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[1991] UKSSCSC CIS_371_1990 (03 December 1991)

R(IS) 7/92

Mr. J. J. Skinner CIS/371/1990

Hospital in-patients - whether persons receiving treatment in a private nursing home pursuant to arrangements by the health authority are "patients" in a "hospital or similar institution"

The claimant was mentally ill. He was a patient in a hospital but discharged. He then entered a privately owned registered nursing home. The issue was whether he was a "patient" as defined by regulation 21(3) of the Income Support (General) Regulations 1987.

Held, that:

the claimant was a patient regarded as receiving free in-patient treatment within the meaning of regulation 2(2) of the Social Security (Hospital In-Patient) Regulations 1975, and so was a "patient" under regulation 21(3) of the Income Support (General) Regulations 1987;

the definition of "hospital" in section 128 of the National Health Service Act 1977 applied;

the nursing home was a hospital within the meaning of the Hospital In-Patient Regulations. It was not maintained under the National Health Service Act 1977, but the claimant was receiving treatment there pursuant to arrangements made by the health authority on behalf of the Secretary of State which brought it within regulation 2(2)(b).

Note: This decision has been followed by the Court of Appeal in White v. Chief Adjudication Officer (reported as R(IS) 18/94). From 16 November 1992 regulation 2(2) of the Hospital In-Patient Regulations as considered by the Commissioner and Court of Appeal was substituted by the paragraph in regulation 11 of the Social Security (Miscellaneous Provisions) Amendment (No. 2) Regulations 1992 (SI 1992/2595)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the claimant was a patient within the meaning of regulation 21(3) of the Income Support (General) Regulations during the period 19 September 1988 to 16 February 1989 and his income support was payable at the sum of £8.25 a week during such period.

On 7 August 1991 I gave an interim decision in this case setting aside the decision of the social security appeal tribunal because it was erroneous in point of law. I decided that this was a case where it was expedient for me to make findings and to give the decision myself rather than sending it back to a social security appeal tribunal. Consequently I directed that the case be set down before me on a date convenient to counsel in order that I might make such findings and give the decision myself. The case came before me on 19 November 1991. Mr. A. Layton of Counsel, instructed by Bevan Ashford, Solicitors of Exeter, again appeared for the claimant and Mr. Butt from Solicitor's office in the Department of Social Security again represented the adjudication officer.

The adjudication officer by a decision issued on 15 September 1988 reviewed an earlier decision and decided that income support was payable at the weekly rate of £8.25 only to the claimant from 19 September 1988 because, in the opinion of the adjudication officer, he was to be treated as a patient.

At the time of his claim the claimant was a single man aged 60 years. He was mentally ill. He suffered from psychiatric illness and was unable to handle his own financial affairs. He was a patient in hospital but he was discharged on 5 October 1987. He then entered Caerleon Court, a privately owned institution.

Regulation 21(1) of the Income Support (General) Regulation 1987 provides that certain persons shall have their applicable amounts for the purpose of income support determined in accordance with Schedule 7 to the regulations. Paragraph 1 of Schedule 7 deals with patients and the applicable amount in respect of such people is specified in column (2); it is much less than they would receive otherwise. "Patient" is defined in regulation 21(3) as follows:

" 'Patient' means a person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations 1975."

Regulation 2(2) of the Social Security (Hospital In-Patients) Regulations 1975 is 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 maintained or administered under the National Health Service Act 1977 or the National Health Service (Scotland) Act 1978, 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 or by anybody in exercise of functions on behalf of the Secretary of State under those Acts in a hospital or similar institution not so maintained or administered;

and such a person shall be regarded as being maintained free of charge in such a hospital or similar institution for any period unless his accommodation and services are provided under section 65 or the National Health Service Act 1977 or section 58 of the National Health Service (Scotland) Act 1978."

The National Health Service Act 1977 section 128 provides a definition of hospital for the purposes of that Act, it is as follows:

" 'hospital' means -

(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,

and includes clinics, dispensaries and out-patient departments maintained in connection with any such home or institution, and "hospital accommodation" shall be construed accordingly;"

That definition is for all practical purposes identical with the definition contained in section 79(1) of the National Health Service Act 1946. Although the word "hospital" is not defined in the regulations themselves, it is clear that the wording of regulation 2(2) requires that "hospital", for the purpose of the regulations, should be construed as defined in the National Health Service Act 1977 is as follows:

"(1) the Secretary of State may, where he considers it appropriate, arrange with any person or body (including a voluntary organisation) for that person or body to provide, or assist in providing, any services under this Act."

Schedule 3 of the same Act deals with services generally and includes hostel accommodation and section 65 deals with accommodation and services for private resident patients.

The issue before me is whether, as regards the period from 19 September 1988 to 16 February 1989, the claimant was a "patient" within the meaning of regulation 21(3) of the Income Support (General) Regulations 1987. In order to determine that issue, it is necessary to ascertain whether the claimant was regarded as receiving free in-patient treatment within the meaning of regulation 2(2) of the Social Security (Hospital In-Patients) Regulations 1975. Consequently I pose the following five questions:

(1) Was Caerleon Court a hospital or similar institution?

(2) If so, was it maintained or administered under the National Health Service Act?

(3) Was the claimant undergoing medical or other treatment as an in-patient?

(4) If so, did he receive such treatment pursuant to arrangements made under the National Health Service Act 1977?

(5) Was the claimant maintained free of charge?

I turn to the first question. Mrs. Butterworth in evidence said that Caerleon Court was registered as a mental nursing home. The Registered Homes Act 1984 requires registration of mental nursing homes and section 22 provides a meaning of "mental nursing home", namely any premises used for the reception of and the provision of nursing or other medical treatment (including care, habilitation and rehabilitation under medical supervision) for mentally disordered persons, whether exclusively or in common with other persons. In my judgment it is significant that Caerleon Court is so registered. If it were intended that mere domestic care should be provided, then I would have expected Caerleon Court to have been registered as a residential care home under section 1 of the same Act. It is also significant that the health authority provided staff skilled in psychiatric nursing. In Caerleon Court, on Mrs. Butterworth's evidence, there were fifteen nursing staff, including one nursing sister, three state registered nurses as well as the nursing auxiliaries. They were there to look after the patients. They had the skills to do so. Mr. Griffith has told me that the patients did not require acute treatment, such as ECG treatment, and what they required was that their continuing care needs should be dealt with by skilled nursing staff, who knew how to care for people with odd behaviour or strange behaviour. Mrs. Butterworth said that the nurses took care of the patients, where necessary they helped them to dress, they arranged card games and bingo and that they "kept an eye on them". A number of patients were able to dress themselves. The nurses administered medicine, if it was prescribed by the general practitioners. I am satisfied that the main purpose of Caerleon Court was to provide care for the patients, but that such care was provided by nursing staff who were professionally trained to look after and attend the mentally sick. It seems to me that such nursing is similar to that provided in a hospital for the mentally ill. It goes beyond what was described by Lord Denning in Ministry of Health v. Royal Midland Counties Home for Incurables (1954) 1 Chancery 530 at 547, as "the homely art of making people comfortable and providing for their well being so far as their condition allows". It is highly unlikely that the health authority would provide the psychiatric nursing staff if the exercise of their professional skill was not required. Caerleon Court comes very near to falling within the definition of a "hospital" as contained in section 128 of the National Health Service Act 1977. Mr. Butt does not seek to say that it is a hospital; he contends that it is a similar institution to a hospital. The point has been earlier considered by a Commissioner in CP/63/1988. He was of the view that the word "similar" could only be construed and applied after careful consideration of its context. He pointed out that the context of regulation 2(2) of the Social Security (Hospital In-Patients) Regulations is the substantial reduction of the personal benefit payable to persons who, in effect, are not having to meet the basic expenses of living because their basic living needs are being provided, free of charge to such persons, by hospitals in which they are patients. While I agree with the Commissioner that one has to look to the context, I respectively think that, when considering whether an establishment is a similar institution to a hospital, the pith is the treatment and care given by the establishment and the similarity between those and the treatment and care which are provided in a hospital. This is a question of fact and degree in each case. I would distinguish CP/63/1988 anyway from the case at present before me on the grounds that the patients there were more independent in managing their lives and the care given was less. I find that Caerleon Court is a similar institution to a hospital and I must answer the first question in the affirmative. There was evidence before me that some of the patients in Caerleon Court were "sectioned". An admission under the Mental Health Act 1983, whether for assessment or treatment, can only be made to a hospital. Such evidence strengthens my view that Caerleon Court was a similar institution to a hospital.

The next question is whether Caerleon Court was maintained or administered under the National Health Service Act. The case for the claimant is that the establishment was both administered and maintained by Mrs. Butterworth. The solicitors for the West Dorset Health Authority on 4 August 1988 stated that the health authority would be providing qualified care staff and that they would be provided on a full-time basis and under section 23 of the National Health Act 1977. They further stated that the home was to be self-financing but that the health authority would, under section 23 of the Act, provide a top-up grant in respect of any deficit in the annual budget. Much of the evidence, in particular the further statements submitted on behalf of the claimant, sought to explain the circumstances under which this letter was written and that the reference to deficit payment was not intended to refer to Mrs. Butterworth's home but to another home. I accept that policy in relation to these homes was being formulated at the time the letter was written and that there was an amount of confusion. I find that it was not the intention of the health authority to meet deficit in Mrs. Butterworth's annual budget. However I find that the health authority did provide nursing staff in order to meet the needs of the claimant and his fellow patients. Mr. Griffiths was unable to give me particulars of the cost to the authority during the relevant time, but he said that the approximate cost in 1991 of providing such staff was £165,000 and that Mrs. Butterwotrth paid the sum of £75 a week in respect of each patient to the authority, the sum paid at the relevant time was £40. On a rough approximation, I find that the health authority paid two thirds of the cost of the nursing care. I am satisfied that Mrs. Butterworth meets all the domestic expenditure in respect of running the establishment and that the health authority makes no contribution in respect of that. Mr. Butt has submitted that it is sufficient if an establishment is partly administered or maintained. It seems to me that the true position was that the health authority did no more than supply the services of the nursing staff for the treatment of the patients (treatment in the sense of skilled nursing) but that they did not, either by doing so, or in any other way, maintain or administer Caerleon Court. Consequently while I decided that the establishment is a similar institution to a hospital, I find that it was not maintained or administered under the National Health Service Act 1977.

I find it convenient to deal now with the fourth question, namely whether the treatment received by the claimant was pursuant to arrangements made under the National Health Service Act 1977 in a hospital or similar institution not so maintained or administered; the issue which arises under regulation 2(2)(b) of the Social Security (Hospital In-Patients) Regulations. There was overwhelming evidence before me that the claimant's treatment was pursuant to arrangements made by the health authority under section 23 of the National Health Services Act. It could only be otherwise if I were to give a limited meaning to the word treatment. I have evidence that the health authority arranged with Mrs. Butterworth for the care in Caerleon Court of mentally ill people, including the claimant. They provided psychiatric nurses and the payment back by Mrs. Butterworth covered about one third of the cost of such staff. The health authority reserved full nomination rights. Admission to Caerleon Court was only made after examination by the consultant psychiatrist. The evidence shows that the health authority played the predominant part in relation to the registration of the home as a mental nursing home. The consultant psychiatrist reported to the health authority on the standard of care provided in the home. It is submitted on behalf of the claimant that the arrangements between the authority and Mrs. Butterworth were not for the treatment of the patients but for their maintenance and care. It seems to me that the arrangement with Mrs. Butterworth was wider than what has been submitted by the claimant. Her establishment provided not alone domestic care but also skilled nursing and the claimant's care and nursing in Caerleon Court was pursuant to an arrangement made by the health authority.

I now turn to the third question, was the claimant undergoing medical or other treatment as an in-patient. The majority of the Court of Appeal in Minister of Health v. Royal Midland Counties Home for Incurables were unable to accept a narrow view of "treatment" as used in section 79(1) of the National Health Service Act 1946 (the precursor of section 128 of the National Health Service Act 1977). Evershed MR had this to say at page 541:

"In my judgment, 'treatment' in the definition of 'hospital' includes not only medical treatment (I can leave out, for the present purposes, dental treatment), in the sense that the patient or subject 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".

I am satisfied on the evidence before me that the claimant was undergoing treatment in that sense. He, in common with the other patients, was looked after and attended to by nurses trained in psychiatry. Where such nursing is provided for the mentally ill then it seems to me all the more so to be treatment, treatment as envisaged by the regulation. The evidence is that the claimant lived and slept at Caerleon Court and consequently falls within the definition of an "in-patient": see R(S) 8/51 and R(I) 14/56.

The last question which arises is whether the claimant was maintained free of charge during the relevant period. Prior to 2 November 1987 regulation 2(2) provided that the claimant was not to be regarded as being maintained free of charge:

"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."

On the basis of that test I would have had no hesitation in finding that the claimant was not maintained free of charge. However the regulation was amended by the Social Security (Hospital In-Patients) Amendment (No. 2) Regulations 1987, SI 1987/1683, as from 2 November 1987. The regulation as it now stands reads as follows:

"And such a person shall be regarded as being maintained free of charge in such a hospital or similar institution for any period unless his accommodation and services are provided under section 65 of the National Health Services Act 1977..."

The amended regulation was the subject of elucidation by the Commissioner in CS/248/1989, at paragraph 7 of the decision he had this to say:

"7. The crucial words are the 'full-out' words. They came into effect on 2 November 1987, and effectively rendered regulation 4 more stringent in its application. For the 'full-out' words define what must be considered 'maintained free of charge', and it is quite clear from the terms used that, unless a claimant can bring himself within section [65] of the National Health Service Act 1977 (which applies to private patients in National Health Service Hospitals) or section 58 of the Scottish equivalent Act, he will be regarded as being maintained free of charge, so long only as he is residing in a hospital. It is immaterial whether or not he is in fact making from his own resources some contribution, whether in cash or in kind. He will still be treated as being maintained free of charge."

It is true that the Commissioner was considering the position in relation to a National Health Hospital, such a hospital as would be the subject of regulation 2(2)(a), but it seems to me that the "full-out" words are a statutory definition for both sub-paragraphs (a) and (b) and I see no reason to limit their application. Section 65 of the National Health Service Act 1977 relates only to fee paying patients in National Health hospitals and clearly the claimant cannot satisfy that condition. I have given anxious consideration to the construction of the "full-out" words and in particular as to whether it would be possible to restrict them to cases arising under regulation 2(2)(a) but it seems to me that they are clear and unambiguous and I cannot do so. They embrace both sub-paragraphs (a) and (b). The language, construed its context, produces a harsh result but it seems to me that it necessarily requires that result. I have considered both the object of the regulations and the history of the amending regulation. The object of the regulations was that a person should not receive a double advantage out of public funds, namely free hospital treatment and the cost of maintaining himself outside hospital. R(S) 4/84 decided that a claimant was not to be regarded as "receiving or having received free in-patient treatment" within the meaning of the regulations when she took her meals outside a hospital and only slept there at night. That was the state of the law prior to the making of the amending regulation in 1987. I have considered whether the amended definition was intended to cure such a lacunae and applied to National Health hospitals only. But if that was the intention, it would be a simple matter for the draftsman to draft accordingly.

Date: 3 December 1991 (signed) Mr. J. J. Skinner Commissioner