Whapples v Birmingham Crosscity Clinical Commissioning Group & Anor  EWHC 2647 (Admin); (2014) PLLR 085
Bench Division, Administrative Court, Sales J 30 July 2014
There is no presumption that NHS is obligated to provide housing to a person with suitable healthcare needs merely because that housing would assist in meeting those needs if there are alternative means available.
(1) The claimant, who has extremely severe physical symptoms stemming from post-traumatic stress disorder (PTSD), applied for judicial review of her CCG’s refusal to provide her with accommodation free of charge as part of a health care package under section 3 of the National Health Service Act 2006.
(2) The claimant has numerous severe medical problems. She is tetraplegic and has been paralysed from the neck down since 1979. She has been registered blind since 2001, and has difficulties in breathing, among other medical issues. It was common ground that her condition is due to PTSD. Her PTSD is due to alleged abuse that occurred in institutions in the West Midlands in which she was cared for.
(3) She is extremely distrustful of people in authority and medics, particularly anyone providing care in the West Midlands, making arrangements for her care challenging.
(4) The CCG is currently in the process of seeking a determination in the Court of Protection that the claimant lacks capacity to make decisions relating to her care. Its predecessor made a similar challenge in 2008, in which the Court of Protection determined that the claimant had capacity to make most decisions about her health care (save in the instance of being admitted to hospital for emergency treatment).
(5) The claimant has no significant assets and her medical condition is such that she cannot work, so she has a strong claim to be in receipt of means-tested social assistance from a housing association and her local authority. She argues that she would feel greater assurance about the accommodation options available to her if she can establish that the CCG has an obligation to provide her with accommodation. She has been living in a tenancy provided by a housing association for the last 20 years, but it is common ground that her medical needs can no longer be met in this space. There was also medical evidence presented that the claimant would benefit from living outside the West Midlands so that she would not have to deal with authorities in this area. The housing association is willing to support the claimant’s moving out of the area, but the claimant has not allowed the association to have the information it deems necessary to processing her application.
(6) The CCG argued that it did not have an obligation to provide the claimant with accommodation, and the claimant could pursue other means of meeting her housing and social welfare needs.
(7) HELD: Though the CCG has the power to provide a person with ordinary residential accommodation to such an extent as it considers necessary to meet the reasonable requirements of that individual, it was not obligated to do so in this case.
(8) The CCG has the power to provide ordinary private residential accommodation where it deems it appropriate per the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (the “Framework Guidance”). The court found there is no presumption that NHS is obligated to provide housing to a person with suitable healthcare needs merely because that housing would assist in meeting those needs. Assessment of alternative options is necessary in determining the NHS’s obligations, and NHS bodies are local authorities are to cooperate in meeting the person’s needs.
(9) The court found that nothing the CCG had done was in conflict with the Framework Guidance. If there are alternative ways a person’s accommodation needs can be met, it is legitimate to expect a careful exploration of those options before the NHS funds a person’s housing needs. This is particularly the case where other methods are the more typical means of meeting a person’s needs.
(10) The court expressed concerns that the claimant may not currently have capacity to litigate and that this matter may end up being resolved by the Court of Protection’s decision. The court also found that the claimant had stymied a number of proposals to find suitable housing.
(11) The court distinguished the present matter from R (Moore) v Care Standards Tribunal, finding a real prospect of the claimant’s obtaining suitable accommodation through a housing association if she cooperated in this effort.
(12) The court stated it is satisfied that the CCG’s refusal to provide housing is lawful.
 – NHS Continuing Healthcare Guidance  – NHS Continuing Healthcare Guidance  – Duty of NHS to provide accommodation  – Duty of NHS to provide accommodation  – Capacity to litigate  – Real prospect of suitable housing  - Duty of NHS to provide accommodation  – Conclusion