Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CDLA/254/2009

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal by the Claimant (to whom I will refer as “J”), brought with the permission of a Judge of the First-tier Tribunal, against a decision of a First-tier Tribunal sitting at Wakefield as long ago as 29 September 2008. For the reasons set out below that decision was in my judgment wrong in law and 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 below and re-make the First-tier Tribunal’s decision as follows:

 

The Claimant’s appeal against the decision of the Secretary of State made on 30 January 2008 is dismissed.

 

The decision which I have substituted is a decision in the same terms as that made by the First-tier Tribunal, and in substance this appeal has therefore not succeeded.

 

Introduction

2. J is a man now aged 26 who suffers from epilepsy and from very severe learning disability. By reason of those conditions he requires 1 to 1 care during the day, and a degree of supervision during the night. Until 14 September 2007 he lived at home, and was in receipt of the higher rate of the mobility component and the highest rate of the care component of disability living allowance. However, on 14 September 2007 he moved into supported residential accommodation at the David Lewis Centre in Warford, Cheshire. The David Lewis centre is a facility owned and run by David Lewis, a charity which is dedicated to improving the life experiences of people with complex epilepsy, autism, and learning and physical disabilities. Its “portfolio of services” includes short to long stay residential placements, with or without nursing care, a specialist school and further education college, and a medical service. The building in which J lives (which I shall refer to as “W House”) is a home which caters for up to 15 residents, and is staffed by skilled carers without medical or nursing qualifications. However, medical and nursing treatment is available through the Assessment and Medical Centre, situated nearby in the David Lewis Centre. J’s placement at the David Lewis Centre was and remains entirely funded by the NHS.

 

3. On 30 January 2008 the Secretary of State decided that J had not been entitled to payment of either component of DLA with effect from 17 October 2007, on the ground that he had for more than 28 days been “undergoing medical or other treatment as an in-patient in a hospital or similar institution” within the meaning of regulations 8 (care) and 12A (mobility) of the Social Security (Disability Living Allowance) Regulations 1991. J has, however, continued to be paid DLA in respect of periods when he is taken by his parents for days out or longer holidays away from the David Lewis Centre.

 

4. J appealed against that decision, but by the decision now under appeal to me, reached after a hearing at which J’s father and mother attended and gave oral evidence, the First-tier Tribunal dismissed that appeal. J’s appeal to the First-tier Tribunal, and then to the Upper Tribunal, related in terms only to the mobility component [para. 2.3 of 54], as it was considered (wrongly – see para. 12 of the Court of Appeal’s decision in the Slavin case – referred to immediately below) that J was in any event disentitled to payment of the care component by reg. 9 of the 1991 Regulations.

 

5. Proceedings in this appeal were stayed pending my interim decision, and then the decision of the Court of Appeal on appeal from that, in SSWP v Slavin [2011] EWCA Civ 1515, (both those decisions being reported as [2012] AACR 30), and then pending my final decision in the Slavin case, which was given on 3 December 2012.

 

The First-tier Tribunal’s decision

6. The First-tier Tribunal made some findings of fact which indicate that it had a wrong or incomplete understanding of the factual background. For instance, it stated in para. 8 of its Statement of Reasons that “the Centre does not employ any nursing staff”, and in para. 11 that “any requirements [J] may have for medical care including surgery is carried out offsite and not at the Centre.” In addition, it of course made its decision without the benefit of the decision of the Court of Appeal in Slavin. Further, the parties have in their written submissions in this appeal provided considerable further evidence as to the facilities provided at the David Lewis Centre. In my judgment these factors lead to the conclusion that the First-tier Tribunal’s decision must be regarded as wrong in law and set aside.

 

7. The parties’ submissions proceed on the footing that, if the First-tier Tribunal’s decision is set aside, I will re-make the First-tier Tribunal’s decision rather than remitting the matter for rehearing by a fresh First-tier Tribunal. The essential facts as to J’s placement at the David Lewis Centre, and the facilities and treatment available, are not in dispute. I consider that I am able properly to re-make the First-tier Tribunal’s decision on the evidence and submissions before me. Nearly 6 years have now passed since the date of the decision which was under appeal to the First-tier Tribunal. By section 12(8)(b) of the Social Security Act 1998 a First-tier Tribunal (and therefore the Upper Tribunal in re-making a First-tier Tribunal’s decision) cannot take into account circumstances not obtaining at the date of the decision under appeal. Inevitably, much of the information about the David Lewis Centre and J’s treatment and care which has been produced recently relates to the current position. However, the evidence does not in general indicate that there has been material change since January 2008. I therefore propose simply to express my findings and conclusions in the present tense, save where particular changes are noted.

 

The facts

8. I make the following findings of fact, which, as there is essentially no dispute as to the primary facts, are essentially a summary of what I consider to be the salient points emerging from the documents. (As to the very few respects in which there does appear to be some dispute as to primary fact, I have so indicated and if necessary resolved it). References [x] are to page numbers in the bundle of documents used in this appeal. As parts of the David Lewis brochure as copied in the bundle are very difficult to read, I have looked at the version now on the David Lewis website.

 

(a) The David Lewis Centre

9. David Lewis is a registered charity which, “is dedicated to improving the life experiences of people with complex epilepsy, autism, learning and physical disabilities” ([259] – the introductory words in the David Lewis brochure).

 

10. The nature of the facilities provided by David Lewis is described in detail in the brochure [237-260], and in the replies from David Lewis to questions put to them by the Claimant’s representative [276 to 280], from which the following summary is taken. 

 

11. David Lewis owns and operates a site at Warford, Alderley Edge, Cheshire of some 50 acres. A site layout plan is at [239]. That site (known as “the David Lewis Centre”) contains a number of services, which were rebranded in 2009/10 to include the following, (which also appear to correspond with the services which are now registered with the Care Quality Commission (CQC)).

 

12. First, there is the “Pathways and Community Adult Service.” This is registered by the CQC for a maximum of 126 residential and supported living places. As at July 2013 there were 101 adult residents. These residents are accommodated in some 11 residential buildings or homes on the site. J lives in one of these homes (W House). The types of service provided are shown by the CQC as being both “care home service without nursing” and “care home service with nursing” [276]. The “regulated activities” are shown as being “accommodation for persons who require nursing or personal care” and “treatment of disease, disorder or injury.” It seems that the residential placements can be either with or without nursing care (see e.g. [259 and 276]). I note, however, that it is stated in the most recent submission on behalf of J [271] that the only residential building with qualified nursing staff has been closed. I do not think that anything turns on whether there was in 2008 or is now still any accommodation whose staff includes qualified nursing staff.

 

13. As at June 2007 this supported living service was registered with the CQC as a “care home only” by the name of the “David Lewis Centre Supported Adult Living Unit”. The registration certificate stated that “the registered number of places (106) are allocated to the 8 houses that make up the Supported Adult Living Unit as follows….” That list included W House, which was stated to be for 15 places [38].

 

14. Secondly, there is the “Assessment and Treatment Service”. According to the brochure [251]:

 

“Our medical and therapy teams offer invaluable support to all of our services.

 

Our people know that they will receive the best possible service for health and well being.

 

We have an onsite clinic with visiting GP cover. This ensures all urgent and non urgent needs can be dealt with quickly and efficiently. Our nursing team support the GP service, offer 24 hour cover and provide support and advice to the residential teams. A minor injury clinic helps to prevent residents making unnecessary visits to A & E Departments. However, we work closely with our local hospitals to ensure people receive the best possible care from admission to discharge, should there be a need to be referred or admitted.

 

Our onsite consultants offer expert advice, assessment and diagnosis of people’s ongoing health matters. They range from:

 

·        Neurology

·        Neuropsychiatry

·        Clinical

………………………….

·        Psychology

·        Behaviour Support

 

Our multi-disciplinary team [MDT] meets weekly to discuss, review and evaluate each person’s progress with health matters, skill development and behaviour.”

 

15. More detailed information as to the staff employed by the Assessment and Treatment Service, and also as to healthcare professionals contracted in on a sessional basis, is at [277-8]. In particular, there are 3.6 FTE doctors, 8.6 FTE nurses, 3 FTE mental health nurses, 1 FTE health care assistant, 0.6FTE consultant psychiatrist, and a wide variety of other healthcare personnel etc as there set out. It is there further stated that out of hours cover is provided 24/7 by the nursing team.

 

16. The on site medical centre/clinic is shown on the site map [239], and as it happens is very close to W House, although I do not think that anything can turn on that. It contains a pharmacy, a GP surgery, doctor’s offices and consulting rooms in respect of long term conditions, an EEG suite, a dental surgery, and a minor injury clinic. The GP surgery is funded by the NHS and provides normal GP primary care. J is registered with that GP, who has a main surgery elsewhere but also this “satellite” surgery at the Centre. As I understand it, matters going beyond ordinary primary care would be dealt with either by one of the other on-site health professionals, or if necessary by referral to a hospital. If appropriate J would be visited in W House by one of the on-site healthcare professionals.

 

17. The on-site nurses (referred to as “Cover Centre Nurses”) have a dual role. They both support the primary care provided by the GP and provide emergency 24 hour care. Primary care duties include triage and treating patients on behalf of the GP (but referring any conditions outside their skill set to the GP), routine monitoring of e.g. weight, blood pressure etc and routine preventative measures such as annual flu vaccinations. Emergency care includes treatment and review of minor injuries including suturing and onward referral to hospital where necessary; and where necessary supporting care staff with management of seizures and management of nursing issues such as ongoing wound care or catheter care.

 

18. The David Lewis Centre also comprises, thirdly, the Education and Life Skills Service, which includes a specialist school and further education college offering residential and day placements for young people from 14 upwards.

 

19. The facilities available at the David Lewis Centre, apparently in respect of each of the three “services”, include a refurbished swimming pool, hydrotherapy pool, fully equipped gym, bowling green, cafe, coffee bar, media and IT suite, land based skills centre, flood-lit all weather sports pitch, animal centre, and social club offering a wide range of on-site activities. [259; 277-8]. There is a large collection of adapted bicycles/tricycles and a fleet of 16 minibuses, MPV and other adapted vehicles.

 

 

 

(b) J’s medical condition

20. A significant amount of information about J has been provided by his parents, and by David Lewis. I refer, in particular, to the information at [280-5] and the person-centred plan at [288 onwards].

 

21. J was born on 23 May 1987 and is therefore now aged 26. He developed epilepsy at the age of 12 months. He attended the David Lewis centre when he was 5 years of age for a 3 year assessment. He suffers from a rare form of epilepsy known as Lennox Gastaut Syndrome. It results in tonic, tonic clonic, atonic and myoclonic seizures multiple times per day. He is fitted with a Vagal Nerve stimulator to help ease the seizure frequency. The care staff are trained in how to operate this. He also suffers from profound learning difficulties, which are described in more detail in the papers. The First-tier Tribunal was told [70] that he has the mental skills of a child of 9 months and the physical skills of a child of 13 months. Even if the seizures were to cease or diminish (as to which there is regrettably no prospect) he would be wholly unable to look after himself. He also has mobility difficulty and had reconstructive surgery to both feet in 2005.

 

22. He uses a wheelchair when outside W House. He has wheelchairs both at the David Lewis Centre and at home. He also has a dual seat tricycle to help mobility and exercise on the David Lewis site. This provides a bench seat with lap straps, and pedal straps. It allows the carer to sit alongside and control steering and brakes. He also has a large adult size 3 wheeler trike buggy for walks at home. These mobility aids were all paid for by his parents, and in evidence in 2008 J’s father said that the family uses the mobility component to pay for spares, servicing and renewal of these aids.

 

(c) J’s placement at the David Lewis Centre and the care and treatment provided

23. On 17 September 2007 J moved to W House. His placement was and is funded entirely by the Huddersfield PCT on the basis that he is eligible for “NHS Continuing Healthcare” on the ground that his primary need has been identified as a health need under the National Framework for NHS Continuing Healthcare. (For further reference to this document, see, for example, the Court of Appeal’s decision in Slavin at [8]).

 

24. By letter dated 9 November 2007 J’s mother informed the DWP that he had “moved into temporary residential care at the David Lewis Centre ….to see if we can achieve a better control of his intractable epilepsy.” [24] In his witness statement dated 5 August 2013 [307], however, J’s father states that “we were not looking for a cure, not looking for continued medical intervention, but very specialist care”. I do not think that anything turns on this, but I find that the letter of 9 November 2007 must have accurately stated the position as it was viewed at that time. It would appear that it has since become accepted that “better control”, in the sense of eliminating or reducing the number of seizures, is not possible, and that J is resident in the David Lewis Centre not to improve his condition but primarily in order to ensure his health and safety and to provide the very intense level of care which his condition demands, and in addition to provide him with the best quality of life reasonably possible.

 

25. There are currently 11 residents in W House, aged between 25 to 40. The very substantial care staff ratio is evident in the fact that it is staffed by 48 FTE care staff. J is funded for 1:1 care support during the day (14 hours) and [ ] at night. There are no staff with nursing qualifications routinely on duty at W House. (At [50] is a note by a DWP decision maker of a telephone conversation on 18 June 2008 with one of the care staff at W House who is recorded as saying that J “receives both social care and health care. He receives 1 to 1 health care and is on a contract from the NHS. He receives 14 hours care from qualified nursing staff.” I accept, however, that that was simply wrong, in so far as it gave the impression that the care staff had nursing qualifications. Either the note was inaccurate, or the speaker stated the position incorrectly). The care staff are skilled at adopting measures to ensure so far as possibly that a seizure will not result in physical injury, and in recognising when it is necessary to activate the Vagal Nerve Stimulator and/or to summon the Team Leader in order to administer PRN medication (described at [302] as being for clusters or seizures or prolonged seizures lasting 2 minutes or more) or to summon medical assistance.

 

26. David Lewis has provided information as to the extent of medical treatment or supervision actually provided to or in respect of J at the David Lewis Centre [see in particular 59 and 280-2], from which the following is taken. (The 12 month period referred to is in fact that ending in July 2013, which is when the recent details were provided)

 

27. J’s condition is routinely reviewed approximately once every 3 months by a multidisciplinary team. There have been 4 such reviews in the past 12 months, 3 regarding epilepsy and 1 (with a neuropsychiatrist) in relation to anti-depressant medication. These reviews are attended, as a minimum, by W House’s residential manager or deputy, a “David Lewis medical representative”, a specialist nurse and a member of the social work team [280]. In addition J’s key worker and a care officer normally attend. Any other staff can be brought in as required. In a letter dated 11 July 2008 [59] David Lewis said:

 

“….. [J’s] epilepsy is monitored by Dr Simon Parsons, consultant psychiatrist, who is employed by the David Lewis Centre. [He] is reviewed by Dr Parsons and care staff on a two monthly basis. [His] medication and general are discussed at these meetings, which may result in amendments to prescribed medication.”

 

It appears from the more recent information which I have referred to [271 and 280] that these meetings are now less frequent, and may generally be attended by a doctor employed by the David Lewis Centre rather than a consultant psychiatrist. However, in the past 12 months J’s case has been considered at the Centre by a consultant neurologist twice and a neuropsychiatrist once [284].

 

28. So far as seizure control and management is concerned, the medication is reviewed by the MDT at these meetings by reference to seizure records and charts maintained by the care staff at W House, and discussions with the representative of the care staff who is at the meeting. Healthcare professionals do not routinely see or examine J for that purpose.

 

29. J has seen or been reviewed by the GP 4 times in the past 12 months, for matters such as a flu jab and prescription of a hay fever drug. He has been reviewed or seen by the Cover Centre Nurses 39 times in the past 12 months (i.e. an average of rather less than once a week), predominantly for routine monitoring and minor injuries. He has been reviewed on 2 occasions by the consultant neurologist, and once by the consultant neuropsychiatrist (for review of anti-depressant medication, as referred to above). He has also been seen on 4 occasions in the VNS clinic, which is a routine clinic which would normally be provided as part of the NHS epilepsy service and is usually nurse led. DL has the equipment on site to prevent out patient attendance at a hospital.

 

30. J’s parents are aware of 3 occasions in the past 12 months when it has been necessary for J to be taken to an A & E Department at hospital for matters such as X rays for suspect breaks after a fall. When it was necessary to replace his Vagus Nerve Stimulator in 2008, the operation had to be performed in an unconnected hospital. In information provided in August 2008 [58] J’s parents pointed out that by then he had been admitted to hospital once for suspected “status epilepticus” from seizures, and he had attended hospital on another occasion as a result of serious cuts resulting from seizures.

 

The legislation

31. The relevant legislation and the background to it are set out in the judgment of Richards LJ in Slavin at [4] to [12]. The immediately relevant provisions are regulations 8 and 12A of the Social Security (Disability Living Allowance) Regulations 1991. As at the date of the decision under appeal to the First-tier Tribunal (30 January 2008) reg. 12A provided:

 

“(1) Subject to regulation 12B (exemption), it shall be a condition for the receipt of disability living allowance which is attributable to entitlement to the mobility component for any period in respect of any person that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient –

 

(a) in a hospital or similar institution under the NHS Act of 1977, the NHS Act of 1978 or the NHS Act of 1990; or

 

(b) in a hospital or other similar institution maintained or administered by the Defence Council …..”

 

The subsequent amendments to that provision have been solely to update the references to the NHS Acts. Regulation 8, in relation to the care component, is in the same terms.

 

32. The following propositions are established by the Court of Appeal’s decision in Slavin, and the authorities referred to in it.

 

33. First, the word “hospital” in reg. 12A(1) has the same meaning as in the definition of that word in (now) section 275(1) of the National Health Service Act 2006:

 

“‘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 …”

 

34. Secondly, the words “medical or other treatment” in reg. 12A, and “treatment” in the s.275 definition of “hospital”, include the “medical or dental treatment or nursing” referred to in the definition of “illness” in s.275 of the 2006 Act. They may well also include treatment by other healthcare professionals such as physiotherapists. However, the word “nursing” is limited to care provided by qualified nurses, and does not extend to care, however specialist and skilled, provided by care staff without medical or nursing qualifications.

 

35. Thirdly, if a care home provides nursing care, the resident is “undergoing medical ………. treatment as an in-patient in a hospital or similar institution”, within the meaning of reg. 12A. Although, read strictly, such a care home would appear to be within the definition of “hospital”, it is plainly not a hospital in ordinary parlance, but is in any event caught by the words “or similar institution.”

 

The submissions on behalf of J

36. The submissions made on behalf of J are in summary as follows. The medical treatment and nursing care which is provided and available to J at the David Lewis Centre does not mean that he is in receipt of medical or other treatment “as an in-patient in a hospital or similar institution”. In essence, it is contended that the position is no different, in this respect, from what it would be if he were in a care home without nursing staff, and if nursing care and medical advice and treatment were obtained by visiting a GP or (as necessary) hospital in the normal way, or if necessary by requesting a home visit by a GP or calling an ambulance. It is pointed out that the bulk of the attention given by nurses at the David Lewis Centre has been for matters which would normally have been catered for either by the nurse at a GP surgery, such as routine checks of blood pressure and weight, or possibly by attending a minor injuries clinic at a hospital. As far as the quarterly (or so) reviews by the multidisciplinary team are concerned, it is pointed out that these are done on the basis of seizure charts kept by the care staff. It is contended that the position in this respect is again is in substance no different from what it would be if he were living in an ordinary care home, or at home with his parents, and the information about seizures was provided to and J’s medication kept under review by a consultant or team at a hospital. For these reasons, it is contended that the medical treatment which he receives is not received “as an in-patient”, and that W House is neither a hospital nor an institution similar to a hospital. It is simply a residential care home which has a substantial number of medical and other facilities in very close proximity and as part of a larger unit. The only medical attention which he regularly receives at the David Lewis Centre which might otherwise have been provided by a hospital is (i) the quarterly epilepsy reviews, which would not have necessitated J himself (as opposed to his parents or other carers) going to the hospital, let alone becoming an in-patient, and (ii) treatment for minor injuries, which again would have been provided either by a nurse at a GP’s surgery or as an outpatient at a hospital.

 

 

 

Analysis and conclusions

(a) General

37. The staff who routinely look after J at W House on a day-to-day basis do not include staff with nursing qualifications. However, there a number of features of the service provided for J at the David Lewis Centre which arguably distinguish J’s position from that of a resident in an ordinary care home which has no qualified nursing staff.

 

38. First, his epilepsy management, including medication, is kept under regular (in practice quarterly or so) review by a multidisciplinary team which meets at the David Lewis Centre and includes a number of healthcare professionals, and which receives input from a representative of W House’s care staff.

 

39. Secondly, J is registered with a GP who has a branch or unit situated at the Centre, and is supported by nurses from the complement known as “Cover Centre Nurses”.

 

40. Thirdly, the care staff on behalf of J have access to 24 hour nursing cover on the site, and to a qualified doctor (not the GP) based on the site. These professionals are available to deal with matters such as minor injuries and with medical emergencies. In addition the David Lewis Centre either employs, or contracts in on a sessional basis, many other healthcare professionals, including consultants. All these professionals are either based at or physically come to the David Lewis Centre, and if necessary can visit J at W House. If a medical matter arises which goes beyond the expertise or facilities available at the Centre (e.g. if Xrays or surgery is required), J is referred to hospital elsewhere, as necessary.

 

41. Fourthly, W House is part of a much larger unit, the David Lewis Centre, which in addition to medical facilities provides a range of leisure and other facilities, described in its brochure.

 

42. As I see it, the significance of the medical and nursing treatment that is available on site is not simply that it is available in very close proximity to J House. That could, I suppose also be the case with a care home which happened to be situated next to a hospital. It is that the medical facilities are advertised and provided as part of the services available to residents. (There is no information before me as to the manner in which these medical services are funded, and my decision does not turn on it, but I assume that the fees which David Lewis charges to residents in their supported accommodation (and which are fully funded by the NHS) include sums to cover the costs incurred by David Lewis in employing the medical staff which it employs or contracts in. (Those staff presumably do not include the GP or the nursing complement in so far as supporting the GP).

 

(b) Is J resident in a “hospital or similar institution”?

43. The wording of regulation 12A may require one to identify the “institution” in which the claimant is resident: on the face of it one cannot decide whether a claimant is in receipt of medical treatment as an inpatient in a hospital or similar institution without having identified what “institution” he is living in. There are three possible candidates: (i) W House; (ii) The Pathways and Community Adult Service; (iii) the David Lewis Centre. I do not think that there can be any difference, for present purposes, between possibilities (i) and (ii).

 

44. I think that a plausible case can be made for each of the three possibilities. As noted above, at the CQC the services provided at the David Lewis Centre are registered in three separate units, one being the Pathways and Community Adult Service (formerly known as the Adult Supported Living Unit), and another the Assessment and Treatment Service. However, many of the facilities on the site (e.g. the café, laundry, kitchen, and in particular the recreational facilities) appear to be common to two or more of those units. Further, the facilities of the Assessment and Treatment Centre are available to the occupants of the supported living units.

 

45. I have come to the conclusion that in the final analysis it is in this case unnecessary to identify the institution in which J is accommodated, because the answer is not determinative of the outcome. I am content to proceed on the footing that the “institution” in which he is living is properly regarded as either W House or the Pathways and Community Adult Service. Even on that view, however, it is clear that the common facilities on the site, including the medical treatment available from the Assessment and Treatment Service, are available to a resident as part and parcel of his residence in the residential institution. I therefore think it right, broadly, to regard the medical advice and treatment which is available at the David Lewis Centre to be a feature of the residential institution, and not to regard it as treatment which is provided by some organisation or institution outside and separate from the institution where he is living. In its brochure at [237 onwards] David Lewis emphasises, it seems to me, the advantages which are available to residents, in terms of medical and therapy support [251], and recreational facilities, which are available on site. The residential units and these facilities are is treated more or less as an integrated unit. I refer in particular to the passages at [251] which I set out at para. 14 above, and also to the fact that at p.250 the Pathways and Community Service is said to offer “medical expertise in managing epilepsy.” I also note [276] that the “regulated services” which are stated by the Centre to be provided by the Pathways and Community Adult Service include “treatment of disease, disorder or injury”.

 

46. On that footing, it is in my judgment right to regard the institution in which J is living as being a “hospital or similar institution”, for the purposes of regulation 12A. He has available to him, as part and parcel of his residence in that institution, nursing care and other medical treatment which goes beyond that which is available from a GP’s surgery (and indeed which goes well beyond the treatment provided by the satellite GP surgery which is to be found in the Medical Centre on site). He is in substance resident in an institution “for the reception and treatment of persons suffering from illness”, within the definition of “hospital” in section 275(1). Although the residential accommodation, together with the associated facilities, are clearly not a “hospital” in ordinary parlance, it is clear that medical treatment going well beyond primary care is available as an incident of residence, and it is in my judgment therefore appropriate to regard the institution in which J lives as an institution “similar to” a hospital.

 

47. The fact that the David Lewis Centre is not able to provide by any means all of the facilities which would be available at a general hospital does not in my judgment affect that conclusion. In my judgment it is sufficient that it subsists for the purpose of providing a significant element of medical treatment or nursing. A hospital, as defined in s.275 of the 2006 Act, is simply an institution for the reception and treatment of pesons suffering from illness. Institutions which are undoubtedly hospitals may specialise, and provide only some of the facilities available in a general hospital. For example, an institution which is undoubtedly a hospital may have no A & E Department or may no have facilities for carrying out any surgery at all (e.g. a psychiatric hospital).

 

48. In paras. 98 and 99 of my decision at first instance in the Slavin case I said:

 

“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.

 

49. In my judgment it is clear that some at least of the residents of the supported living units, including J, are admitted there at least partly for the purpose of receiving medical treatment, at the David Lewis Centre, of a nature which would not normally be obtainable from primary care and which would be available in a hospital or in a home providing nursing care. It seems to me right to say that one of the purposes of their being accommodated is the availability on the site of the medical and nursing treatment. The treatment which is available certainly cannot in my judgment be disregarded as de minimis.

 

50. I note that in his submission at [283] J’s father states that “Assessment and Treatment Service is not relevant to [J].” If that is intended to mean that he does not benefit from the on site medical facilities, I must reject the statement. I also refer to his statement in evidence to the FTT [71] that the David Lewis Centre is “a bit like a village.” It is, however, a very unusual kind of village, with specialist and other medical facilities available to the residents.

 

(c) Is J undergoing medical or other treatment “as an in-patient”?

51. As noted by the Court of Appeal in Slavin, this question is very closely linked with the question whether J is resident in a “hospital or similar institution.” It is necessary to examine in a little more detail the nature of the treatment which has been provided to J through the Assessment and Treatment Service.

 

52. First, there are the approximately quarterly reviews by a multi-disciplinary team of his seizure control and other matters as necessary, which may result in revised instructions as to medication and/or revised advice to care staff as to seizure management. The actual administration of the medication and any other management suggestions is of course for the most part carried out by the non-medically qualified care staff in W House. It seems to me to be right on these facts to regard both the giving of advice and the administration of medication as being “medical treatment” which J is undergoing “as an in-patient.” The seizure charts are maintained by the care staff, a representative of whom attends the multidisciplinary meetings on site, and the medication is administered as instructed at the onsite review. It is in my judgment significant in this respect that J is resident in a home on the site and that healthcare professionals are employed to work at, or are contracted to come to, the clinic on site. This enables care staff and the other medical professionals to talk and to each other easily as part of an integrated service. The situation in my view differs from that which I considered in Slavin, where the non-medically qualified staff of a care home administered medication, prescribed by a GP or consultant having no connection with the home. At para. 102 I said:

 

“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.”

 

53. The difference in that case was that the medical professional reviewing and prescribing the treatment was (as I assumed) unconnected with the home where the claimant lived. Here the treatment is reviewed and administered as an incident of J’s residence in a unit at the David Lewis Centre. It seems to me to be right to regard the medication as being medical treatment which J is undergoing as an in-patient, albeit that it is actually administered by carers without nursing qualifications. Even if that is not the case in relation to the actual administration of the medication, it is more clearly so in relation to the advice given at the meetings, which must in my view be regarded as medical treatment, and which is in my view provided to him in substance as an in-patient.

 

54. Secondly, there is the treatment provided by the on-site GP and by nursing staff, in so far as acting in their role of supporting primary care [281]. This is funded by the national health service in the normal way. Although it is undoubtedly “medical treatment”, I do not think that it is right to regard it as treatment provided to J as an in-patient. (Nor would it be right to regard the institution in which J lives as being an institution “similar to” a hospital simply because primary care is available via a GP who has a satellite surgery on site).

 

55. Thirdly, there is the treatment provided by and available from the “Centre Cover Nurses” in the other part of their dual role, namely that of providing emergency 24/7 care and staffing the minor injuries clinic. While some of the 39 occasions on which J was reviewed by nurses in the past 12 months related to routine monitoring such as would be provided by primary care, some are said to have been for minor injuries. This treatment was in my judgment also provided to J as an in-patient. It cannot be disregarded as de minimis. As J’s parents note at [284], the “minor injury clinic relieves the stress of an A & A visit.” Further, the availability to the residents of 24 hour nursing cover, including where necessary attendance by a nurse at W House, however infrequently it may actually be relied upon, must be a facility of considerable importance.

 

56. Fourthly, there is the advice and treatment available from the doctors (not being J’s GP), consultants and other medical personnel who are engaged by the DL Centre. (In J’s case this appears to have been utilised, within the last 12 months, primarily at the quarterly review meetings, which I have dealt with under the first heading, above). Again, for the same reasons this should in my judgment be regarded as provided and available to him as an in-patient.

 

57. I accept that, were J living in a care home elsewhere, or at home with his parents, he could and would receive the treatment which I referred to under (1), (3) and (4) above as an outpatient. I acknowledge that the contention that he should therefore in substance be regarded as receiving it as an outpatient has some force. However, in my judgment the fact that it is provided as an incident of his residence in W House, and if necessary by visiting him there, is sufficient to render it treatment provided to him “as an in-patient in a hospital or similar institution.”

 

 (d) Conclusion

58. In my judgment, therefore, J has at all material times been undergoing medical treatment as an in-patient in an institution similar to a hospital, within the meaning of regulations 8 and 12A of the Social Security (Disability Living Allowance) Regulations 1991, with the result set out in paragraph 1 above.

 

59. J’s parents have emphasised that they do incur extra costs in connection with J’s mobility. However, I do not think that that consideration can be relevant, in view of the wording of regs. 8 and 12A.

 

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

21 October 2013