best interests proceedings started in October 2005 in the Family Division and heard by Munby J. For these proceedings, a number of reports were prepared including by Dr Nicholas Land. Beatson J concluded that Dr Land's reports, dealing with the relationship between PE, JW, the carers and the council, were not an analysis of whether her care need was primarily for health care. The best interests proceedings ended in December 2006 by an order made by agreement limiting the role of JW. PE herself was represented by the Official Solicitor, as she is in the present proceedings. The Official Solicitor is understandably concerned on her behalf at the disturbing effect of protracted litigation.
5. In November 2005, the PCT agreed to undertake a continuing healthcare assessment of PE. They commissioned or received a number of reports as set out in paragraph 22 of Beatson J's judgment. Those who prepared reports were given all the reports prepared for the best interests proceedings including those of Dr Land. There was a multi-disciplinary team meeting on 23^rd November 2006. The conclusion of this team was in short that PE's care needs were not primarily health care needs, but they recommended that the costs of her care should be shared between St Helens and the PCT.
6. A PCT assessment panel considered the matter at a meeting lasting 3 hours 20 minutes on 30^th November 2006. The panel considered systematically the Strategic Health Authority's eligibility criteria for continuing health care. The review of this is contained in an 11 page document. Its conclusion was that PE's needs were not primarily for health care and that, except for physiotherapy and other specific health care matters, the PCT should not fund the care. It is this decision of which St Helens claim judicial review.

The claim for judicial review

7. In brief, the grounds for judicial review were, first, that the views of the multi-disciplinary team were inaccurately recorded and communicated to the panel, and that the team did not apply the applicable eligibility criteria; second, that the panel did not take account of all relevant material, in particular Dr Land's reports; third, that the panel misapplied the criteria; fourth, that the panel's approach to sharing funding responsibility misapplied their own criteria; fifth, that, since PE's condition is unique, complex and fluctuating, the panel's conclusion was irrational. It was submitted that PE's condition could not be more serious, and that, if her needs were not health care needs, no one with mental disability would ever have such health care needs. There was no challenge before Beatson J or this court to the lawfulness of the eligibility criteria adopted by the PCT.
8. As to the first ground of challenge, the judge did not consider that any error in the multi-disciplinary team's thinking and conclusion was shown to have carried through into the panel's decision, which was not identical with the team's recommendations. As to the second ground of challenge, it would be extraordinary if the panel were obliged to read every report ever written about PE, and it was for the panel itself to decide what should be taken into account. The sifting process used did not make the decision perverse, nor was there improper delegation to those three members of the panel who had read the reports for the best interests proceedings. As to the contentions that the panel's approach to the criteria was flawed, they stood back and considered them as a whole and did not give individual criteria insufficient weight. As to the challenge on the ground that the panel's decision was irrational, given the expertise of the panel this was not arguable. They considered that PE's care was unusual, not unique; and that the complexity resulted from the breakdown of her relationship with the council rather than something intrinsic in her care needs. The panel's decision was consistent and reflected the overall recommendation of the multi-disciplinary team. It was also consistent with the views of other bodies and experts.
9. Beatson J considered but, as I read his judgment, rejected a submission that the court should make a substantive decision as to the merits of the respective public authorities' expert conclusions, where the two authorities, each with apparent rationality, reached mutually inconsistent conclusions. He accepted the submission of Mr Knafler, on behalf of the PCT, that the PCT's role in considering the question of health care is primary in the light of the way the relevant legislation is framed (see paragraph 36 of the judgment).
10. Since the panel's decision of 30^th November 2006, there have been two developments. First, the PCT has for a long time now been proceeding, very slowly it has to be said, towards a further assessment of PE's care needs. I understand that this is in the context of a fresh multi-disciplinary team recommendation to the effect that PE's care needs are indeed primarily health care needs. Second, a new National Framework for NHS continuing health care was introduced from 1^st October 2007. This requires local authorities and PCTs to agree a dispute resolution procedure which would not in the first instance require proceedings in court. Accordingly, the present proceedings have become historic. But I am persuaded that they may not be entirely academic, since, if St Helens succeed in showing that the November 2006 decision was wrong, they may be able to recover costs which they have incurred until there is a fresh determination by the PCT. It is not, however, for this court to determine whether such a claim would succeed or not.

Grounds of appeal

11. The grounds of appeal to this court contend that permission to bring the proceedings should have been given. The first ground of appeal is that this is a case in which there are conflicting decisions of two public authorities each exercising statutory powers, and that the court should decide for itself the substantive question whether PE's care needs are the responsibility of St Helens or the PCT. The court's function is not limited to deciding whether the PCT's decision was perverse. Other grounds of appeal are, in summary, that there is an arguable case that the PCT unlawfully failed to have regard to all relevant information, in particular the reports of Dr Land; that it was not sufficient for three members only of the panel to read the reports from the best interest proceedings; and that the PCT misapplied its own policy or reached an irrational conclusion. I refused permission to appeal to this court on the papers. I wrote that, although this was a dispute between experts representing or advising two public authorities, the court's function, if permission were granted, would still be to determine whether the decision of the PCT in paragraph E on page 14 of their decision of 30^th November 2006 was open to challenge on public law grounds. To this extent, the court's function would not be to conduct a general arbitration between the competing expert opinions. I further wrote that the panel were not shown to have erred in applying incorrect or inappropriate eligibility criteria; that where the material potentially available was huge, so that sifting was essential, they were not shown to have failed to take account of relevant material; that it was necessary and appropriate for the panel to decide what detailed material they should concentrate on and their approach was not shown to have been irrational nor to have resulted in a decision which was materially under-informed; and that the necessary contention that the panel's decision was irrationally perverse was unsustainable. I expressed the view that, viewed in the round, it was not a surprising decision in the general circumstances of this most unfortunate case. I had in mind here the idea that most of the care was in the nature of looking after, helping and on occasions restraining PE, not administering to or caring for her health; and that, although it was intense, sustained and perhaps complicated care, those features did not appear to convert what was essentially social care into health care. PE had after all been cared for by St Helens Social Services for many years by people whose training and expertise were not essentially in health care.
12. At an oral renewal of the application for permission on 30^th January 2008, this court, in a constitution of which I was a member, gave permission to appeal, limited to the question embraced in Ground 1 of the grounds of appeal, that is whether the judge was correct to decide that the test to be applied to the challenge to the PCT's decision of November 2006 was an orthodox Wednesbury test. The application for permission on the other grounds stands adjourned. On 23^rd June 2008, the court heard submissions on the ground of appeal for which permission was granted. The other grounds of appeal for which permission has not been granted remain for consideration, if necessary.

Judicial review generally

13. Judicial review is a flexible, but not entirely unfenced jurisdiction. This stems from certain intrinsic features. The court's relevant function is to review decisions of statutory and other public authorities to see that they are lawful, rational and reached by a fair and due process. The public authority is normally the primary decision maker with a duty to apprehend the facts underlying the decision by a fair procedure which takes properly into account all relevant facts and circumstances. If the public authority does this, the court will not normally examine the merits of the factual determination. Accordingly, a court hearing a judicial review application normally receives evidence in writing only, and does not set about determining questions of disputed fact. The court will therefore not normally entertain oral evidence nor cross-examination of witnesses on their written evidence. The normal limit of the court's enquiry into the facts is if the primary decision maker is said to have reached perverse factual conclusions or to have decided the facts without taking relevant material into consideration, or to have considered and been influenced by irrelevant material. If factual decisions of the primary decision maker are shown to have been materially flawed in this way, the normal result is to quash the decision and remit the matter for reconsideration. The court does not often itself make a factual decision which the primary decision maker has not made.
14. In the majority of applications for judicial review, the contest is between the public authority and one or more individuals affected by their decision. But what if the contest is, as here, between two public authorities each with a statutory decision making power, where the decision of one authority may be seen to affect the other?

Legislation

15. Sections 1 to 3 of the National Health Service Act 2006, formerly sections 1 to 3 of the National Health Service Act 1977, require the Secretary of State to continue to promote a comprehensive health service designed to secure improvement in the physical and mental health of people in England, and in preventing, diagnosing and treating illness. With some exceptions, the services so provided must be free of charge. By section 3(1)(e), the Secretary of State is required to provide to the extent that he considers necessary to meet all reasonable requirements, in addition to hospital accommodation and other services which are obviously health care,

"… 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 he considers are appropriate as part of the health service."

Thus expressed, there is in the Secretary of State a degree of judgment as to what he considers necessary, reasonable and appropriate. So far as is relevant to this appeal, the Secretary of State's duty here is delegated to the PCT, but it is, I think, of some significance that the main relevant statutory duty is that of the Secretary of State.

16. There is a definition of "community care services" to be provided by a local authority in section 46(3) of the National Health Service and Community Care Act 1990 which refers to other statutory provisions. These are to be found mainly in sections 21 and 29 of the National Assistance Act 1948 and section 2 of the Chronically Sick and Disabled Persons Act 1970. Section 47(1) of the 1990 Act requires a local authority to carry out an assessment of a person's need for community care services and in the light of that assessment to decide whether his needs call for the provision of such services. By section 47(3), if during the assessment the local authority considers that the person may need services under the 2006 Act, the local authority has to notify the PCT and invite them to assist to such extent as is reasonable in the circumstances, and the local authority has to take account of any services likely to be made available by the PCT. This, so far as it goes, does not suggest that a local social services authority can make a decision following an assessment which will bind a PCT to provide services.
17. It is a little difficult to tease out the relevant duty of local authorities from a combination of the main legislation, but there is no dispute but that St Helens are in appropriate circumstances obliged to provide, not only residential accommodation, but care within that accommodation, or care within a person's home. The powers conferred in both section 21 and section 29 of the 1948 Act are expressed to be exercisable "with the approval of the Secretary of State, and to such extent as he may direct". The Secretary of State here is, we were told, the Secretary of State for Health, that is the same Secretary of State upon whom obligations are placed by section 3 of the 2006 Act. It would appear to follow that the Secretary of State has the power to determine the question whether St Helens or the PCT should provide PE's continuing care. Furthermore, by section 254 of the 2006 Act and paragraph 3 of Schedule 20 to that Act, functions exercisable by local social services authorities include home help, which the local social services authority must provide or arrange for households where such help is required for a person suffering from illness. On the other hand nothing in section 21 of the 1948 Act authorises or requires a local authority to make any provision authorised or required to be provided under the 2006 Act (see also section 29(6)(b) of the 1948 Act). That of course begs the central question in this appeal. Yet further, community care services do not include nursing care by a registered nurse – see section 49(1) of the Health and Social Care Act 2001.
18. All this shows that health care is to be provided by the PCT as delegate of the Secretary of State, and that community care services are to be provided by the local social services authority. There is a dividing line between the two, and by common consent no gap. But where to draw the dividing line in an individual case, and who is to draw it, remains for consideration.
19. The dividing line, depending on the facts of the particular case, depends on whether the person's care needs are primarily health care needs, and by contrast whether they are of a nature which a local authority, whose primary responsibility is to provide social services, could be expected to provide – see R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213. Lord Woolf MR, giving the judgment of the court in that case, said at paragraph 21 that, as the 1948 Act makes clear, the 1977 Act, (now the 2006 Act) is the dominant Act consistent with the long standing role of local authorities as providing assistance as a last resort. I understand this to mean that the 2006 Act is dominant, not in the sense that a decision under that Act will trump any decision of the local authority, but that it is to that Act which the court must go to determine what are health care needs. As I have said, however, the same Secretary of State has a deciding and directing role to play under both statutes.
20. Lord Woolf's extended analysis of the relevant parts of the 1977 Act and the 1948 Act shows that the Secretary of State has to exercise his judgment under the 1977 Act and that he does not automatically have to meet all nursing services; that provision by the social services authority under the 1948 Act may include nursing care which properly falls outside the responsibility of the National Health Service; and generally that the prohibitive effect of section 21(8) of the 1948 Act is limited to those health services which, in fact, have been authorised or required to be provided under the 1977 Act. In the context of nursing services, which are not PE's main need, Lord Woolf said at paragraph 30 that they can be provided as part of a social services care package when they can be legitimately regarded as being provided in connection with accommodation. There can be no precise legal line drawn between those nursing services which are and those which are not capable of being treated as included in a package of care services. The distinction is one of degree depending on the facts of an individual case with consideration being given to both the quantity and quality of the services provided. Having considered at some length circulars and directions relating to eligibility criteria for continuing health care, Lord Woolf said at paragraph 48 that it is for the health authority to decide what should be the eligibility criteria in the co-operative framework envisaged by the circulars. However, the eligibility criteria cannot place a responsibility on the local authority which goes beyond the terms of section 21 of the 1948 Act.
21. In June 2001, following the judgment in Coughlan, the Secretary of State issued a Circular HSC 2001/015; LAC (2001) 18 addressed to both Health Authorities and Social Services Directors. Health authorities (in conjunction with PCTs) working very closely with the local authorities, were asked to ensure that continuing health care policies comply with the guidance. Health authorities were asked to agree joint continuing health and social care eligibility criteria with local councils, setting out their respective responsibilities for meeting continuing health and social care that cover the full range of health and social care services without any gaps (summary and paragraph 12). There was to be a "single assessment process" (paragraph 12). The responsibility for setting eligibility criteria for continuing NHS health care was to remain with health authorities working very closely with local authorities (paragraph 14). These eligibility criteria were based on "the nature or complexity or intensity or unpredictability of health care needs" (paragraph 18). This does not mean, as Ms Richards tended to submit, that care needs are health care needs if they are by nature complex, intense or unpredictable, since they have to be health care needs in the first place – see also paragraph 2 of Annex C, which speaks of health care needs which require regular supervision by a member of the NHS multi-disciplinary team, such as the consultant, palliative care, therapy or other NHS member of the team. It is emphasised that eligibility criteria should not require a local council to provide services beyond those they can provide under section 21 of the 1948 Act. The location of care should not be the sole or main determinant.
22. The Continuing Care (National Health Service Responsibilities) Directions 2004, which came into force on 27^th February 2004, require Strategic Health Authorities to establish a single set of eligibility criteria for the provision of continuing care by PCTs and NHS Trusts. Before doing so, the Strategic Health Authority must take such steps as it considers reasonable to obtain the agreement to the proposed criteria of each relevant local authority. PCTs were required to act in accordance with the criteria and to take reasonable steps to ensure that an appropriate assessment is carried out in all cases where it appears to the Trust that there may be a need for continuing care services. Individuals, but not local councils, dissatisfied with the resulting decision may apply for a review.
23. In R (Grogan) v Bexley NHS Care Trust [2006] EWHC 44 (Admin), Charles J emphasised that the question whether accommodation and care are to be provided by the NHS or the local authority could affect whether the person requiring the care had to contribute to its cost. This is because NHS care is free, but local authority care is means tested. The claimant in that case had been assessed as not qualifying for continuing NHS health care. Charles J was critical of the fact that the local authority had not been joined in the proceedings when the decision could affect them. He expressed the view, which was uncontroversial before us, that there should be no gap between the respective relevant responsibilities of the Care Trust and the social services authority; and that, in assessing whether a person's care need was primarily a health need consideration should also be given to all of the person's relevant needs, their nature, complexity and intensity and to the limit to which a social services authority might lawfully provide social services. He decided on the facts of that case that the criteria applied by the Care Trust were not adequate because they failed to explain what test was to be applied. The decision that the claimant did not qualify for continuing NHS health care was set aside.
24. Following Grogan, in March 2006 the Secretary of State issued further Guidance about NHS continuing Health Care. This required Strategic Health Authorities, in consultation with PCTs and where appropriate local authorities, to review their local eligibility criteria and satisfy themselves that their eligibility criteria and the way in which they are applied are in line with the Grogan judgment and the Guidance. Strategic Health Authorities, PCTs and local authorities should work together in partnership to this end and to ensure that there is no gap. Where these authorities identify a need to revise their eligibility criteria or local procedures in the light of the judgment, they should do so. It was explained (paragraph 13-15) that there will be a primary health care need if the nursing or other health services required by the individual are more than incidental or ancillary to the provision of accommodation which a local authority is under a duty to provide, and are of a nature beyond that which a social services authority could be expected to provide. The nature and intensity of nursing required, whether alone or with other factors, can amount to a primary health need.
25. This was the policy in force at the time of the PCT's November 2006 decision in this case. The eligibility criteria relevant to and applied by that decision complied with the Guidance and, as Mr Knafler was at pains to emphasise, St Helens do not suggest that these eligibility criteria were unlawful. Since then, in October 2007, a National Framework for NHS continuing health care and NHS funded nursing care came into effect. This replaces local eligibility criteria with a single national framework. This provides that neither the PCT nor the local authority can unilaterally decide what the other should provide. There are accompanying Directions. The Framework and the Directions require PCTs and local authorities to put in place a dispute resolution process, such that disputes such as the present should not in future normally feature in the Administrative Court.
26. The eligibility criteria in force and used in this case were drawn up by Greater Manchester Strategic Health Authority after consultation with, and in agreement with, 15 PCTs and 11 local social services authorities. These contain a locally agreed definition of what constitutes a primary health need. These include explicitly that the key test for an individual would be whether they have a primary need for health care rather than accommodation. This will be where the total required care is more than incidental or ancillary to the accommodation and of a nature which could not lawfully be provided by the local authority social services before the enactment of section 49 of the Health and Social Care Act 2001. The eligibility criteria also contain agreed procedures. These require a person's health and social care needs to be assessed by a multi-disciplinary team including both health and social care professionals. That happened in this case. The Team's conclusion was reached by 6 health and social care professionals. The ultimate conclusion was that PE did not have a primary health need.
27. The panel who made the November 2006 decision included experts in the provision of social care in the mental health field and in nursing care, a consultant psychotherapist, members who were not employed by the PCT and who were employed by a local social services authority.

Submissions

28. Beatson J in the present case accepted the submission of Mr Knafler that the PCT's role in considering the question of health care was primary in the light of the way the legislation is framed. So far as is relevant for present purposes, he decided the case with reference to orthodox Wednesbury principles. Ms Richards submits that this was wrong. She submitted that the contest was between two public authorities each reaching apparently competent but opposite conclusions within their respective spheres of statutory authority, and that the court must set about deciding as a matter of substance which of them was correct. She accepts that St Helens has brought judicial review proceedings, but judicial review is flexible and the nature of the contest and the relationship between the contestants here require a substantive decision. Otherwise, there could be, as there are here, two conflicting decisions, each of them apparently rational, and no means, before 2007, of adjudicating between them. If each authority had decided that the other was responsible for PE's care, PE herself could have brought the proceedings which would necessarily have required the court to make a substantive decision.
29. In R (Mahmood) v Secretary of State for the Home Department ([2001] 1 WLR 840, Laws LJ said at paragraph 18 that "the intensity of review in a public law case will depend on the subject matter in hand". Lord Steyn cited this with approval in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at paragraph 28, saying that "in law context is everything". I do not on reflection think that Ms Richards needs to persuade us that intense review is required. She is really arguing for a full blown decision of substance, if necessary after hearing oral evidence (although she disclaims the need for oral evidence in this case). I accept that the mere fact that the proceedings are in the Administrative Court is not decisive. They could be transferred to the Queen's Bench list if that were convenient and proceed as an action. Mr Knafler would, I have no doubt, object that this is simply not how the claimant conducted the proceedings before the judge. They were conducted as conventional judicial review proceedings.
30. Ms Richards points to a number of authorities which, she says, demonstrates the court's willingness and ability to resolve impasses of the kind which exists in this case in judicial review proceedings. On examination, I do not think that most of them help her argument. R v Mental Health Review Tribunal ex parte Hall [2000] 1 WLR 1323 included a decision by Scott Baker J that Torfaen County Borough Council had not properly understood their duty under section 117 of the Mental Health Act 1983. In R (Westminster) v National Asylum Support Service [2002] 1 WLR 2956, the House of Lords decided the extent to which section 21(1A) of the National Assistance Act 1948 requires local authorities to accommodate destitute asylum seekers. In R v London Borough of Redbridge ex parte East Sussex County Council (Potts J, 8^th December 1992), there was a dispute, which the judge determined, as to where two children were ordinarily resident for the purposes of the 1948 Act. In R v Kent County Council ex parte Salisbury and Pierre (2000) CCLR 38, there was another decision as to where a person was ordinarily resident and also a decision that under section 24(4) of the Children Act 1989, the authority responsible for providing ongoing advice and assistance after a person reaches the age of 18 is the local authority in whose area the person lives. In each of these cases the court was determining the application of statutory provisions to the relatively straightforward facts of the case, not adjudicating complicated questions of fact and judgment whose resolution would depend in large measure on the evaluation of expert opinion. More helpful to Ms Richards' submission is R (T.D. and B.) v London Borough of Haringey and Haringey Teaching Primary Care Trust [2005] EWHC 2235 (Admin), in which Ouseley J decided whether the night time care required for the management and safety of a small child's tracheotomy was the responsibility of the local authority under section 17(1) of the Children Act 1989 or of the Primary Care Trust.
31. In addition to emphasising that judicial review is flexible, Ms Richards submits that any substantive decision which the court might make in this case would not trespass into fields of policy, which has been framed by the adoption of eligibility criteria, nor the allocation of resources or questions of public interest. It would require the court to define, with reference to the facts of the case, the lawful limits of what a social services authority may be required to provide and the question whether PE has a primary health need. She submits, with reference to paragraph 22 of the judgment of Simon Brown LJ in R (Wilkinson) v Broadmoor Hospital Authority [2002] 1 WLR 419, that the court is sometimes required to decide disputed questions of professional opinion. St Helens has in this case decided responsibly to continue to provide services while seeking to have resolved the disputed question of responsibility with the PCT. If the court's role is limited to questions of rationality, local authorities could be forced to decline to provide services, leaving it to the person who needs the services to initiate proceedings against both the authorities who are potentially responsible. In those circumstances, the court would have to make a substantive decision, if each authority had made a decision which was not perverse.
32. Mr Knafler submits that St Helens are wrong to say that this is a case of two public authorities each making incompatible but equally lawful decisions about the scope of their own respective functions. The role of the social services authority is to contribute towards and agree the local eligibility criteria, to participate in the multi-disciplinary team's assessment and recommendations and to contribute towards the panel's decision. The PCT's role includes consulting and fairly taking account of the views of the social services authority on the application of the agreed eligibility criteria. Ultimately, however, it is for the PCT to make a lawful decision which determines the continuing care issue, subject to public law challenge on conventional grounds. This is not surprising, since the essential decision is whether a person's needs are primarily for health care. If the PCT decides that they are not, that does not determine how a social services authority may discharge its functions. All that the PCT has decided is that PE's care needs are not primarily health care needs. Under the statutory structure the PCT is the decision maker, and that remains so, whether a challenge is brought by the local authority or by PE herself.

Discussion

33. I am persuaded that Mr Knafler's submission is correct that the PCT, as the delegate of the Secretary of State, is under the statutory framework under consideration the primary decision maker, whose decision is amenable to orthodox judicial review, but not to a fully fledged substantive challenge which the court itself must decide. I give my reasons for this briefly in my own words.
34. The question whether in November 2006 PE's needs were primarily health care needs was to be determined by a highly structured statutory process deriving from, but not exclusively referable to sections 1 to 3 of the 2006 Act. It was a decision to be taken by or on behalf of the Secretary of State, and with reference to Guidance and Directions by the Secretary of State with powers to direct and guide both health authorities and social service authorities. It is correct, as Ms Richards points out, that the Guidance in the present case does not have the formal status of guidance under section 7 of the Local Authorities Social Services Act 1970 (as to which see the judgment of Sedley J in R v Islington London Borough Council ex parte Rixon (1997-8) 1 CCLR 119 at 123, 131), but it is guidance nevertheless directed to both authorities, and part of the structure within which the PCT's decision had to be made. The structure included the agreement with social services authorities of eligibility criteria, whose proper application would determine in an individual case whether the needs of the individual were primarily health care needs or social services needs. In determining the criteria and then determining individual cases, the Guidance and the Directions expressly required that decisions should not saddle social services authorities with the provision of services beyond their statutory competence. Questions of complexity, intensity and unpredictability were relevant, but not in isolation from the question whether the needs were health care needs, nor the corresponding question whether the needs were within or without the statutory competence of the social services authority.
35. The structure then required recommendations from a multi-disciplinary team on which there was social services expertise and membership. Armed with those recommendations, the PCT expert panel then had to decide whether the individual's needs were primarily health care needs. It is relevant to the issue in this appeal, but not determinative, that the substantive decision was, or was likely to be, intrinsically beyond the normal capacity of the court in judicial review proceedings. It is of course correct that the Secretary of State's decision, through the PCT, will determine (subject to challenge on public law grounds) whether the care needs are to be provided by the PCT or the social services authority. But it is not correct that the social services authority has an equivalent or equivalently structured decision making process which can hold its own against those of the Secretary of State, through the PCT, under the 2006 Act. It would be chaotic if this were so.
36. To this extent, as Lord Woolf said in Coughlan, the 2006 Act is the dominant Act, and the decision under it is the determinative decision. Necessarily, as Lord Woolf again said, assistance under the 1948 Act is provided as a last resort, in the sense that, if a person's care needs are not primarily health care needs, they will be social services care needs. For there can be no gap. In the abstract, there might in an individual case be a gap between needs which are primarily health care needs and those which are within the statutory competence of a social services authority as being ancillary to their functions, including providing accommodation. There is, however, no gap because the Secretary of State has put in place a structure which requires the PCT to take account of the social services authority's statutory competence so that the resulting decision will define the services which the social services authority is obliged to provide. The duty under section 3 of the 2006 Act is imposed on the Secretary of State; that under section 21 of the 1948 Act requires the local authority to make the requisite arrangements with the approval of the Secretary of State and to such extent as he may direct.
37. It follows that there is one primary decision maker, not two, and there is no head on collision between two comparable decisions. It then follows that a challenge to this decision will be by orthodox judicial review and the court is not required to determine the conflicting substance of two decisions of equivalent standing. Beatson J was correct to hold that the PCT's role here is primary. I refrain from saying what the position now would be under the National Framework. I refrain also from deciding whether Ouseley J was correct or not to embark on the decision which he made in the Haringey case. That would require a detailed examination of that decision which the determination of this appeal does not require.
38. I would for these reasons dismiss the appeal on the one ground on which St Helens has permission to appeal. It remains for St Helens to decide, in the face of hitherto discouraging provisional judicial indications, whether they wish to pursue their renewed application for permission on the grounds on which I refused permission on paper.

Lord Justice Scott Baker:

39. I agree, I would like in particular to associate myself with the observations of May L.J at the beginning of his judgment. There are many better ways of spending public money than arguing in the courts which of two or more publicly funded bodies should pay for care costs where each party agrees that one or other of them must be responsible. The philosophy that incurring cost does not matter provided it comes out of someone else's budget is to be discouraged.

Sir Peter Gibson:

40. I agree with both judgments