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Secretary of State for Work and Pensions v Slavin [2011]

Summary

Court of Appeal decision

This was the Secretary of State’s appeal against the decision CDLA/3638/2010. The Court of Appeal decision affirms that, in certain circumstances, claimants who are living in a care home wholly funded by the NHS may be entitled to the care component of Disability Living Allowance (DLA).

The decision also discusses whether such an arrangement is considered a hospital for the purposes of DLA mobility component.

Background

The claimant was diagnosed as having the following medical conditions: severe learning disability, Fragile X Syndrome (autistic traits), challenging behaviour, hay fever, gingivitis, sensitive skin and epilepsy.

As a result of his condition his behaviour could be extremely challenging, such that he needs to be continuously supervised by at least one, and sometimes two care staff, who needed to be ready to intervene in order to attempt to prevent him causing damage to property or injury to himself or others.

He lived at home until his behaviour eventually became too challenging for his parents. On 26 November 2007 he moved into a privately owned and run care home -“The Lodge”. Although it was staffed by appropriately experienced and skilled care staff, it did not have any staff with medical or nursing qualifications.

The fees for the claimant’s accommodation and care there were paid by 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.

The claimant was in receipt of the higher rate of the mobility component and the highest rate of the care component of 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 he 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”). 

The claimant appealed against the decision, 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.

A tribunal dismissed the claimant’s appeal, finding that The Lodge was a “hospital or similar institution”. 

The Upper Tribunal decision

In reaching his decision, Upper Tribunal Judge Turnbull identified the issues in the appeal as:

(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 regulations 8 and 12A to apply, notwithstanding that The Lodge has neither medically qualified nor nursing staff?

(2) if not, do regulations 8 and 12A apply:

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

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

Judge Turnbull held 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.
  • 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).
  • it may be sufficient 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).

Judge Turnbull therefore set aside the tribunal decision and remitted the case to a new tribunal to investigate the type and nature of care provided to the claimant at The Lodge.

The DWP appealed to the Court of Appeal.

The Court of Appeal judgement

The Court dismissed the DWP’s appeal. Lord Justice Richards held that:

"55. The Lodge is registered as a care home only, not as a nursing home, and it does not purport to provide nursing care. Its staff are trained to handle challenging behaviour and to support in other ways the particular needs of residents; they are given an initial induction and ongoing training and are encouraged to work towards NVQs. But they do not have professional qualifications or training as nurses, nor do they work under the supervision of qualified nurses. It is true that they look after residents who, in the case of the respondent at least, suffer from a disability of the mind amounting to "illness", but it does not follow that the care they provide is nursing care; and in my view it can fairly be described as domestic care (or "personal" care, within the meaning of s.3(1) of the Care Standards Act 2000) rather than nursing care. There is nothing in the nature even of the "palliative treatment" referred to in the Leamington Spacase. The management of challenging behaviour is no doubt a demanding aspect of the care provided, but of itself it does not seem to me to constitute nursing. The support of residents in the administration of their medication is not sufficient to give the care a nursing rather than domestic or personal character. The situation is therefore materially different from that considered in the three main authorities.

56. If I am right that the care provided at The Lodge does not amount to nursing, it follows on the analysis above that the respondent is not undergoing "medical or other treatment" by reason of his residence there. Even if, contrary to the view expressed above, "medical or other treatment" has a wider scope than medical, dental and nursing treatment, I still do not think that the care provided at The Lodge amounts to "treatment" within the meaning of the expression.

58. … If the respondent is not undergoing "medical or other treatment" by reason of his residence at The Lodge, no useful purpose is served by separate consideration of whether The Lodge is "a hospital or similar institution" within the meaning of the regulations. I do not think that it is, but that is largely because it is not providing medical or other treatment to its residents (and for much the same reason I do not think that its residents can sensibly be described as "in-patients"). I might, however, have taken a different view of the matter if I had concluded that it was providing medical or other treatment to its residents. I stress in any event that, as indicated above, the issue falls to be considered on the assumption that the respondent does not receive treatment from doctors, qualified nurses or other healthcare professionals at The Lodge.

59. That leaves the question whether the receipt of medical or other treatment from healthcare professionals away from The Lodge can bring the respondent within the scope of the regulations. In my view, it cannot. The whole tenor of regs. 8 and 12A is that the person is undergoing treatment "in" the institution where he is maintained free of charge. That is underlined by the words "as an in-patient". Treatment away from the institution would be treatment as an out-patient. I reject Mr Buley's contention that the words "as an in-patient" should not be read as qualifying "medical or other treatment". They are an integral part of the condition and qualify "medical or other treatment" just as much as they qualify "maintained free of charge … in a hospital or similar institution".

Lord Justice Davis also held that:

"60. In my view it is legitimate to stand back and ask oneself, on the facts as found or as are required to be assumed, whether one would expect the answer "yes" to the question: "Is the respondent undergoing medical or other treatment as an in-patient in a hospital or similar institution?" I do not think one would expect such an answer.

67. In my view, on the wording of the Regulations and consistently with the authorities, for there to be medical or other treatment provided to the respondent, an element - which must be not insignificant - of care provided by, or under the supervision of, professionally qualified doctors or nurses at The Lodge is required. There is no doubt that the respondent suffers from a mental disorder or disability. Quite possibly, in times gone by, he would have been placed in a mental hospital. There is no doubt that he needs, and is being provided at The Lodge with, skilled and specialist care. But that is not enough. Mr Buley emphasised that the staff, whilst not professionally qualified, were trained in management of aggression and violence. Skilled physical restraint undertaken by a mental health nurse in a hospital or similar institution would be capable, I accept, of amounting to part of the "treatment" provided. But it does not follow that applying such restraint techniques is "treatment" for all purposes. It is not difficult to think of institutions – certain educational establishments, for example – where some staff are trained in such techniques; but no one would style use of those techniques in such a context as "treatment".

68. Since, as is my view, the respondent is not "undergoing medical or other treatment" it also really follows that he is not "an in-patient…in a hospital or similar institution." In truth, it is very strained to describe the respondent as an "in-patient". Further, The Lodge plainly is not a hospital; and by reason of the complete lack of treatment being provided by or under the supervision of professionally qualified doctors or nurses at The Lodge, in my view it is not a "similar institution" either. But all this really underlines the need to consider the wording of Regulations 8 and 12A as a whole and not to break it down into separate or prioritised parts."

The case was largely concerned with the mobility component and whether the Lodge counted as a hospital. However, the Court of Appeal highlights the fact that the definition of care home in Reg 9 of the DLA Regulations excludes “services provided pursuant to the National Health Service Act 2006”, and accordingly the claimant would be entitled to the care component as well, despite being in a care home.

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