Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/3638/2008

ADMINISTRATIVE APPEALS CHAMBER

 

 

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Bradford East on 11 September 2008. For the reasons set out below that decision was in my judgment wrong in law and by way of interim decision I set it aside. In exercise of the power in s.12 of the Tribunals, Courts and Enforcement Act 2007 I make the findings of fact set out in Sections C and D below, with a view to re-making the Tribunal’s decision.

 

I DIRECT that, within one month from the date of issue of this decision, the Secretary of State is to make a further written submission in this appeal (i) stating, in relation to the points referred to in paras. 96 to 103 below, (a) whether he intends to obtain any further (and if so what) evidence and (b) whether he wishes the Upper Tribunal to direct that any, and if so what, further evidence be supplied by the Claimant or other persons or bodies and (ii) making any further submission which he wishes to make at this stage. On receipt of the Secretary of State’s response I will decide what directions to give for further evidence and/or written submissions.

 

A. Introduction

2. The Claimant is a man now aged 30. He has been diagnosed (p.122) 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 (in order to preserve the Claimant’s anonymity) 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 (some £1600 per week as at 2008) 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 (currently £49.85 per week) and the highest rate of the care component (currently £71.40 per week) of disability living allowance (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 of 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 Social Security (Disability Living Allowance) Regulations 1991 (“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 (p.E, confirmed at the hearing before me).

 

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 The Lodge was a “hospital or similar institution”. 

 

8. The contention of the Claimant’s parents, both before the First-tier Tribunal and in the grounds of appeal to the Upper Tribunal, was based on their understanding that as the Claimant was not in receipt of nursing care he remained entitled to payment of the mobility component, albeit not to the care component. That understanding appears to have been based on the assumption that, even if the Claimant was not disentitled to payment of the care component by reg. 8 of the 1991 Regulations, he was in any event disentitled to it by reg. 9, which deals with disentitlement to payment of the care component in respect of (in the words of its heading) “persons in care homes”. (There is no equivalent of reg. 9 in respect of the mobility component). I think that the assumption that reg. 9 would in any event disentitle the Claimant to payment of the care component was made by both parties (it was certainly made by me) until a closer examination of reg. 9 at the hearing before me revealed that it does not apply where, as here, the costs of relevant accommodation and care are paid by the health authority as opposed to some other public body such as the local authority.

 

9. It therefore appears that, if I allow the Claimant’s appeal, he will be entitled to payment of both the mobility and the care components, notwithstanding that the entire costs of his accommodation and care are paid by the health authority.

 

10. The question whether a residential institution which provides care is a “hospital or similar institution”, within for present purposes identical wording in other regulations, was considered by the Court of Appeal in Chief Adjudication Officer v. White (R(IS) 18/94) and  Chief Adjudication Officer v Botchett (R(IS) 10/96). In both those cases the institution was a nursing home which did have qualified nurses on the staff, and the fact that nursing care was provided led the Court in each case to hold that the institution was a “hospital or similar institution”. The most important question for me on this appeal is therefore whether the Court of Appeal’s reasoning leads to the conclusion that care by qualified nursing staff is a necessary, as opposed to merely sufficient, condition for the application of regs. 8 and 12A. Those cases do not appear to have been cited to the First-tier Tribunal; they are not referred to in its reasons.

 

11. I held an oral hearing of this appeal at which the Claimant was represented by Mr Arjun Ahluwalia of counsel, from the Free Representation Unit, and the Secretary of State was represented by Mr Tim Buley, also of counsel, instructed by the Office of the Solicitor to the Department for Work and Pensions. 

 

12. At an earlier stage of this appeal I indicated that, if I were to set aside the First-tier Tribunal’s decision, I would be minded to substitute my own decision rather than remitting the matter to a new First-tier Tribunal, and I invited the parties to provide further evidence in relation to the Claimant’s needs and the nature of the care provided at The Lodge. As a result, there is significantly more detailed evidence before me on those points than was before the First-tier Tribunal. As I have decided, for reasons explained below, to set aside the Tribunal’s decision, it is convenient to begin by setting out my findings of fact. As there is no dispute about the evidence, I can most conveniently do so by summarising and/or setting out the most important parts of it (Sections C and D below). It will be helpful to preface that with some information relating to the National Framework for NHS Continuing Healthcare.

 

B. The National Framework for NHS Continuing Healthcare

13. In R v North and East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850 the Court of Appeal had to consider the respective responsibilties of the NHS and the local authority in respect of the provision of nursing care. It was held, on analysis of the provisions in sections 1 and 3 of the National Health Service Act 1977, and section 21 of the National Assistance Act 1948, that the obligation of the NHS to provide nursing care was more extensive (and the power of a local authority therefore rather less extensive) than had previously been supposed.

 

14. In R(DLA) 2/06 a Tribunal of Commissioners summarised the effect of the Coughlan decision, and of the subsequent enactment of the Health and Social Care Act 2001, as follows:

 

“13. Prior to the Health and Social Care Act 2001, because under section 3 of the 1977 Act the Secretary of State could legitimately consider that, consistent with his long-term general duty to continue to promote a comprehensive free health service, it was not necessary to provide nursing services to a particular person, a local authority could provide such services to people to whom accommodation was provided under Part III of the 1948 Act (Coughlan). However, this was only permissible where the nursing services were merely incidental or ancillary to the provision of the accommodation and of a nature that an authority whose primary responsibility was to provide social services could be expected to provide; because, if the nursing services were key, then the Secretary of State would have been obliged to provide them as part of his 1977 Act duties, and the longstop obligations of the local authority would not have been triggered. The Secretary of State therefore had to form a tenable judgment as to whether it was necessary for him to provide such services given his duties under sections 1 and 3 of the 1977 Act. In practice, this judgment was made by a health authority in accordance with locally agreed eligibility criteria.

 

14. The Health and Social Care Act 2001 changed the position. Section 49 removed from local authorities the power to provide nursing care by a registered nurse. From [1 April 2003], all nursing care for residents of care homes has been provided by the National Health Service under the 1977 Act, whether that care be key or merely ancillary.”

 

15. Later in its decision the Tribunal of Commissioners summarised the implications of the Coughlan decision in relation to the obligations of the NHS to provide accommodation as follows:

 

“76. Perhaps because it appears not be mentioned in circulars issued by the Department of Health, it seems often to be overlooked that, where a person requires accommodation because of his or her need for nursing services, (rather than because of a need for “care and attention” to which any nursing services required are merely incidental or ancillary), it is the duty of the National Health Service to make such accommodation available under section 3 of the 1977 Act, either directly or by making arrangements under section 23 to place a person in a nursing home. That is because the implication of Coughlan, White and Botchett is that the accommodation that is required in those circumstances falls within the scope of section 3(1)(a) or (b) of the 1977 Act. A local authority has no power to provide such accommodation due to the effect of section 21(8) of the 1948 Act…….”

 

16. In evidence before me is a document entitled “the National Framework for NHS Continuing Healthcare and NHS funded Nursing Care”, published in June 2007. It sets out the principles and processes by which it will be determined whether the NHS will provide Continuing Healthcare or Nursing Care. It is stated to be based on the legislation, and on case law, including in particular the Coughlan decision. It is relevant to refer to the following passages:

 

In the glossary, “NHS Continuing Healthcare” is defined as:

 

“A complete package of ongoing care arranged and funded solely by the NHS, where it has been assessed that the individual’s primary need is a health need. It can be provided in any setting. In a person’s own home, it means that the NHS funds all the care that is required to meet their assessed health needs. In care homes, it means that the NHS also makes a contract with the care home and pays the full fees for the person’s accommodation as well as all their care.”

 

The document further states as follows:

 

“23. To assist in deciding which treatment and other health services it is appropriate for the NHS to provide under the National Health Service Act 2006, and to distinguish between those and the services which LAs may provide under section 21 of the National Assistance Act 1948, the Secretary of State has developed the concept of “a primary health need”. Where a person’s primary need is a health need, the NHS is regarded as responsible for providing all their needs, including accommodation, if that is part of the overall need, and so they are eligible for NHS Continuing Healthcare. The decision as to whether this is the case should look at the totality of the relevant needs.

 

37. NHS Continuing Healthcare may be provided by PCTs in any setting (including, but not limited to, a care home, hospice or the person’s own home). Eligibility for NHS Continuing Healthcare is therefore not determined or influenced by either the setting where the care is provided nor by the characteristics of the person who delivers the care. ….

 

42. The reasons given for a decision on eligibility should not be based on

- the setting of care,

- ………………….

- the use (or not) of NHS employed staff to provide care,

- the need for/presence of “specialist staff” in care delivery,

- ……………………………………”

 

 

C. The Claimant’s health and care needs

17. In June 2007 (while the Claimant was still living at home) a community nurse acting for the Health Authority completed what is described as an “in depth nursing needs assessment tool”. It was updated in August 2007. It assessed the severity of the Claimant’s condition, and the extent of his needs (and in particular nursing needs), in relation to 12 categories of function. The conclusion was that the Claimant needed to be supervised by at least one, and sometimes two, care staff, in relation to each of the categories, but only needed a “registered nurse” in relation to two categories. Those were “pain control” and “medical condition”, in relation to which it was explained that the Claimant was suffering pain on a daily basis due to his self-injurious behaviour, and was also prone to mouth and ear infections, and that “RN input is required for pain and infection assessment …….He has regular check ups at Waddiloves health centre to maintain these conditions….. a nurse and Dr Silva review [the Claimant’s] health and medication on a regular basis.”

 

18. In relation to the category “behaviour” (where no registered nurse was stated to be needed) the detailed description was as follows:

 

“[The Claimant] has severely challenging behaviour and may cause injury to him[self] and others. [He] typically targets his mother but has also been known to hit out and injure other care staff and service users. In day care [he] needs three staff to maintain his safety during unsettled periods. In the past 6 months there have been 8 recorded incidents at daycare requiring some form of intervention. At home [he] typically has two incidents each week when he becomes self-injurious and destructive, placing him and a support worker at risk. Being a lone worker, the support is unable to apply MAV techniques and has to maintain his own safety. August 07 update – at home [he] is displaying self-injurious and destructive behaviour on a daily basis. One support staff cannot safely manage this behaviour but two may be able to do so. In day care there have been 13 incidents since December 06 where MAV techniques have been used to restrain [the Claimant] for his protection.”

 

19. The summary at the end of the document stated as follows:

 

“[The Claimant] 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…… 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.”

 

20. There is no evidence before me as to the criteria for the levels of the Continuing Care Criteria referred to. But it was presumably on the basis of that assessment that the Health Authority agreed to fund the Claimant’s placement at The Lodge, to which he moved, as I have said, on 26 November 2007.

 

21. There are also before me further assessments carried out by the Health Authority in March and April 2009. (Although they postdate the period which is directly in issue in this appeal (i.e. the period down to 18 February 2008, the date of the Secretary of State’s decision under appeal), they are relevant to the Claimant’s condition at the material time).

 

22. First, there is what is described as a “Decision Support Tool” in relation to the “National Framework for NHS Continuing Healthcare”. It assesses the severity and nature of the Claimant’s care needs under 11 “care domains”. The Claimant’s condition was assessed as “severe” in relation to 2 categories (“behaviour” and “cognition”) “high” in relation to one category (“psychological needs”) and “moderate” in relation to one category (“communication”). In relation to “medication” the category “low” was chosen.

 

23. As regards “behaviour”, the category “severe” was stated on the assessment form to be appropriate in the case of “challenging behaviour of severity and/or frequency that poses a significant risk to self and/or others. The risk assessment identifies that the impulsive nature of the behaviour and the potential for harm to self or others requires a prompt response from skilled carers and care workers to manage the frequency, intensity or duration of the behaviour and care.” The detailed comments are similar to those in the 2007 assessment, but it is worth noting the following:

 

“[His] behaviours are triggered by noises, or if he doesn’t want to do something. [He] needs a structured and consistent approach; he needs to follow his morning and evening routine as this gives him some order. If he does start to get agitated then he will begin to pace and staff need to intervene early to avoid an escalation in his behaviour. On occasion [he] may need to be restrained by two staff until his PRN medication takes effect.”

 

24. In relation to “cognition” the comments were as follows:

 

“[He] has a severe learning disability and autistic traits. He is able to make some simple choices such as what to eat and drink, what to wear or if he would like to go out. [He] needs others to assess any basic risks and he is dependant on others to protect him from harm.”

 

25. As regards medication it was noted that the Claimant is prescribed lorazepam (a tranquilliser) and paracetamol, both to be taken on a “PRN” (as needed) basis, and risperidone (an antipsychotic, but also used to treat autism in children and young adults) on a regular twice daily basis. However, the category “low” was chosen for medication. The category “high” was stated to apply, in relation to medication, where the subject “requires administration of medication by a registered nurse or care worker specifically trained for this task, and monitoring because of potential fluctuation of the medical condition or mental state, that is usually non-problematic to manage”. The specific comments included: “[He] has not had any PRN lorazepam for about 2 months; this may be due to him being over-medicated in February and March 2009 and not needing any further medication. For this reason the level of low was chosen.”

 

26. Towards the end of the document the Claimant’s needs were summarised. The summary included the following:

 

·       [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.”

 

27. The recommendation at the end of the document was as follows:

 

“The DST [Decision Support Tool] has recommended a decision of a “primary health need” for [the Claimant] as he has achieved two incidences of “severe” in the domains of “behaviour, cognition”. [He] has also achieved one incidence of “high” in the domain of “psychological” plus one incidence of “moderate” in the domain of “communication”. …….

 

 Currently [his] behaviour is being supported by the staff at The Lodge. [He] was initially settled within the residential home but his behaviour deteriorated from October 2008 to February 2009 and during this time the staff team struggled to supervise him. [He] has a long history of challenging behaviour and because of his recent unsettled behaviour it is a recommendation of the MDT [multidisciplinary team] that [he] should continue to receive full funding for NHS Continuing Healthcare.

 

Funding to continue as this DST was part of an annual review.

 

Funded Nursing Care – [he] would be eligible for Funded Nursing Care.”

 

28. The second document dating from March/April 2009 is an assessment described as “learning disability nursing needs assessment tool” – “to support the National Framework for NHS Continuing Health Care and NHS Funded Nursing Care.” It assessed the Claimant’s need for nursing care under 13 categories. He was assessed as needing a “registered nurse” in respect of only 1 category, namely “behaviour”. It is not wholly clear from the comments on the form precisely why a registered nurse was considered to be needed, although the reason may be that the comments include that “he is currently being assessed by Dave Atkinson and the behavioural team at BDCT.” In relation to drug therapies and medication the assessment was that a registered nurse was not needed, and that medication was administered by a “trained carer” (as opposed to registered nurse).

 

29. It was also stated in that assessment (p.154) that “[the Claimant] sees the following professionals: Dr Femi, consultant psychiatrist and Dave Atkinson, behavioural nurse, Jeannie McNeill OT and Lynn Dickinson, Dentist.”

 

D. The Lodge

30. The Lodge is a care home which was registered under the Care Standards Act 2000 on 14 September 2007 (i.e. only some 2 months before the Claimant moved in). A letter of that date from the Commission for Social Inspection to the owner describes the “type of service” as “care home – care home only”, and the “number and needs of people using your service” as “learning disability (5).” It is therefore a care home for up to 5 residents.

 

31. A letter dated 22 October 2008 from The Lodge states as follows:

 

“The Lodge provides 24 hour residential care to individuals who fall   under the Autistic Spectrum and who may have other associated disorders.

 

What do we provide service users at our service?

 

·       Community based activities

·       Activities within the home

·       Trained staff team trained in de-escalation activities and physical intervention when required for challenging behaviours

·       Personal care, including bathing, dressing, assistance with meal preparation, assistance with household duties

·       An autism friendly environment, which is neutral in colour and one which does not over stimulate

·       A vehicle to enable access in the community

·       Medication administration

·       Regular medical and health care checks at local community amenities i.e. GP

 

We are registered with the Commission for Social Care Inspection as a residential care home which falls under the Learning Disability Category.

 

We do not in any way provide nursing care to the service users at The Lodge. If service users require any nursing needs, then the G.P. would arrange for a district nurse to visit, or the service users would visit them.”

 

32. The Lodge brochure includes the following:

 

“The Lodge provides a specialist home environment for people with Autistic Spectrum Disorders, Asperger’s Syndrome and complex needs, who require high levels of support in a homely environment.

 

………The staffing levels will be determined on the assessed level required for the individual, and varied depending upon individual needs ……

 

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 discussed as part of the assessment undertaken on referral to the service.”

 

33. In evidence to the FTT the Claimant’s mother said (p.62) (and I accept) that the Claimant is taken from The Lodge to a work based centre one day a week.

 

E. The legislation

National Health Service Act 2006

3(1)  The Secretary of State must provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements –

 

(a)  hospital accommodation,

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

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

(d)  …………………………………………………………………..

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

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

 

275(1)  In this Act (except where the context otherwise requires) –

 

“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” must be construed accordingly.

 

“illness” includes [any disorder or disability of the mind] and any injury or disability requiring medical or dental treatment or nursing.

 

“medical” includes surgical

[Note: the words in square brackets in the definition of “illness” were substituted, with effect from 3 November 2008, for the words “mental disorder within the meaning of the Mental Health Act 1983”]

 

 

Social Security Administration Act 1992

73(1)  Regulations may provide for adjusting benefit as defined in section 122 of the [Social Security Contributions and Benefits Act 1992] ……… which is payable to or in respect of any person, or the conditions for the receipt of that benefit, where –

 

(a)  ………………………………………. ; or

(b)  the person is, or is treated under the regulations as, undergoing medical or other treatment as an in-patient in a hospital or similar institution.”

 

191 In this Act, unless the context otherwise requires –

 

“medical treatment” means medical, surgical or rehabilitative treatment (including any course of diet or other regimen), and references to a person receiving or submitting himself to medical treatment are to be construed accordingly.”

 

Social Security (Disability Living Allowance) Regulations 1991

8. – Hospitalisation

(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 similar institution maintained or administered by the Defence Council.

 

(2)  For the purposes of paragraph (1)(a) a person shall only not be regarded as not being maintained free of charge in a hospital or similar institution during any period when his accommodation and services are provided under section 65 of the NHS Act of 1977, or section 58 of, or paragraphs 14 of Schedule 7A to, the NHS Act of 1978, or paragraph 14 of Schedule 2 to the NHS Act of 1990.

 

9. Persons in care homes

(1)  ………………….a person shall not be paid any amount in respect of a disability living allowance which is attributable to entitlement 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.

 

(2)  The specified enactments for the purposes of paragraph (1) are:

 

(a) (i) Part III of the National Assistance Act 1948;

(ii)

(iii)

(iv)

(v) the Mental Health Act 1983; or

(b) any other enactment relating to persons under disability or to young persons or to education or training.

 

(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, ……………”

 

[Note: By s.72(9) of the Social Security Contributions and Benefits Act 1992, “care home”, for the purposes of this provision, means “an establishment that provides accommodation together with nursing or personal care”; and “qualifying services” means “(a) accommodation (b) board and (c) personal care”]

 

12A.   Hospitalisation

 

(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.

 

(2) For the purposes of paragraph (1)(a) a person shall only be regarded as not being maintained free of charge in a hospital or similar institution during any period when his accommodation and services are provided under section 65 of the NHS Act of 1977, section 58 of, or paragraph 14 of Schedule 7A to, the NHS Act of 1978 or paragraph 14 of Schedule 2 to the NHS Act of 1990.

 

 

F. The parties’ submissions

34. Submissions for the Claimant

(1) The fact that there is no equivalent of reg. 9 of the 1991 Regulations in relation to the mobility component indicates that it was considered that claimants in receipt of fully funded care in an ordinary care home may still have mobility needs which are not sufficiently provided for by the home, and in respect of which they should therefore receive the mobility component. That is the case here, where the Claimant needs to be and is taken out into the community.

 

(2) The effect of the Court of Appeal’s reasoning in White and Botchett is that, unless an institution is giving treatment which requires to be administered by either a doctor or a qualified nurse, (a) it is not delivering “medical or other treatment” and (b) it is not a “hospital or similar institution” within the meaning of regs. 8A and 12.

 

(3) References in the judgment of Evershed MR in the Leamington Spa case (see below), to “nursing” and “treatment” as encompassing actions by “persons professionally trained to look after and attend to the sick”, and similar expressions in the other judgments in that case and in White and Botchett,  are references to a qualified doctor or nurse, and do not encompass a trained or skilled carer without medical or nursing qualifications.

 

(4) As The Lodge has neither doctors nor qualified nurses on the staff, it is not providing “medical or other treatment”, and is not a “hospital or similar institution.”

 

(5) Although the Claimant is in receipt of medical and nursing treatment (e.g. at his GP’s surgery), on the evidence no such treatment is provided at or by The Lodge, and therefore it is not treatment which the Claimant is undergoing “as an in-patient in a hospital or similar institution.”

 

 

35. Submissions for the Secretary of State

(1) The purpose of regulations 8 and 12A is to avoid double provision from public funds. Regs. 8 and 12A should therefore, so far as possible, be given a broad construction so as to cover any situation where a claimant’s accommodation and care in a residential institution are paid for by the NHS by way of Continuing Healthcare. Further, because reg. 9 does not apply where the cost of the accommodation or care is paid by the NHS (as opposed to e.g. a local authority), there will be an even more serious lacuna (i.e. relating not only to the mobility but also the care component) unless regs. 8 and 12A are construed as covering cases such as the present.

 

(2) There is no doubt that the Claimant is suffering from an “illness”, within the definition in s.275 of the 2006 Act, and that he is being maintained “free of charge” under that Act. The only issues are therefore whether he is receiving “medical or other treatment” while being accommodated free of charge in a “hospital or similar institution.”

 

“medical or other treatment”

(3) “Treatment”, within the meaning of that word in the definition of “hospital” in (now) s.275 of the 2006 Act, was held in the Leamington Spa case, White and Botchett to include (but was not necessarily limited to) “nursing”, in the sense of (per Sir Francis Evershed MR in Leamington) care and attention from “persons professionally trained to look after and attend to the sick”. “Nursing” in that sense need not be limited to nursing by a registered NHS nurse, but would also include the provision of care by a trained carer. Although the Court of Appeal cases and R(DLA) 2/06 focus on the provision of “nursing” by qualified nurses, that simply reflects the facts of those cases – i.e. that such nursing was in fact provided by the homes there under consideration.

 

(4) It can be inferred that the words “medical or other treatment” were deliberately wide and were intended to ensure that no treatment which could be provided under the NHS Acts would be excluded from the definition. The meaning given to “treatment” and “medical or other treatment” in the authorities is consistent with that, in that anyone who has been assessed as suitable for free accommodation by way of NHS Continuing Health Care, because they have a primary health need, will be in receipt of “medical or other treatment”. This is also consistent with the rationale behind reg. 12A, namely to avoid double provision from public funds.

 

(5) The Claimant, being in receipt of substantial care from appropriately trained and skilled care workers pursuant to an assessment under the 2006 Act that his need for accommodation derives from a primary health need, is therefore in receipt of “medical or other treatment”.

 

“hospital or similar institution”

(6) Because (see above) The Lodge provides “treatment”, within the meaning of the definition of “hospital” in the 2006 Act, it is a “hospital”.

 

(7) Even if that is wrong, the words “hospital or similar institution” in regs. 8 and 12A are plainly intended to be inclusive, in order to avoid the need for nice distinctions between hospitals and other institutions in which the sick may be accommodated, and in order to ensure that institutions in which persons are receiving support from the NHS do not fall outside the definition. From the point of view of the rationale for regs 8 and 12A, the precise nature of the institution is of no great significance. The words “or similar institution” are wide enough to cover any care home, for the following reasons:

 

(a) If the institution is providing “treatment”, it is a “hospital”. So the words “or similar institution” must be intended to cover an institution which is not providing “treatment”, within the meaning of that word in the definition of “hospital” in s.275;

 

(b) the words “or similar institution” must also be intended to cover the situation where “medical or other treatment” is provided not in the institution itself, but elsewhere. Suppose, first, that a claimant’s only need for medical treatment is for very specialised treatment from an institution which has no in-patient beds, and that he is accommodated in what is undoubtedly a “hospital”, but receives no treatment there. The wording of regs. 8 and 12A would be satisfied. If the facts are then changed so that he is accommodated not in a hospital but in an ordinary care home with no medical or nursing staff, he ought similarly to be within reg. 8 and 12A. He would be because the care home would be a “similar institution.” The rationale behind regs. 8 and 12A is satisfied if (i) the claimant is maintained free of charge by the NHS and (ii) he is in receipt of medical or other treatment. In the present case the Claimant is on the evidence in receipt of some treatment which undoubtedly is medical treatment, such as input from a behavioural specialist, a psychiatrist and an occupational therapist. It does not matter whether the treatment is provided by or at The Lodge.

 

36. Mr Buley contends that the practical implications of his above submissions on the facts of this case are as follows:

 

(a) If his submission as to the broad meaning of “treatment” (i.e. that it includes care provided by trained care staff to a person suffering from illness) is accepted, The Lodge is a “hospital” and regs. 8 and 12A apply, and I should either dismiss the appeal or substitute a decision to the same effect as that made by the First-tier Tribunal.

 

(b) If, alternatively, his submissions that (i) The Lodge is a “similar institution”, and (ii) that it is sufficient that medical treatment is provided elsewhere, are accepted, again regs. 8 and 12A apply, with the same consequence.

 

(c) if those submissions are all rejected, it is unclear on the evidence whether sufficient “medical or other treatment” (within a narrow view of those words) are being provided at The Lodge, and I should invite further evidence or remit the matter to a fresh First-tier Tribunal.

 

G. The issues

37. It seems to me that the parties’ submissions, considered in the light of the evidence, give rise to the following issues:

(1) Is the fact that the Claimant’s accommodation and care in The Lodge is paid for by the Health Authority, and that The Lodge employs appropriately experienced and skilled carers, sufficient to cause regs 8 and 12A to apply, notwithstanding that The Lodge has neither medically qualified nor nursing staff?

 

(2) If not, do regs 8 and 12A apply:

 

(a) on the ground the Claimant receives treatment from doctors, nurses and other healthcare professionals elsewhere than at the Lodge?

 

(b) if  the Claimant receives treatment from doctors, nurses or other healthcare professionals at the The Lodge, but who are not employed or engaged by the Lodge?

 

 

H. The Court of Appeal decisions

 

Minister of health v. Home for Incurables at Leamington Spa [1954] 1 Ch. 530

38. The issue was whether a home established for the reception of persons suffering from certain incurable diseases was a “hospital” within the meaning of section 79(1) of the National Health Service Act 1946, and so on nationalisation vested in the Minister of Health under s.6 of that Act. The definitions of “hospital” and “illness” in the 1946 Act were in effectively the same terms as those in the subsequent National Health Service Acts (and now in s.275 of the 2006 Act).

 

39. The constitution of the home required that no case should be admitted unless it required “medical supervision and nursing”. The staff of the home included 48 full-time and 29 part-time nurses, and there was a visiting physician and visiting surgeon who visited the home regularly on alternate days. There were also “domestic staff”.

 

40. The arbitrator had found that, the diseases of the inmates being necessarily incurable, the home did not provide “treatment” designed to cure them. There was, however, “palliative treatment” being administered to about one third of them by the nurses (which was understood to mean treatment in the nature of physiotherapy, massage etc, designed to alleviate suffering or arrest the disease). Medical attention and “treatment” was also available and administered in the case of inmates who might from time to time suffer additionally from casual illnesses e.g flu.

 

41. The arbitrator had decided that the home was not an institution for the treatment of persons suffering from an illness because

 

“the main purpose of the home was to provide the patients with the care and attention they required in pleasant surroundings with the necessary nursing and adequate medical supervision. The provision of palliative medical treatment, treatment for intercurrent complaints and physiotherapy were, of course, objects of the home, but I hold that they were subsidiary to its main purpose and could not be regarded as either independent or co-ordinate purposes.”

 

42. The decision of the arbitrator was reversed (Evershed MR and Romer LJ; Denning LJ dissenting). Evershed MR considered (p.544) that the three members of the Court were in agreement as to the meaning of “treatment” in the definition of “hospital” in the 1946 Act, and that the reason for the difference in their views as to the correct outcome lay in whether the facts found by the arbitrator fell within that meaning.

 

43. Evershed MR considered that the arbitrator had incorrectly confined the meaning of the word “treatment” “so as to exclude nursing or, at least, so much of nursing as has been called “routine nursing” as distinct from nursing which is in form and fact medical treatment.” Evershed MR said (p.541):

 

“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 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. 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.”

 

44. However, it is plain from other passages in Evershed MR’s judgment that he considered that if what a qualified nurse was giving was no more than care or attention (as opposed to the exercise of professional skill), it did not amount to “nursing”, and therefore did not amount to “treatment”, within the meaning of the definition of “hospital”.

 

“…… an inmate cannot be said to be receiving treatment from persons professionally qualified to tend the sick because those persons are called, or call themselves, nurses.” (p.546)

 

45. Romer LJ said:

 

“…… I am of opinion that Parliament had three forms of treatment in contemplation under the Act, that is to say, medical, dental and nursing, and that the last has an independent existence of its own, although in the considerable majority of cases it would co-exist with one of the other two.” (p.550)

 

………………………………………………………………………………

 

It is true that “nursing” means more than the mere “care” of persons suffering from illness (see sections 24 and 28 of the Act) and, presumably, refers to nursing of a professional character; but that the nursing in the home falls within this category is shown, in my opinion, by the fact that the staff consists of 48 full-time and 29 part-time nurses under the general control of a matron, and under the supervision of medical practitioners, ……….. If the arbitrator had found that all that the patients required was care and attention, and that that was substantially all they got, the position would have been very different.” (p.551)

 

46. Denning LJ said (p.547):

 

“The key to the legal position lies in the fact that the Act draws a sharp distinction between “treatment” and “care”. (See sections 24 and 28 of the Act). …… 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, 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 mental 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.”

 

 

Chief Adjudication Officer v. White  (R(IS) 18/94)

47. The issue was whether the claimant was entitled to income support. He was not so entitled if he fell within the wording in reg. 2(2) of the Social Security (Hospital In-Patients) Regulations 1975, was therefore in substance the same as that in issue in the present case).

 

48. The claimant was one of 14 elderly and mentally infirm patients who had been transferred from an NHS hospital to a privately owned nursing home (Forest Lodge) which was registered under the Registered Homes Act 1984 as both a nursing home and a residential care home.

 

49. The evidence was that Forest Lodge had 15 beds for residential patients and 54 nursing beds. The patient care manager was a registered general nurse and mental nurse for mental handicap. He had with him a deputy registered mental nurse plus 2.7 registered mental nurses, one state registered nurse and two enrolled nurses, and approximately 20 to 24 care assistants. The care assistants were under a registered nurse in charge, and worked in a particular part of the building.

 

50. The Court of Appeal held that the claimants were receiving “medical or other treatment” in a “hospital or similar institution.” Ralph Gibson LJ, who delivered the only substantive judgment, said that he in general agreed with the submissions of counsel for the Secretary of State, which he had earlier summarised, and which included the following:

 

(i) The meaning of the words “hospital or similar institution” was to be derived from the definitions of “hospital” and “illness” in s.128 of the National Health Service Act 1977;

 

(ii) The claimant was sent to Forest Lodge because he suffered an “illness” which required treatment and in particular nursing. Since Forest Lodge was shown to be an institution for the reception and treatment of persons suffering from mental disorder requiring nursing, it was a “hospital or similar institution”.

 

(iii) Forest Lodge was a registered nursing home under the 1984 Act whereby a “Mental Nursing Home” was defined as:

 

“Any premises used or intended to be used for the reception of, and the provision of nursing or other medical treatment (including care, habilitation and rehabilitation under medical supervision) for one or more mentally disordered patients …”

 

(iv) Accordingly, the tribunal had erred in law “by failing to direct their attention to the question whether Forest Lodge was a place where the skilled services of psychiatric nurses was directed to the care and treatment of mentally ill patients.

 

51. Having referred to passages in the Leamington case, Ralph Gibson LJ went on to say (p.492):

 

“Nor do I accept that the question whether an institution is a hospital, for the purposes of reg. 2(2), is to be decided by reference to whether the dominant purpose is medical treatment. I acknowledge that if the provision of nursing by professionally trained nurses 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 the 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. I would hold that Forest Lodge was on the facts found by the tribunal a hospital within the meaning of regulation 2(2).”

 

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

52. The issue was again whether the claimant was disentitled to income support because she fell within the provisions in regulation 2(2) of the Social Security (Hospital In-Patients) Regulations 1975. Evans LJ, with whom the other two members of the Court of Appeal agreed, described the claimant as

 

“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.” (p.503)

 

53. The home was registered under the Registered Homes Act 1984 as a nursing home. The home had formerly been a unit of a hospital run by the Area Health Authority and had been transferred to a 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. Of the 16 full time members of nursing staff, the equivalent of 6 were trained, the remainder being untrained. Any necessary drugs appear to have been prescribed by the residents’ GP, but to have been administered by the nursing staff.

 

54. It was contended on behalf of the claimant that because the residents were not mentally sick, they received care, rather than treatment which they did not need, and it could not be said that they received “medical or other treatment” or that Coombe End was a “similar institution” to a hospital.

 

55. The Court of Appeal rejected that contention. Evans LJ said (p.506):

 

“The judgment in White’s case ….. is binding authority that “hospital” in regulation 2(2) should be construed as defined in section 128 of the National Health Service Act 1977.

 

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.”

 

………………………………………………………………………

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). They 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.”

 

56. Evans LJ went on to say that his conclusion was supported by the majority judgments in the Leamington case:

 

“……the majority judgments ……. 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.” (p.508)

 

 

I. R(DLA) 2/06

57. In para. 64 of this decision the Tribunal of Social Security Commissioners summarised the effect of White and Botchett as follows:

 

“64. ………. it is clear that a nursing home can amount to a “hospital” for the purposes of regulation 8 and that a person who has severe learning difficulties and is consequently receiving nursing care is “undergoing medical or other treatment” for the purposes of that regulation. The terms have to be construed in a way that is consistent with the definitions in section 128 of the 1977 Act. It is also common ground before us that the words “under the NHS Act of 1977” in paragraph 1(a), qualify the words “maintained free of charge while undergoing medical or other treatment as a inpatient” rather than describing the “hospital or similar institution.”

 

58. I refer also to the following passages in that decision:

 

“70. In our judgment, the legislation does not contemplate accommodation costs being separated from nursing costs. Given the definition of “hospital” in the 1977 Act, being maintained in a hospital necessarily involves being provided with medical or nursing care, just as the provision of accommodation under Part III of the 1948 Act necessarily involves the provision of the “care and attention” the person’s need for which justifies the provision of the accommodation. It is only when a need for treatment (including nursing services) or other care requires the claimant to be in special accommodation that regulations 8 and 9 bite.

 

75. Regulation 8 does not apply if the amount of nursing care provided is consistent with the accommodation being provided under Part III of the 1948 Act. It does however apply where the amount of nursing care provided implies a duty on a health authority to make accommodation available under section 3(1)(a) or (b) of the 1977 Act.

 

78. Of course, if no care is provided by the National Health Service or if the only care is provided at the claimant’s home, regulation 8 does not bite because the claimant is not “maintained …… in a hospital or similar institution under the NHS Act of 1977; but, if some nursing services are provided by the National Health Service to a claimant in a care home and if the claimant’s nursing needs are more than merely incidental and ancillary to other care needs, regulation 8 does bite. Part of the rationale is presumably ……….. the avoidance of double provision from public funds.”

 

J. Analysis and conclusions

(1) Statutory context and rationale

59. As noted above, both parties rely on the rationale for regs. 8 and 12A, and on the statutory context, in support of their submissions.

 

60. Regulation 8 (or its predecessor equivalent) has been present since attendance allowance (the forerunner of the care component of DLA) was introduced in 1970. However, reg. 12A was not enacted until 1996. Between the introduction, in 1976, of mobility allowance (the forerunner of the mobility component of DLA) and the enactment of reg. 12A in 1996, mobility allowance/the mobility component of DLA were therefore payable even to a claimant in hospital, provided only (see now s.73(8) of the 1992 Act) that his condition permitted him from time to time to benefit from enhanced facilities for locomotion.

 

61. Regs 8 and 12A were made pursuant to enabling legislation, the equivalent of which has been a feature of social security legislation since the creation of the National Health Service, permitting the making of regulations in effect excluding entitlement to or providing for suspension of payment of a very wide range of social security benefits while a claimant is being maintained at public expense while an in-patient in hospital: see, in particular, sections 82(6)(b) and 85(1)(b) of the Social Security Act 1975, under which the 1975 Regulations considered in White and Botchett were stated to have been made. Regulation 12A was inserted, and regulation 8 now takes effect as if made, under s.73(1) of the Social Security Administration Act 1992, which was part of the 1992 consolidating legislation. (See also s.113(2) of the Social Security Contributions and Benefits Act 1992, which provides for suspension of payment). The particular wording “medical or other treatment as an in-patient in a hospital or similar institution” seems to have been in use from the outset (see, for example, reg 1(2) of the National Insurance (Hospital In-Patients) Regulations 1949, considered in the early cases R(S) 4/53 and R(S) 2/54). It is, I think, worth noting that s.73(1) of the Social Security Administration Act 1992 authorises the making of regulations providing for the adjustment of receipt of benefit where the claimant “is, or is treated under the regulations as, undergoing medical or other treatment as an in-patient in a hospital or similar institution” (my emphasis). The section (and its predecessor) would therefore appear to have permitted the secondary legislation to give those words a meaning different from that which it would have had in the primary legislation, if construed alone.

 

62. Regulation 9 of the 1991 Regulations, which relates to the care component only, was made under the more specific authority of the predecessor of s.72(8) of the Social Security Contributions and Benefits Act 1992, relating solely to the care component of DLA.

 

63. As originally enacted, reg. 9 would appear to have been triggered by a claimant’s accommodation in a care home being funded wholly or partly by the NHS, as well as the more common situation where it was funded by the local authority under the National Assistance Act 1948. However, by an amendment made with effect from 2002 reg. 9 is no longer triggered by the fact that the costs of “qualifying services” (as now defined in s.72(10) of the Social Security Contributions and Benefits Act 1992) are borne by the NHS: reg. 9(6)(f). If, therefore, a claimant’s accommodation in a care home is funded by the local authority under Part III of the National Assistance Act 1948, he will be disentitled by reg. 9 to payment of the care component (but not the mobility component) of DLA. If, however, a claimant’s accommodation in a care home is funded by the NHS, he will not be disentitled to payment of either component of DLA unless he falls within the “hospitalisation” provisions in regs. 8 and 12A. That fact is relied upon by Mr Buley as requiring as broad a construction as possible of the language of reg. 8 (and therefore the same language in reg. 12A). He submits that unless those provisions are construed as covering any situation where a person is accommodated free of charge in a care home at the expense of the NHS, by way of NHS Continuing Healthcare, there will be a serious lacuna in the legislation, allowing such a claimant to require payment of not only the mobility but also the care component.

 

64. However, I do not think that the amendment made to reg. 9 in 2002 can have altered the meaning which the words “medical or other treatment” and “a hospital or similar institution”, in regs 8 and 12A, previously had. The fact that the lacuna, if it is one, appears to have been made much more significant by the amendment made in 2002 is in my judgment therefore not something which Mr Buley can pray in aid.

 

65. Does one gain any assistance as to the precise intended scope of regs. 8 and 12A by considering why there is no equivalent of reg. 9 in relation to the mobility component? Why is there a difference, as regards the mobility component, as between the position where the claimant is funded by the NHS as an in-patient in hospital, and where he is funded by the local authority in a care home? As noted above, this difference is something on which Mr Ahluwalia relies, on behalf of the Claimant. He submits that, unlike most claimants who are in a hospital, a claimant in a care home may well have mobility needs, and that this is so in the Claimant’s case, because he needs to be and is taken out into the community, for example by his parents when he is taken on holiday and at other times.

 

66. However, I do not think that these considerations can provide any assistance as to the correct construction of reg. 12A, for a number of related reasons. First, reg. 12A is in the same terms as reg. 8, relating to the care component, and in any event was not enacted until 1996. One therefore gains no assistance, in relation to the  construction of reg. 12A, by seeking to ascertain the rationale for providing that the mobility component is not payable to a person in hospital. The wording in reg. 12A must have the same meaning as that in reg. 8. Secondly, it was recognised, at the time of the enactment of reg. 12A, that even hospital in-patients might well continue to have mobility needs in respect of which receipt of the mobility component would assist. The potential existence of such needs formed the basis of an attempted but unsuccessful attack on the validity of reg. 12A in R v Secretary of State for Social Security, Ex parte Perry [1998] EWCA Civ 1117. The Court of Appeal, in holding the amending regulation valid, referred to the following comment in para. 23 of the Government’s statement in response to the report of the Social Security Advisory Committee (Cmnd. 3233):

 

“Whilst the Government does not dispute the fact that some hospital patients may continue to have mobility needs it is not persuaded that, where they occur, these needs should be met from the Social Security budget.”

 

67. In para. 43 of that response the following was stated:

 

“The Government believes that these regulations simplify the benefit by aligning the rules for the two components. They also believe that the proposals are justified because disability living allowance is an extra costs benefit and people tend to have few relevant extra costs whilst they receive free in-patient treatment from the NHS. The intention is to ensure that the Social Security budget is used in the most appropriate way and that benefits are focused on those people in the most need of financial help.”

 

68. The broad intention behind provisions such as regs. 8 and 12A is in my judgment something which Mr Buley is entitled to rely upon. The broad rationale (as noted in, for example, para. 78 of R(DLA) 2/06)) is that there should not be double provision from public funds. (Indeed, s.73 of the Social Security Administration Act, 1992, under which reg. 12A was stated in the amending regulation to have been made, is headed “overlapping benefits”). Viewed from that perspective, it is difficult to see any convincing reason why, where a claimant’s health needs are considered to be such that his accommodation and care in a care home should be funded by the NHS, it should matter whether that health need requires nursing care in the home, as opposed to care from skilled carers without nursing or other medical qualifications. In either case his full accommodation and care costs are paid by the NHS.

 

69. However, the answers to the issues set out in Section G above must of course be determined by construing the statutory wording, having regard in particular to the Court of Appeal authorities.

 

 

(2) “medical or other treatment as an in-patient in a hospital or similar institution”

 

(i) Does care from carers who are appropriately skilled but are without medical, nursing or other healthcare qualifications amount to “treatment”?

70. In each of the three Court of Appeal cases the institution in question was staffed by at least some nurses, and it was that factor which in each case resulted in the Court holding that the institution was a “hospital” (or a “hospital or similar institution” in the White and Botchett cases). In none of the cases did the Court need actually to decide whether skilled care given by persons other than doctors or nurses could amount to “treatment”.

 

71. White and Botchett establish that the meaning of the word “hospital” in regs. 8 and 12A is governed by the definition of that word in what is now s. 275 of the 2006 Act. (The provision under consideration in those cases was of course not regs. 8 or 12A of the 1991 Regulations, but the identical wording in reg. 2(2) of the Social Security (Hospital In-Patients) Regulations 1975).

 

72. The definition of “hospital” in s.275 leads to what Evans LJ in Botchett referred to as “a series of interlocking statutory definitions” in s.275, which were held in that case and in White to be of further relevance to the construction of reg. 2(2) of the 1975 Regulations. 

 

73. It is in my view clear from the Court of Appeal authorities that the expressions “medical or other treatment” and “hospital or other institution” must be regarded as closely related, by reason of the definitions in (now) s.275 of the 2006 Act, and in particular the fact that the definition of “hospital” uses the word “treatment”, which is itself also to be found in the definition of “illness”. I turn to examine this relationship in more detail.

 

74. It may help if one incorporates the definitions of “hospital” and “illness” in s.275 of the 2006 Act into regs. 8 and 12A. The result is as follows (my emphasis):

 

“..... it shall be a condition for the receipt of DLA  .... that  he is not maintained free of charge while undergoing medical or other treatment as an in-patient in [(a) any institution for the reception and treatment of persons suffering from any disorder or disability of the mind and any injury or disability requiring medical or dental treatment or nursing or (b) any maternity home or (c) any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation] or any institution similar to (a), (b) or (c) under the NHS Act of 1977 …..”

 

75. It is common ground that the Claimant is suffering from “illness”, as defined in s.275, in that he is suffering from a “disorder or disability of the mind”. (Those words were in fact substituted in s.275 only with effect from 3 November 2008, i.e. after the date of the decision under appeal in this case. The previous words were “mental disorder within the meaning of the Mental Health Act 1983”. It is equally clear that the Claimant fell within those words).

 

76. Given that the word “hospital” in regs. 8 and 12A incorporates the s.275 definition, which uses the word “treatment”, it would in my judgment be odd if the word “treatment”, in the s.275 definition of “hospital”, means something different from what it means in the expression “medical or other treatment” regs. 8 and 12A. That was in my judgment the view of Evans LJ in Botchett, as appears from the important passage which is set out again in para.  82  below.

 

77. The question is then as to the meaning of “treatment” in the s.275 definition of “hospital”.

 

78. In Leamington Evershed MR and Romer LJ were of the view that “treatment” in the (now) s.275 definition of “hospital” meant the “medical or dental treatment or nursing” referred to in the definition of “illness”: see the passages from their judgments which are set out in paras. 43 and 45 above. Denning LJ appears to have been of the same view (see the passage set out in para. 46 above), although less clearly so.

 

79. However, the patients in Leamington appear to have suffered primarily from physical illness. The definition of “illness” in s.275 appears to draw a distinction between physical and mental illness or disability. As regards health problems not falling within the words “disorder or disability of the mind”, something will only be an “illness” if it is an “injury or disability requiring medical or dental treatment or nursing.” In the Leamington case Evershed MR regarded “medical treatment” as meaning that “the patient is looked after and attended to by a doctor” (p. 541), and possibly such part of nursing “as is in form and fact medical treatment” (p.540). A nurse giving treatment such as dressing a wound, and putting in or removing stitches might presumably fall within the words “medical treatment”.

 

80. However, as regards mental disability or disorder, the definition of “illness” does not in terms involve “medical treatment” or “nursing” being required. The words “requiring medical or dental treatment or nursing” appear to qualify only the words “any injury or disability” and not the words “any disorder or disability of the mind.” If, as in the present case (and as in Botchett), the residents of the institution are suffering from a disorder or disability of the mind, the essential requirement, if the institution is to be a “hospital”, is then simply that the institution is for the “treatment” of that disorder or disability.

 

81. However, it would in my view be strange if the nature of the “treatment” which can qualify an institution as a “hospital” in the case of persons suffering from a physical illness (i.e. in effect the “medical or dental treatment or nursing” referred to in the definition of “illness”) was different from the nature of the “treatment” which will qualify it as a hospital in the case of persons suffering from mental disorder. Indeed, Mr Buley did not argue that “treatment” has some different or wider meaning in relation to mental disorder.

 

82. This all suggests strongly that, whether mental disorder or physical illness is in issue, the “medical or other treatment” to which regs. 8 and 12A refer has the same meaning as the “medical or dental treatment or nursing” in the definition of “illness” in s.275. Indeed, that was in my judgment the view of Evans LJ in Botchett. I set out again the (in my view) important passage in his judgment (at p.507):

 

“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). They 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”.

 

83. In short, in my judgment the reasoning in the Court of Appeal authorities leads strongly to the conclusion that (i) a claimant is only in receipt “medical or other treatment” and (ii) an institution is only a “hospital or similar institution” if the claimant is provided at the institution with the “medical or dental treatment or nursing” referred to in the definition of “illness” in s.275 of the 2006 Act.

 

84. I was not referred by the parties to the fact that s.191 of the Social Security Administration Act 1992 contains a definition of “medical treatment”. As noted above, reg. 12A was made under that Act, and reg. 8 was originally made under the Social Security Act 1975 and now takes effect as if made under the consolidating 1992 Act (see s.17(2)(b) of the Interpretation Act 1978). By s.11 of the 1978 Act, expressions used in subordinate legislation have, unless the contrary intention appears, the meaning which they bear in the enabling Act. However, it does not seem to me that the definition in s.191 of the 1992 Act (see Section E above) really adds anything. It seems designed to refer to the actual phrase “medical treatment” in, for example, s.9 of the 1992 Act.

 

85. In addition, the authorities suggest that “nursing” (in the definition of “illness”, and therefore “hospital”) and, more broadly, “treatment” in the various provisions, do not extend beyond treatment or care by those with “professional” training. Evershed MR referred in Leamington (at p.541) to “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.” Romer LJ (at p.551) said that “nursing” means more than the mere “care” of persons suffering from illness (see sections 24 and 28 of the [1946] Act) and, presumably, refers to nursing of a professional character. Denning LJ (at p.547) referred to “the exercise of professional skill”.

 

86. Mr Buley submits that those references to “professional skill” and such like are apt to cover the exercise of skill by trained carers without a medical or nursing qualification. However, in my judgment the word “professional” was being used in the narrow sense of the medical or nursing professions, and possibly such other allied professions (e.g. occupational therapy, physiotherapy etc.) as are generally regarded as healthcare professions. I do not think that the members of the Court of Appeal can have been using the word “professional” in its wider meaning of pertaining to an occupation carried on for gain. I do not think that they can have been including the exercise of such skill as may be acquired or required by professional carers without a medical or nursing qualification. That is clear when one bears in mind that the argument which was being made to the Court in the Leamington case was that even the trained nurses were not giving “treatment”, because all that was needed was care and attention. The members of the Court were at one in considering that nursing did involve “treatment” in so far as it involved the application of a nurse’s professional skill. Indeed, Evershed MR went so far as to say (at p.546) that “an inmate cannot be said to be receiving treatment from persons professionally qualified to tend the sick because those persons are called, or call themselves, nurses.” (The members of the Court differed, however, as to whether sufficient nursing of that nature was taking place in the Home for Incurables there in question).

 

87. Botchett in my view makes the point more clearly because it was a case where the view of Evans LJ was that the residents of the home fell within the definition of “illness” only because they satisfied the first part of the definition in the (then) 1977 Act – i.e. “mental disorder within the meaning of the Mental Health Act 1983”: “none of them is mentally ill in the sense that he or she needs or receives treatment for mental illness” (p.503). The Court’s view was 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.” It is plain, from Evans LJ’s earlier reference to “skilled but domestic” care, that what he regarded as important, in relation to the meaning of “treatment”, was not whether the person giving the care and attention was “skilled”, but whether he or she was exercising the professional care and skill possessed by a qualified nurse. I also note the acknowledgment by Ralph Gibson LJ in White 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.”

 

88. Mr Buley submitted that “nursing” and “treatment” cannot be confined to care and skill exercised by doctors and nurses, but must extend to, for example, occupational therapists. I would agree that there are certain allied health care professions, such as physiotherapy and occupational therapy, to which “treatment” must extend. The expression “health care professional” has, I believe, a broadly accepted meaning. I note that it is used in s.91 of the 2006 Act itself to mean “a person who is a member of a profession regulated by a body mentioned in section 35(3) of the National Health Service Reform and Health Care Professions Act 2002”. I would think that treatment by a health care professional falls squarely within the words “medical treatment”, particularly where the patient is referred to the health care professional by a doctor or hospital. I note that community nurse who completed the “nursing needs assessment tool” in respect of the Claimant in about June 2007 drew the distinction between trained support staff and healthcare professionals: “In day care he receives intensive support from specially trained staff under the supervision of a healthcare professional ....”.

 

89. If the meaning of “medical or other treatment” were capable of extending to care and attention provided by skilled carers, then it seems to me that virtually every residential home catering for persons with substantial disability would (i) be delivering “medical or other treatment” and (ii) be a “hospital or similar institution”. Some at least of the carers in any such institution must surely have acquired professional (using that word in its broad sense) skill, in the sense that they are substantially better at delivering the care than someone not in that occupation is likely to be. (Many of them presumably have qualifications (i.e. NVQs) such as those possessed by some of the staff at The Lodge). That result might not matter for social security purposes, in that it is only where at least some of the expense of the accommodation or care is paid for by the health authority that regulations 8 or 12A of the 1991 Regulations, or similar provisions relating to other benefits, can bite. But it would surely extend the meaning of “medical or other treatment” and “hospital or similar institution” way beyond what can have actually been intended.

 

90. Indeed, while Mr Buley did contend that every care home is a “hospital or similar institution”, he accepted, as I understood it, that not every care home delivers “medical or other treatment”. It cannot be the case that a claimant is in receipt of “medical or other treatment” simply because the health authority has accepted a responsibility for paying for his accommodation and care because his primary need is considered to be a health need. The criteria which the Health Authority must apply in determining whether it should fund a claimant’s accommodation and care in a care home are not the same as, and therefore cannot be determinative of, the issue whether the claimant is undergoing “medical or other treatment as an in-patient in a hospital or similar institution.” Under s.3 of the 2006 Act the Secretary of State (for Health) is obliged to provide not only medical and nursing services, but also (s.3(1)(e)) “such other services or facilities for …… the care of persons suffering from illness ….. as he considers are appropriate as part of the health service”.

 

91. It is of course true that in none of the three cases did the Court of Appeal have  before it a situation where the claimant had health needs sufficiently severe to mean that the health authority had accepted responsibility for the costs of his accommodation and care, but where it had also taken the view that the necessary care could be delivered in an institution staffed solely by skilled carers without a medical or nursing qualification. The fact that there were qualified nurses on the staff meant that the Court did not need to go further than was necessary to explain why the patients in those cases were in receipt of “nursing”, and therefore “treatment”. However, for the reasons which I have set out above, the reasoning in those cases in my view very strongly implies that care and attention by skilled carers without healthcare qualifications does not amount to “treatment”, within the meaning of either the definition of “hospital” in the 2006 Act, or the words “medical or other treatment” in regs 8 and 12A.

 

92. I therefore reject Mr Buley’s contention that “medical or other treatment” extends to the exercise of care and skill by trained carers with no medical or nursing qualification. If the meanings of “medical or other treatment” and “hospital or similar institution” are to be extended to have the effect for which the Secretary of State contends, as would appear to be entirely appropriate if regard is had to the rationale behind the provisions (see para. 68 above), it seems to me that, in the present state of the authorities, this must be done by legislation.

 

(ii) The significance of medical treatment other than at the care home

93. I do not accept Mr Buley’s submission (see para. 35(7) above) that the words “or similar institution” are capable of covering an ordinary care home which provides no “treatment”. First, I reject his submission that it is sufficient that the claimant is receiving medical or other treatment elsewhere than in the care home. In my judgment it is clear that the words “maintained free of charge while undergoing medical or other treatment as an in-patient ... in a hospital or similar institution ...” mean that at least some “treatment” is received in the institution in which the Claimant is an “in-patient”. If the intention had been that it was sufficient that the Claimant was (a) being maintained free of charge and (b) in receipt of medical or other treatment pursuant to the National Health Service Acts, then the words “as an in-patient in a hospital or similar institution” would presumably have been omitted.

 

94. Secondly, I acknowledge the logic of Mr Buley’s submission that, since under the definition in s.275 an institution which provides “treatment” is a hospital, the words “or other institution” must cover something wider than a hospital. However, I do not accept that this shows that an ordinary care home not providing medical or nursing treatment was intended to be included. I accept Mr Ahluwalia’s submission that the likely explanation for the words “or other institution” is that they were inserted to cover an institution which does provide nursing but which would not in ordinary parlance be regarded as a “hospital”, such as, for example, a privately owned nursing home or hospice. They are clearly not generally regarded as “hospitals”. Thus, even though the logic of Evans LJ’s reasoning in Botchett was that the home (registered as a nursing home) in that case was a “hospital” within the NHS Act definition, Evans LJ recorded that it had been agreed that it was not a “hospital”, and his conclusion was that it was a “similar institution” (p.507).

 

95. The fact that in the present case the Claimant was undoubtedly receiving some medical treatment outside The Lodge – i.e. from his GP, and from other healthcare professionals (see paras. 15 and 28 above) – is therefore in my judgment not sufficient to bring him within regs 8 and 12A.

 

(iii) The significance of medical treatment at the care home delivered by healthcare professionals not employed or engaged by the home.

96. The only remaining issue is then whether there was sufficient treatment from healthcare professionals being given actually at and (if necessary) under the auspices of Moorlands Lodge to render it a “hospital or similar institution”. Mr Buley submits that the evidence as to this is at present insufficiently complete for me to be able to substitute my own decision on this point. The only evidence that there may be some treatment at The Lodge from healthcare professionals is (i) the statement in the letter of 22 October 2008 that “if service users require any nursing needs, then the GP would arrange for a district nurse to visit, or the service users would visit them” and (ii)(possibly) the statement in the The Lodge brochure (p.84) that “the home has access to a wide range of specialist staff and we are able to access GP services”.

 

97. Mr Ahluwalia submits that treatment by healthcare professionals not engaged by The Lodge would not suffice because it would not be provided by The Lodge. I am not sure that that is necessarily a requirement of regs. 8 and 12A. The Health Authority’s assessment that the Claimant’s primary need is a health need, and that it should therefore pay for his accommodation and care, appears to have been reached not only on the basis of his need for intensive care and supervision, but also on the basis that he was receiving what was undoubtedly medical treatment (“input from the Behavioural Management Team, consultant psychiatrist and other members of the clinical liaison team including Occupational Therapy” – see para. 15 above). I think that if significant amounts of medical treatment are provided to him on the premises by visiting healthcare professionals, it may be right to say that he is residing at The Lodge at least in part for the purpose of receiving medical treatment, and therefore that The Lodge is an institution “for the treatment” of the Claimant, and so is a “hospital”, notwithstanding that the professionals are not engaged by the home. I prefer not to decide this point in the absence of more detailed evidence of what was actually happening at the material time.

 

98. It is not clear, from the authorities considered above, what degree of medical treatment or nursing must be provided if a home is to be a “similar institution” to a hospital. Support can be found in those authorities for either of two possible tests: (i) that the medical treatment or nursing must be the main purpose of the institution. If the main purpose of the institution is only to take care of the occupants, and to make life more comfortable for them, and any medical treatment or nursing is merely ancillary to that main purpose, it is not a “hospital or similar institution” (see, especially, the Leamington Spa case [1954] 1 Ch 530; and paras. 78 and 79 of R(DLA) 2/06); (ii) that it is sufficient that medical treatment or nursing is provided to more than a minimal extent (see White at p.492).

 

99. Even on the footing that the latter is the test, I doubt whether attendance by the GP, or other healthcare professionals, on an occasional and ad hoc basis, can render a care home a “hospital or similar institution”. There must be something more substantial and regular than that.  I think that the key may be that the definition of “hospital” in s.275 requires that the institution be for the treatment of illness. It must be possible at least to say that one of its purposes is the treatment of illness.  The evidence before me suggests that such medical treatment or nursing as the Claimant does receive is normally received elsewhere than at The Lodge.

 

100. I have considered a related possibility, which I do not think was really argued by Mr Buley. This is that some of the care which the staff at The Lodge deliver is “medical treatment” because it is directed and sufficiently supervised by a doctor (or possibly other healthcare professional). For example, the care staff administer medication prescribed by a doctor, some of it on a PRN (as needed) basis. In addition, it appears that, in determining how best to anticipate and deal with the Claimant’s challenging behaviour, they are to some extent following recommendations made by the psychiatrist or behavioural nurse: it was reported in the April 2009 assessment that among the issues raised by the Claimant’s parents at the assessment meeting were the need to “implement the recommendations of the behavioural team” (p.137).

 

101. There are indications in other statutory provisions that care from a “lay” person which is directly supervised by a doctor or nurse may properly be regarded as “medical treatment”. For example, I note that the definition (cited in White) of “Mental Nursing Home” in the Registered Homes Act 1984 was:

 

“any premises used or intended to be used for the reception of, and the provision of nursing or other medical treatment (including care, habilitation and rehabilitation under medical supervision) for one or more mentally disordered patients.”

 

102. I very much doubt whether there is a sufficiently close or extensive degree of supervision by doctors or other healthcare professionals in this case to bring that sort of principle into play. As regards the particular issue of medication, if one takes first of all medication which is prescribed to be taken regularly (e.g. the risperidone, taken twice a day, in the present case), that is in a sense “medical treatment” which the Claimant is “undergoing”. But it seems to me that he is not, merely by virtue of that treatment, doing so “as an in-patient in a hospital or similar institution”. The treatment is in substance by the prescribing doctor. The carers do no more than carry out his instructions, as the Claimant would do for himself if he was not disabled. In my judgment the same must probably apply to the medication (aspirin and tranquillisers) which is prescribed to be taken on a PRN basis. The care staff, in administering it, are again doing no more than following the prescribing doctor’s instructions, notwithstanding that the PRN medication involves the exercise of a degree of judgment as to whether and when it should be administered. The care staff are not acting as a substitute for a healthcare professional, but are exercising a judgment of a type which a non-disabled patient would commonly exercise for himself. Indeed, Mr Buley did not, as I understood it, place any particular reliance on the fact that the care staff administer medication.

 

103. However, I am reluctant finally to decide, at any rate on the present state of the evidence, and without the parties having had the opportunity specifically to consider the point, whether some of what the care staff do can be described as “medical treatment” on this ground.

 

J. Disposal

104. If follows from my above conclusions that in my judgment the First-tier Tribunal’s decision was wrong in law and must be set aside. But for the points which I have referred to in paras. 96 to 103 above, which may require further investigation of the facts, I would have re-made the First-tier Tribunal’s decision by substituting a decision allowing the Claimant’s appeal against the Secretary of State’s decision of 18 February 2008, and declaring that the Claimant was not disentitled by regs. 8 or 12A to payment of the care and mobility components respectively following his move to The Lodge. However, in the light of what I have said in paras. 96 to 103, (a) the Secretary of State should in my view be given the opportunity to consider whether he wishes to obtain or ask me to direct the provision by the Claimant, The Lodge or the Health Authority of further evidence as to those points and (b) the parties should have the opportunity to make further written submissions in the light of that evidence. I therefore postpone deciding what the terms of my substituted decision should be. This is therefore only an interim decision. The Secretary of State may of course decide that it is not worth pursuing these points further, in which case I would, on the present state of the evidence, also decide them against the Secretary of State, and substitute a decision allowing the Claimant’s appeal.

 

105. For the avoidance of doubt, I am not actually deciding that (if regs. 8 and 12A do not apply), reg. 9 does not disentitle the Claimant to the care component. It appears to me that it does not, but the point only arose during argument, and is not before me for decision.

 

K. Summary of conclusions

106.(1) In my judgment the Court of Appeal decisions in White and Botchett lead to the conclusion that a claimant is not in receipt of “medical or other treatment as an in-patient in a hospital or similar institution”, within the meaning of regs. 8 and 12A of the Social Security (Disability Living Allowance) Regulations 1991 merely because his accommodation and care in a care home without medical or nursing staff is funded by the NHS by way of NHS Continuing Healthcare, and he is cared for there by appropriately skilled care staff.

 

(2) The fact that, in addition, the claimant receives what is undoubtedly medical treatment or nursing elsewhere than at the care home makes no difference (save possibly in exceptional situations where there is some strong link between the care home and the institution where the treatment does take place).

 

(3) It may be sufficient (but in the absence of further evidence as to the facts in the present case, and possibly further submissions, I do not consider it satisfactory to decide the point) if (i) the claimant receives a significant level of treatment from a doctor, nurse or other healthcare professional on the premises of the care home, notwithstanding that the relevant professionals are not employed or engaged by the home and/or (ii) the care staff at the home can be said to be acting to a sufficient extent under the supervision of doctors or other healthcare professionals (e.g. in giving medication, applying restraint procedures etc).

 

(4) Although the situation of the Claimant in the present case, and of claimants in a similar position, would appear to fall squarely within the rationale for regs. 8 and 12A, an amendment to those provisions is in my judgment required if the effect for which the Secretary of State contends is to be achieved. The problem would appear to have arisen because the NHS has, relatively recently, begun to accept responsibility for funding the accommodation and care of persons whose needs it considers can be met without residential nursing care. This may be because the scope of what the NHS considers as its responsibility has been extended in the light of Coughlan and the development by the NHS of the concept of a “primary health need”, and/or because nursing care is no longer considered to be necessary in all the circumstances in which it once was. As I have said, in my view the social security legislation needs to be amended if it is to keep pace with those developments.

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

8 November 2010