IN THE UPPER TRIBUNAL Case No  CDLA/135/2012

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before UPPER TRIBUNAL JUDGE FORDHAM QC

 

 

Decision:  The appeal is allowed. The decision of the First-tier Tribunal (“the Tribunal”) sitting at Leicester on 26 April 2011 under reference SC038/10/03371 involved the making of an error on a point of law. That decision is set aside and I re-make it as follows:

 

(1) The claimant was entitled to, and entitled to be paid, the higher rate of the mobility component of Disability Living Allowance from 03 November 2009.

 

(2) The claimant was entitled from 03 November 2009 to the highest rate of the care component of Disability Living Allowance, but was not from 03 November 2009 entitled to be paid that component by virtue of regulation 9 of the Social Security (Disability Living Allowance) Regulations 1991.

 

.

 

 

REASONS FOR DECISION

 

 

Introduction

 

1.          On 2 November 2009 the claimant made a claim for the care component and mobility component of Disability Living Allowance (“DLA”). As at that date, and afterwards, the claimant was resident at the Matthews Unit, Epinal Way Care Centre (“the Unit”). His care was funded 50/50 between the health authority and the local authority (less a statutory contribution assessed at £69.90 per week).

 

2.           By a decision dated 20 April 2010, the Secretary of State accepted (as he still does) that the claimant was entitled to the higher rates for both the care and mobility components of DLA from 3 November 2009. However, the Secretary of State concluded (and still maintains) that neither component was payable to the claimant. The reason given was that the claimant was ‘in an NHS hospital or similar institution’. That was a reference to what I will call “the Hospitalisation Provision”, found in regulation 8 (for care component) and replicated in regulation 12A (for mobility component) of the Social Security (Disability Living Allowance) Regulations 1991 (“the 1991 Regulations”): see §8 below.

 

3.           The claimant appealed to the Tribunal. In reasons which it gave on 25 August 2011, the Tribunal upheld the claimant’s entitlement. It then reached a differentiated decision as to whether DLA components were payable, concluding that: (1) the mobility component was payable; but (2) the care component was not payable. The reason for finding (2) was because the claimant was “in hospital or somewhere similar” (§3(b), bundle page 121). That reason was plainly referable to the Hospitalisation Provision in regulation 8 of the 1991 Regulations.

 

4.           This is the Secretary of State’s appeal. In my judgment, there is a problem with the Tribunal’s decision and reasoning. If the Tribunal considered that the care component was not payable for the reason given, then that must have been because regulation 8 of the 1991 Regulations applied. However, if that was right then the same reason would have meant the mobility component was equally not payable under regulation 12A. The Hospitalisation Provision is identical in both regulations. The Tribunal did not grapple with regulation 12A, nor explain how a different conclusion could be justified under equivalent provisions. In my judgment, there was the making of an error on a point of law, because the Tribunal reached a differentiated conclusion as to the two components which could not be sustained on the Tribunal’s own reasoning. It follows that the Secretary of State, as appellant on this appeal, is entitled to have the case re-determined.

 

5.           I have power to re-make the decision myself, rather than remitting the case for a further hearing. I am exercising that power in this case, as I indicated in directions dated 26 April 2013 §3(4) that I was minded to do. As I explained in the reasons for those directions, I am conscious that this is a case in which the claimant sadly passed away on 9 July 2012, and his father is seeking to finalise the position regarding the estate.

 

6.           The parties have been able to lodge various rounds of written submissions, together with any further evidence on which they wish to rely. The latest communications are dated 2 July 2013 and 23 July 2013 on behalf of the Secretary of State (appellant), and 18 November 2013 on behalf of the claimant (respondent). I have been greatly assisted by all the submissions made. The Secretary of State accepts, as he has throughout, the question of entitlement as to both DLA components. The dispute is as to whether they are payable. That engages the Hospitalisation Provision, but also raises what I shall call “the Care Home Provision” in regulation 9, on which the Secretary of State relies in the alternative. I am satisfied that I am in a position to determine the correct outcome of this case without remitting the case for a further hearing, given the nature of the issues that arise. As a matter of discretion, I consider that to be the appropriate course, having regard to the circumstances and the overriding objective.

 

7.           I have not convened an oral hearing. Initially, the Secretary of State had requested one. That was resisted on behalf of the claimant (responding to the appeal), and I made a direction about it on 26 April 2013. The Secretary of State’s revised position, creditably, is to leave it to this Tribunal to determine whether an oral hearing is warranted. I am satisfied that the just conduct and disposal of the appeal does not require an oral hearing, and – having regard to the overriding objective – that the appropriate exercise of my discretion is to proceed without one.

 

The Hospitalisation Provision

 

8.           Regulation 8 (for care component) and regulation 12A(1) (for mobility component), as they stood at the relevant time, each meant that DLA would not be payable in respect of any period when the claimant was:

 

… 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 [etc]…

 

9.           Relevant case-law in this area makes clear that in principle the Hospitalisation Provision is capable of applying in a case where arrangements are made by a health authority involving a claimant being resident at a private institution. In my judgment, whether it does apply in the context of the present case raises four interrelated questions. The Secretary of State would need to be correct on all four questions in order for the DLA components not to be payable under the Hospitalisation Provision. I shall address each in turn.

 

(i) The “Treatment” Question

 

10.        The first question is: was the claimant “undergoing medical or other treatment as an in-patient in” the Unit?

 

11.        In Secretary of State for Work and Pensions v Slavin [2011] EWCA Civ 1515 [2012] PTSR 692 (bundle page 211) the Court of Appeal explained that “medical or other treatment” would include “nursing” by those with “a professional nursing qualification or training” (§§53-54), being “care provided by, or under the supervision of, professionally qualified … nurses at the [Unit]” (§67), and being “nursing … of a professional character, that is, administered by, or under the direction or supervision of, a qualified … nurse or nurses” (§78). The phrase “as an in-patient” underlines that the “treatment” must be undergone “in” the institution (§§59, 79).

 

12.        The Secretary of State submits that in the present case this test should be accepted as satisfied on the evidence which has been adduced. Had the Secretary of State been right about the other three questions, I would have been prepared to accept that submission, for the following reasons.

 

(1)     The starting point is one of significant doubt because the Department for Work and Pensions had invited Leicestershire County Council in March 2010 to “Please … confirm that nursing care is provided”, but the answer which came back was “NURSING CARE IS NOT PROVIDED” (page 91). On behalf of the claimant, strong reliance is placed on that statement (page 233 §3). It is argued that the Unit is a “care home” (page 233 §1), of which it can be said that it is “registered as a care home only, not as a nursing home” and that it “does not purport to provide nursing care” (page 234 §8). In making those points, a parallel is sought to be drawn with the care home in Slavin, which was registered to provide the service of “care home only” (§30), “not as a nursing home, and it does not purport to provide nursing care” (§55).

 

(2)     The evidence supports the conclusion that in fact the Unit is registered for the following type of service: “Care home with nursing, Rehabilitation (illness or injury)” (page 276). The service overview is to provide “accommodation for persons who require nursing or personal care …” (page 299). Furthermore, one of the Care Quality Commission’s standards for the Unit is care “by staff who are properly qualified …” (page 278); and one outcome for the November 2011 review of the Unit (page 299) was “Staff … properly trained and supervised”, and the review referred to “appropriate staff” and “health and welfare needs met by competent staff” (page 301). Moreover, asked what percentage of staff were “medically trained” (page 317), the Senior Manager’s response is that “The percentage of Nurses at the … unit at the time was 31% of the total workforce” (page 319).

 

(3)     Although a 25 August 2009 Individual Support Plan for the claimant referred to “assistance with all aspects of personal care with two carers” (page 61), the Inter-Professional Report for the claimant dated 22 November 2009 was co-written by “Claire Dawson (Registered Nurse)”. Moreover, the content of the report referred to “physical health” being addressed by a physio team who “continues to work closely with the nursing team” (page 64). The claimant’s Suprapubic catheter required changing by “nursing staff … approximately every three weeks” (page 64). The stated goal to “continue care of pressure sore (Nurse)” (page 66), involved it being “regularly reviewed by tissue viability nurse (TVN) Lindsey Large and … dressed when required by RGNs within the unit, as advised by Lindsey” (page 65).

 

(4)     In the light of the judgments in Slavin, and this evidence, I cannot accept the claimant’s submissions (email 18 November 2013 – which I shall paginate as page 320): that there was nothing which was “sufficient” to constitute “treatment … as an in-patient”; or that the element of care provided by, or under the supervision of, professional qualified nurses was “insignificant”.

 

(5)     That is sufficient in my judgment to decide the point. However, as the Secretary of State submits and I accept, it is relevant that the Unit is also registered in respect of “Rehabilitation services”. That is significant in law, because “rehabilitative treatment” falls within “medical treatment” under section 191 of the Social Security Administration Act 1992 and so section 73(1)(b) of the 1992 Act, being the source of regulations 8 and 12A. In that respect, as regards the evidence, in my judgment it is relevant to “rehabilitative treatment” that the Inter-Professional Report of 22 November 2009, itself co-written by a “physiotherapist”, referred to the work in the claimant’s case of the “Physio team” (page 64). Of the 8 stated goals, five were actions for the “Physio” (page 66). “Interventions” involving the “physio” were stated to involve a “1 hour per month review” and “3 hours per week (Rehab Assistant) Physio” (page 66). The references to “competent” and “appropriate” staff, properly “trained and supervised”, must also apply to physiotherapists. In this regard, it is noteworthy that in Slavin, Richards LJ referred to “other healthcare professionals” (at §58), which resonates with what Judge Turnbull had said about “physiotherapy and occupational therapy” in §88 of the determination under appeal in that case (see bundle page 206).

 

(ii) The “Institution” Question

 

13.        The second question is: was the Unit “a hospital or similar institution”?

 

14.        In White R(S)8/85 (1993) 17 BMLR 68, discussed in Slavin at §18, the Court of Appeal accepted that a privately owned registered home could constitute a “hospital or similar institution”. In Slavin itself the Court of Appeal did not need to decide whether, had the necessary “treatment” been undergone, the care home would have constituted a “hospital or other similar institution” (see §§58, 68, 79).

 

15.        The Secretary of State submits in the present case that this test should also be accepted as satisfied on the evidence which has been adduced. Had the Secretary of State been able to satisfy the other three questions, I would have been prepared to accept that submission, for the following reasons.

 

(1)     The cases proceed on the basis that a registered home could in principle constitute “a hospital or other a similar institution”. There is a link between finding that the individual was “undergoing medical or other treatment as an in-patient”, and finding that the institution where that was occurring was “a hospital or similar institution under the NHS Act of 1977 [etc]”. As was explained in Slavin, the latter conclusion “may often be determined by the finding on the treatment issue” (§79). Put the other way round, finding a “complete lack of treatment being provided” would preclude finding that there is a “similar institution” (§68).

 

(2)     The statutory definitions discussed in Slavin at §§9-10 are noteworthy. In the NHS Act 2006 section 275(1), Parliament defined “hospital” to mean “any institution for the reception and treatment of persons suffering from illness”, which includes “any injury or disability requiring medical … treatment or nursing”. In the Care Standards Act 2000 section 3, a section 275(1) “hospital” is excluded from the statutory meaning of “care home”, being a home which “provides accommodation, together with nursing or personal care”.

 

(3)     The authorities discussed in Slavin at §§14-20 are significant. They would support the propositions that where a home provides appropriate, qualified professional nursing, the institution is to be seen: (a) as a “hospital” at least if the “main purpose is to treat patients … by the exercise of professional skill” rather than “to take care of them” (see §16, discussing the Leamington Spa case [1954] Ch 530); (b)  as a “hospital” if there is “appropriate nursing … [and] nurse staffing” so that “the provision of nursing by professionally trained nurses in [the] institution” is not “minimal” (see §18, discussing the White case R(S)8/85 (1993) 17 BMLR 68, and see §15(5) below); and (c) as a “hospital or similar institution” if it is “a home where they reside so that [‘medical or other treatment’] can be made available to them” (see Slavin at §19, discussing the Botchett case (1996) 32 BMLR 153).

 

(4)     I see no reason, in principle or on the authorities, to depart from the statement which had been made by a Tribunal of three Commissioners in R(DLA)2/06 at §7, by reference to these same authorities, that: “A care home can amount to a ‘hospital’ where the resident requires and is provided with nursing services”. That broad approach to the present case is, in my judgment, further supported when it is recalled that the regulations do not hold to the concept of “hospital” but included “similar institution”.

 

(5)     The White case (see §15(3) above) was a 1993 decision of the Court of Appeal which illustrates that a privately owned home, registered as both a residential care home and a nursing home, is capable in principle of being “a hospital or similar institution”. It is also significant because it rejected the idea (said to arise from Leamington Spa: §15(3) above) that the question “is to be decided by reference to whether the dominant purpose is medical treatment, or whether the majority of the services provided to the patient is medical treatment”. Rather, it was sufficient if it could not be said that “the provision of nursing by professionally trained nurses in [the] institution is minimal”.

 

(6)     In Commissioner Skinner’s 1991 determination in R(IS)7/92 it was held that a privately owned nursing home constituted a “similar institution” (§7) which (under the wording of the regulations in issue there: see §5), although not “maintained or administered under the National Health Service Act 1977 … or by or on behalf of the Secretary of State” (§8), was an institution where the claimant was undergoing treatment “pursuant to arrangements made by the Secretary of State or by anybody in exercise of functions made on behalf of the Secretary of State under those Acts” (§9). I find that decision a helpful reference-point for two reasons. First, because the analysis of “similar institution” was underpinned (see §7) by the registration status of the home, the skilled nurses on the staff, and the care provided by them. Secondly, because the language used in the Hospitalisation Provision has become simpler. In this case, regulation 8(1)(a) and regulation 12A(1)(a) the language “maintained or administered under” is not used (cf. regulation 8(1)(b) and 12A(1)(b), regarding “the Defence Council”), and the broad phrase which is used is apt in my judgment to include the situation where health authorities make financial arrangements for treatment to take place. The same point can I think be made by reference to the White case.

 

(iii) The “Maintenance” Question

 

16.        The third question is: was the claimant “maintained” while at the Unit?

 

17.        As I shall explain when I discuss the “free of charge” question below, there is an argument for merging questions 3 and 4. However, the authorities which I will discuss here have focused on ‘maintenance’ as a distinct concept. I am persuaded that it is appropriate for me to do the same. The significance of this can be seen, in the first place, from the case of R(DLA)2/06, a July 2005 determination by three Commissioners (referred to in Slavin at §21). I think it is important to analyse carefully what that case decided.

 

18.        The case of R(DLA)2/06 illustrates that a private institution, there a registered home, can be a place where a claimant is relevantly “maintained”. In my judgment, it is a case which is authority for the following four propositions, each of which is supported and illustrated as indicated in the accompanying discussion below.

 

(1)     First proposition, as to the meaning of “maintained”: a claimant is relevantly “maintained” for the purposes of the Hospitalisation Provision, where the health authority owes a statutory duty to arrange for the accommodation free of charge, under what was section 3(1) of the National Health Service 1977.

 

Discussion. As it was put: “a person is not entitled to payment of DLA … in circumstances where he is entitled to be provided with accommodation and care under the National Health Service” (§77). Accordingly, it is in the situation where “the health authority had a duty to arrange for accommodation to be provided free of charge by virtue of section 3(1)(a) … [or] section 3(1)(b)” that “it follows” that claimants were “not … entitled to payment” of DLA (§§81-82). That section 3 duty will arise where the claimant “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)” (§76). The Hospitalisation Provision will therefore “apply where the amount of nursing care provided implies a duty on the health authority to make accommodation available under section 3(1)(a) or (b) of the 1977 Act” (§75). An illustration of a situation where the need for accommodation arose from needs for non-nursing care and attention, rather than nursing care, is (§75) the previous case of CIS/3325/2000.

 

(2)     Second proposition, as to the need for “some nursing services” to be provided: the Hospitalisation Provision can only “bite” if there are “some nursing services” provided by the National Health Service in the care home which are “more than merely incidental and ancillary to other care needs” (§78).

 

Discussion. One reason for this is that if there is “no care … provided by the National Health Service”, the claimant could not be said to be “maintained … in a hospital or similar institution under the NHS Act of 1977” (§78), it being the case that in the Hospitalisation Provision “the words ‘under the NHS Act of 1977’ … qualify the words ‘maintained free of charge while undergoing medical or other treatment as an in-patient’” (§64). Another reason is that the section 3 duty (see the first proposition above) arises only where accommodation is required by the claimant “because of his or her need for nursing services” rather than where “any nursing services required are merely incidental or ancillary” (§76).

 

(3)     Third proposition, as to the relative positions of the health authority and the local authority: the Hospitalisation Provision will apply only where the local authority does not have the statutory function of providing the accommodation under Part III of the National Assistance Act 1948.

 

Discussion. This follows from the first proposition (above), because where the health authority owes a section 3 duty to make accommodation available, the local authority has no power to provide accommodation under Part III of the 1948 Act: see section 21(8) of the 1948 Act. So: “A local authority has no power to provide such accommodation due to the effect of section 21(8) of the 1948 Act” (§76). Put another way, the Hospitalisation Provision will “not apply if the amount of nursing care provided is consistent with the accommodation being provided [by the local authority] under Part III of the 1948 Act” (§75). So, “the implication of the provision of accommodation by the local authority” is that a claimant’s need for accommodation does not engage the health authority’s section 3 duty, as an accommodation need arising “out of their needs for nursing care” (§75).

 

(4)     Fourth proposition, as to the relative positions of the health authority and the claimant: the Hospitalisation Provision can apply even where claimants are “charged and … paid for their accommodation” (§§65, 67).

 

Discussion. The “fundamental” point is that the health authority is not “entitled to pass responsibility for the payment for the accommodation to the claimants” (§69). It is in this context that it suffices that “any part of the overall cost of accommodation and nursing is met under the 1977 Act”, because the claimant “must be regarded as being maintained free of charge, notwithstanding that he in fact pays charges for other services” (§72). This was answering the argument that charges for accommodation paid by a claimant would be fatal (§65). The “part of the overall cost” which was “met under the 1977 Act” (§72) mirrored the “part of the overall cost” which was “met from public funds” (§70).

 

19.        In the present case, it is submitted on behalf of the claimant that he was not “maintained” at the Unit, so that the Secretary of State cannot succeed on this question. I accept that submission, for the following reasons.

 

(1)     It is not said in this case that the health authority owed any section 3 duty to make provision for the accommodation at the Unit. Nor is it said that the local authority owed no duty under the 1948 Act. On the evidence, the claimant’s care package was funded 50/50 between the health authority and the local authority (page 91). The local authority confirmed that its payment was made under Part III of the 1948 Act (page 92). None of this is in dispute (page 259 §16.2). In these circumstances, applying the first and third propositions I have discerned from R(DLA)2/06 (above), the claimant was not relevantly “maintained” for the purposes of the Hospitalisation Provision.

 

(2)     This analysis is on all fours with the determination and reasoning of Upper Tribunal Judge Lloyd-Davies in CDLA/509/2009 at §5, with which I agree and from which I see no basis to depart.

 

(3)     The question arises (addressed by the Secretary of State at pages 250-253) as to whether passages in R(DLA)2/06 are inconsistent with Judge Lloyd-Davies’s analysis in CDLA/509/2009. I am satisfied that, when read carefully and in context, they are not. I have set out in detail (§18 above) what in my judgment is the correct analysis of R(DLA)2/06. On that basis, there is no inconsistency, nothing which undermined Judge Lloyd-Davies’s approach in CDLA/509/2009, and no reason to depart from it.

 

(4)     The high water-mark of the Secretary of State’s case based on R(DLA)2/06 is, in my judgment, the passage in that case (at §72) which reads as follows:

 

it is plain that … a person is “maintained” in a hospital or similar institution … if any part of the overall cost of accommodation and nursing is met under the 1977 Act. In such a case, if the claimant is maintained in a care home by a health authority to the extent of the provision of nursing services, he must be regarded as being maintained free of charge, notwithstanding that he in fact pays charges for other services.

 

At first sight, that passage appears to support the Secretary of State in saying that the “maintenance” question would be satisfied in the present case. I am clear, however, that such a conclusion would involve taking the passage out of its context in the analysis. This passage was not dealing with the position as between the health authority and the local authority (as to which, see proposition 3). It was not suggesting that an individual would be “maintained” for the purposes of the Hospitalisation Provision where (a) a health authority made payments referable to nursing services while (b) the local authority was responsible for the accommodation. That would have been flatly inconsistent with the reasoning elsewhere, as to propositions 1 and 3 (above). This passage is, rather, concerned with proposition 4 (analysed above), and dealing with the position of the health authority and the claimant. It was answering the argument (see §65) that the claimant was not “maintained” because he was charged for the accommodation. When it spoke, in that context, of “part of the overall cost of accommodation and nursing [being] met under the 1977 Act” (§72), it was reflecting what had been said about “part of the overall cost of his accommodation and nursing [being] met from public funds” (§70). That is why the passage was emphasising what “he … pays”.

 

20.        It follows from this that the Secretary of State cannot succeed on the “maintenance” question, and cannot therefore invoke the Hospitalisation Provision. That means:

 

(1)     The Tribunal was correct in the present case to uphold (page 122 §7) the submission made on behalf of the claimant, based on R(DLA)2/06 and CDLA/509/2009.

 

(2)     The Tribunal ought, on that basis, to have concluded that both components of DLA were payable to the claimant, so far as the Hospitalisation Provision was concerned.

 

(iv) The “Free of Charge” Question

 

21.        The fourth question is: was the claimant maintained “free of charge” while at the Unit?

 

22.        In the light of my conclusion on the third question, the answer to this as a distinct question could not assist the Secretary of State.

 

23.        I can see that there is an argument for merging questions 3 and 4, which runs as follows. (a) There are no distinct “maintenance” and “free of charge” questions, but rather a single composite “maintenance free of charge” question. (b) That is because the composite phrase “maintained free of charge” is defined in the regulations (see what I call “the Restrictive Definition”, below). (c) Where a claimant’s case triggers the first two questions (the “treatment” question and the “institution” question), the only question is whether the Restrictive Definition applies. (c) Any authorities such as R(DLA)2/06 or CDLA/509/2009, insofar as they treat DLA as otherwise capable of being payable, are wrongly decided.

 

24.        I am not prepared to adopt that approach. I prefer to follow the case-law which I have been considering in the context of question 3 – the “maintenance” question – and not to depart from it. I am not satisfied that the case-law is wrong, still less – if it matters – plainly wrong. I think it is a tenable view of the Restrictive Definition that what it is articulating is the required approach to the words “free of charge” in the context of the Hospitalisation Provision. I accept that the Restrictive Definition includes the word “maintained, and indeed it also includes the phrase “in a hospital or similar institution”. However, I see these as the contextual setting in which “free of charge” appears in the Hospitalisation Provision. Put another way, the Restrictive Definition is saying what “maintained free of charge means”, but only in a case where it is already apt to speak of the claimant as “maintained”. Further, as it seems to me, there is a greater coherence in treating the Restrictive Definition as only being in play where the public funds used for the claimant’s accommodation and nursing needs are NHS funds: see the first proposition from my analysis of R(DLA)2/06. It may be impossible to find full coherence between regulation 8, alongside regulation 9, as I think the Court of Appeal found in Slavin. But the first proposition from R(DLA)2/06 does, I think, give rise to a greater coherence in seeing what the provisions are driving at. It also reduces the harsh consequences of the Restrictive Definition, remembering that what is being interpreted is an exclusionary provision. For all these reasons, in line with the case-law, I approach questions 3 and 4 as being distinct.

 

25.        Had the “free of charge” question been decisive, whether in answering a self-standing fourth question or a composite third question, I would have accepted the Secretary of State’s submission that it was satisfied. That is for the following reasons:

 

(1)     The case on behalf of the claimant is that he could not be regarded as being maintained “free of charge” in this case. That is because his accommodation at the Unit, arranged and funded by the local authority pursuant to section 21 and 26 of the National Assistance Act 1948, involved recovery of a statutory charge from the claimant himself under section 22(3). This gives “free of charge” its ordinary and natural meaning. Nobody would say that the claimant was maintained “free of charge” when he had to make a payment.

 

(2)     However, the Hospitalisation Provision does not leave “free of charge” to be given its ordinary and natural meaning. Instead, there is the specific and restrictive accompanying definition in regulation 8(2) and 12A(2) – as in force at the relevant time – which provided (“the Restrictive Definition”):

 

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, or 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.

 

(3)     The essential effect of the Restrictive Definition – where it applies – was explained in R(DLA)2/06 at §72, that: “a person is always to be regarded as maintained free of charge when maintained in a hospital or similar institution under the 1977 Act unless he is a private patient in a National Health service hospital or the only element of maintenance is the provision of goods and services for which charges may be levied …”

 

(4)     The Restrictive Definition can be traced back at least 25 years in the social security legislation, to November 1987. As can be seen in the case R(IS)7/92 at §11: (a) even its predecessor in 1975 (regulation 2(2) of the Social Security (Hospital In-Patients) Regulations 1975) required that the individual paid “the whole cost of the accommodation or services (other than services by way of treatment) provided for him in the hospital or similar institution”; (b) in 1987 this was amended (by the Social Security (Hospital In-Patients) Amendment (No.2) Regulations 1987 SI 1987/1683) to say “unless his accommodation and services are provided under section 65 of the National Health Services Act 1977 …”; (c) that was even “more stringent in its application” (CS/248/1989 §7) and had “clear and unambiguous” wording which “necessarily requires” what may be “a harsh result” (§11). As had been pointed out in CS/248/1989 (§7), absent one of the special section 65-type arrangements, it was “immaterial whether or not [a claimant] is in fact making from his own resources some contribution, whether in cash or in kind. He will still be treated as being maintained free of charge”. In that respect, it can also be said that a similar and equivalent harshness can be seen in the Care Home Provision (regulation 9(1) of the 1991 Regulations) which, albeit designed differently, makes it fatal that “any of the costs of any qualifying services provided for him are borne out of public or local funds under a specified enactment”. That point will be relevant when I discuss the Care Home Provision, below.

 

(5)     The statutory scheme has deliberately preserved the restrictive approach which had been introduced in the social security legislation in 1987. Its effect is deliberately to exclude from payable benefits individuals who could legitimately say, in ordinary language, that they are not maintained “free of charge” because they make a contribution. They are excluded from benefit being payable because a specific and restrictive meaning has been used in the regulations. No room is left to get round it. Regulation 8(2) is framed: “shall only be regarded as not being maintained free of charge … during any period when …”

 

Conclusion

 

26.        For the reasons which I have given, I have concluded that the Hospitalisation Provision was inapplicable in this case. Neither component of DLA became unpayable on the grounds that the claimant was “in a hospital or similar institution”. It follows that the mobility component (higher rate) was payable from 3 November 2009. Notwithstanding its legally erroneous reasoning (§4 above), the Tribunal’s conclusion (§3 above) at paragraph 3a of its reasons (page 121) was the correct conclusion in law and on the evidence.

 

The Care Home Provision

 

27.        In relation to care component, there is a further question: is care component rendered non-payable in this case by virtue of the Care Home Provision (regulation 9 of the 1991 Regulations)?

 

28.        The Care Home Provision – as applicable to this case – prevents care component from being payable in respect of any period when a claimant:

 

… 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.

 

This provision mirrors – and produces almost verbatim – the language of the empowering provision under which it was made: see section 72(8) of the Social Security Contributions and Benefits Act 1992.

 

29.        I indicated in the reasons for my directions in this case (26 April 2013) that my provision view was that the Care Home Provision did apply in this case. I am satisfied – having considered the submissions, authorities and evidence which have been put forward by the parties – that this is indeed so. My reasons are as follows:

 

(1)     The claimant was “resident” in the Unit.

 

(2)     The Unit was “a care home”, being “an establishment that provides accommodation together with nursing or personal care”: section 72(9).

 

(3)     Relevant “qualifying services” included “accommodation”: section 72(10)(a).

 

(4)     The exclusion – at the relevant time – from “costs of any qualifying services” of “the cost of … services provided pursuant to the National Health Service Act 2006 [etc]” (regulation 9(6)(f): repealed on 8 April 2013 under SI 2013/389) does not affect that position, nor do the cases discussing that provision assist. That is because in this case “accommodation” was not a service provided pursuant to the NHS Acts, and so remains to be seen as a “qualifying service”.

 

(5)     Relevant “specified enactments” included “Part III of the National Assistance Act 1948”: regulation 9(2)(a)(i).

 

(6)     At least part of the costs of the accommodation was borne out of public or local funds under section 21(1)(a) and section 26 (in Part III) of the 1948 Act, even though there was a partial charge levied on the claimant under section 22(3). The position is clear on the evidence (see eg. bundle pages 91-92, 104). This distinguishes the case of Slavin [2011] EWCA Civ 1515 where accommodation costs were borne by the health authority (see §5 of the quotation at §2), and – for the same reason – the case of R(DLA)2/06 (see §§44, 61). Part is sufficient, because “any of the costs of any qualifying services” (regulation 9(1)) clearly means “any of the costs of any accommodation”.

 

30.        For these reasons, I have concluded that the Care Home Provision was applicable in this case, with the consequence that the care component of DLA was not payable from 3 November 2009. It follows that the Tribunal’s conclusion at paragraph 3b of its reasons (page 121) was the correct conclusion in law, albeit that it was for a legally erroneous reason (§§3-4 above).

 

Disposal

 

31.        It follows that the Tribunal’s conclusions were correct in law and on the evidence, albeit that its reasoning was erroneous. I am conscious that I could dismiss this appeal and uphold the Tribunal’s conclusions, albeit for the reasons which I have given. In my judgment, it would be better and clearer for me (a) formally to allow the Secretary of State’s appeal, (b) to decline to remit the matter for a rehearing and (c) to re-make the decision as follows:

 

(1)  The claimant was entitled to, and entitled to be paid, the higher rate of the mobility component of Disability Living Allowance from 03 November 2009.

 

(2)  The claimant was entitled from 03 November 2009 to the highest rate of the care component of Disability Living Allowance, but was not from 03 November 2009 entitled to be paid that component by virtue of regulation 9 of the Social Security (Disability Living Allowance) Regulations 1991.

 

 

 

 

MJ Fordham QC

Judge of the Upper Tribunal

5 December 2013