ON APPEAL FROM
THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
(Upper Tribunal Judge Turnbull)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE DAVIS
| Secretary of State for Work and Pensions
|- and -
|Alexander Slavin (by his litigation friend Patricia Ann Slavin)
David Blundell (instructed by the Free Representation Unit) for the Respondent
Hearing date : 9 November 2011
Crown Copyright ©
Lord Justice Richards :
"2. The Claimant is a man now aged 30. He has been diagnosed as having the following medical conditions: severe learning disability, Fragile X Syndrome (autistic traits), challenging behaviour, hay fever, gingivitis, sensitive skin and epilepsy.
3. The most striking consequence of his condition is that his behaviour can be extremely challenging, such that he needs to be continuously supervised by at least one, and sometimes two care staff, who must be ready to intervene in order to attempt to prevent him causing damage to property or injury to himself or others. He can say basic sentences and make his basic needs known, and is able to make some simple choices such as what to eat and drink, what to wear, and whether he would like to go out. However, he needs others to assess basic risks and to protect him from harm.
4. Until 26 November 2007 he lived at home, but with a high level of care and supervision from care workers when his father was at work. It was not safe for his mother to be at home alone with him.
5. His behaviour eventually became too challenging for his parents to be able safely to cope with him at home, and on 26 November 2007 he moved into a care home which I will refer to as 'The Lodge'. It is privately owned and run. Although it is staffed by appropriately experienced and skilled care staff, it does not have any staff with medical or nursing qualifications. The very substantial fees for the Claimant's accommodation and care there are paid by the Bradford & Airedale Teaching Primary Care Trust ('the Health Authority') i.e. in effect by the National Health Service. The Health Authority agreed to pay the whole of the cost of the Claimant's accommodation and care following assessments under the National Framework for NHS Continuing Healthcare and NHS- funded Nursing Care.
6. The Claimant was in receipt of the higher rate of the mobility component and the highest rate of the care component of [DLA] while living at home. However, on 18 February 2008 a decision was made that neither component of DLA was payable from 26 December 2007 on the ground that the Claimant was
'being maintained free off charge while undergoing medical or other treatment as an in-patient in a hospital or similar institution under the [National Health Service Act 2006]'
within regulations 8 (care component) and 12A (mobility component) of [the 1991 Regulations]. However, the Claimant is from time to time taken out by his parents for days out or longer holidays, and both components of DLA have apparently been paid in respect of entire days when he is not at The Lodge .
7. The Claimant appealed against the decision of 18 February 2008, contending that the fact that The Lodge did not have qualified nursing staff meant the Claimant was not in a 'hospital or similar institution' and therefore that neither reg.8 nor reg.12A applied. The Tribunal, by the decision now under appeal to me, dismissed the Claimant's appeal, finding that The Lodge was a 'hospital or similar institution'."
The legislative framework
(a) any institution for the reception and treatment of persons suffering from illness,
(b) any maternity home, and
(c) any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation
'illness' includes any disorder or disability of the mind and any injury or disability requiring medical or dental treatment or nursing."
The 1991 Regulations
(1) Subject to regulation 10, it shall be a condition for the receipt of a disability living allowance which is attributable to entitlement to the care component for any period in respect of any person that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient -
(a) in a hospital or similar institution under the NHS Act of 1977, the NHS Act of 1978 or the NHS Act of 1990; or
(b) in a hospital or other similar institution maintained or administered by the Defence Council.
9. Persons in care homes
(1) Except in the cases specified in paragraphs (3) to (5), and subject to regulation 10, a person shall not be paid any amount in respect of any disability living allowance which is attributable to the care component for any period where throughout that period he is a resident in a care home in circumstances where any of the costs of any qualifying services provided for him are borne out of public or local funds under a specified enactment.
(6) In this regulation references to the costs of any qualifying services shall not include the cost of -
(f) services provided pursuant to the National Health Service Act 2006 .
12A. Hospitalisation in mobility component cases
(1) Subject to regulation 12B (exemption), it shall be a condition for the receipt of a disability living allowance which is attributable to entitlement to the mobility component for any period in respect of any person that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient -
(a) in a hospital or similar institution under the NHS Act of 1977, the NHS Act of 1978 or the NHS Act of 1990; or
(b) in a hospital or other similar institution maintained or administered by the Defence Council ."
The main authorities
"I am unable to accept this narrow view of 'treatment'. In my judgment, 'treatment' in the definition of 'hospital' includes not only medical treatment (I can leave out, for present purposes, dental treatment), in the sense that the patient is looked after and attended to by a doctor, but also nursing in the sense that the subject or patient is looked after and attended to by persons professionally trained to look after and attend to the sick. In my view, such a conclusion follows inevitably from a reading together of the two definitions of 'hospital' and 'illness'; for, so read together, 'hospital' means (inter alia) 'any institution for the reception and treatment of persons suffering from any disability requiring nursing'. And, I add, 'requiring nursing as distinct from medical or dental treatment.'"
"The key to the legal position lies in the fact that the Act draws a sharp distinction between 'treatment' and 'care' . If an institution is provided for the reception and 'treatment' of incurables, it is a hospital and is to be taken over by the State; but if it is provided only for their reception and 'care' of them, it is not. Where is the line, then, to be drawn in this regard between 'treatment' and 'care'? Neither is defined in the Act, but 'treatment' means, I think, the exercise of professional skill to remedy the disease or disability, or to lessen its ill-effects or the pain and suffering which it occasions; whereas 'care' is the homely art of making people comfortable and providing for their well-being so far as their condition allows. 'Nursing', too, is not defined; but it covers, I think, both treatment and care. Some part of it, indeed an important part of it, is the exercise of professional skill; but a goodly part, perhaps the larger part, is just kindness and attention. When the Act, therefore, defines 'illness' as including any disease or disability requiring [medical] or dental treatment, or nursing, it means, I think, a disability which requires the exercise of professional skill, as distinct from a disability which only requires care and attention.
Likewise, when the Act defines 'hospital' as an institution provided for the reception and treatment of persons suffering from illness, it means an institution provided for the exercise of professional skill upon them, as distinct from an institution provided for the care of them. There are, of course, many institutions which have both objects. Their purpose is to treat persons suffering from illness by the exercise of professional skill, and to look after them as well. The position of these institutions depends, I think, on their main purpose. If the main purpose is to treat patients for their illnesses by the exercise of professional skill, then the institution is a hospital. But if the main purpose is only to take care of them and make life more comfortable for them, then it is not a hospital but a home, and is not caught by the Acts. A subsidiary purpose may be to treat them by the exercise of professional skill, but this will not make it a hospital if the main purpose is that it should be a home for them. In an old people's home, there are often nurses with professional qualifications, but that does not make it a hospital ."
" I acknowledge that if the provision of nursing by professionally trained nurses in an institution is minimal, as for example only rarely expected to be required, such an institution may not be a hospital. In this case, however, the 14 applicants are all mentally ill. They require appropriate nursing for and because of their illness. Forest Lodge has, and has agreed to maintain appropriate nurse staffing, including qualified mental nurses. Mr Day, who is in charge, is a mental nurse. All but one of the 14 patients are on medication for their illness. Forest Lodge dispenses drugs on prescription ."
"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 conclusion 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."
The respondent's care needs
"December '06. [He] meets level 3/5 of the Continuing Care criteria. [He] is receiving input from the Behavioural Management Team, consultant psychiatrist and other members of the clinical liaison team including Occupational Therapy. In daycare he receives intensive support from specially trained staff under the supervision of a healthcare professional due to the nature, frequency and high impact of his behaviours, which are severely challenging, self-injurious, destructive and aggressive and place him and others at significant risk. At home [he] has a tendency to target his mother and extra input is required to provide 1:1 support to keep his mother safe.
August 07 update [his] behaviours have escalated to the extent that he now needs 2:1 support to keep him and others safe from his self-injurious and aggressive behaviour, which can occur at any time. There are also concerns about his increasing weight gain and [he] is unable to access exercising type activities such as walking and swimming unless he has 2:1 support. Some months ago [his] family made the very difficult decision of requesting residential care for [him] because they feel they can no longer cope and he is on the waiting list for a suitable placement to be found. We feel [he] now meets level 5 of the Continuing Care criteria."
"[He] needs a long term 24 hour community placement, that will meet his health and social care needs. He needs to live within easy reach of his parents who he sees on a regular basis.
[He] needs to have a structured day time activity programme, which includes home based and community activities.
[He] will continue to need support with all aspects of his care, including attention to his learning disability needs, his autistic needs, his behavioural needs, his nutritional and diet needs, his psychological and emotional needs and his medical needs.
[He] will continue to need support to access all health and medical professionals to ensure his well being.
[He] needs access to some form of transport so that he can use a vehicle when he needs it."
The care provided at The Lodge
"The staff team have been provided with training related to the specific needs of the service users; this is approached through an initial induction and ongoing training. The induction is designed to the Learning Disabilities Award Framework and staff are encouraged to work towards NVQs.
The home has access to a wide range of specialist staff and we are able to access GP services. Any individual specialist support will be discussed as part of the assessment undertaken upon referral to the service."
The judgment of the Upper Tribunal
The issues in this appeal
(1) whether the care provided to the respondent by staff at The Lodge amounts to "medical or other treatment" within the meaning of regs. 8 and 12A;
(2) whether "medical or other treatment" received by the respondent away from The Lodge can bring him within the scope of the regulations; and
(3) whether The Lodge is a "hospital or similar institution" within the meaning of the regulations.
The case for the Secretary of State
The case for the respondent
Lord Justice Davis :
Lord Justice Pill :
"There was, however, at the relevant date 'palliative treatment' being administered to about one-third of the inmates; by which I understand to be meant treatment of the nature of physiotherapy, massage and so forth, designed to alleviate suffering or arrest their disease."
"Professional nursing is, in my judgment, 'treatment' in relation to incurables, in the same way that it is, as I think, envisaged in the definition as 'treatment' in relation to convalescence."
"Between 'treatment' and mere 'care' (which I assume to comprehend 'looking after' by persons not professionally trained for such purpose)."
I agree with Richards LJ, at paragraph 54, that nursing should be taken to have moved on since the days of the Leamington Spa case and that much of what was then done by professionally qualified nurses is now done by nursing assistants working under the supervision of qualified nurses.