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[2001] UKSSCSC CIS_3325_2000 (03 August 2001)

 


THE SOCIAL SECURITY COMMISSIONERS

Commissioner's File No: CIS 3325/00

(Heard with Nos. 1788/00, 1792/00, 3328/00, 3330/00, 3332/00, 3333/00,

3335/00, 3338/00, 3339/00, 3340/00, 3341/00 & 3342/00)

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

COMMISSIONER: P L Howell QC

3 August 2001

PLH Commissioner's File: CIS 3325/00

(Heard with Nos. 1788/00, 1792/00, 3328/00, 3330/00, 3332/00, 3333/00,

3335/00, 3338/00, 3339/00, 3340/00, 3341/00 & 3342/00)

SOCIAL SECURITY ACTS 1992-1998

APPEAL FROM DECISION OF APPEAL TRIBUNAL

ON A QUESTION OF LAW

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Claim for: Income Support

Appeal Tribunal: Lincoln SSAT

Tribunal Case Ref: U/42/040/1999/01033

Tribunal date: 5 & 28 April 2000

(Full decision issued 26 May 2000)

[ORAL HEARING]

1. In this appeal which I heard together with twelve others raising similar points of law the claimant was a person who had been receiving income support as a resident of Middlefield House, which is a small privately owned and run registered mental nursing home specialising in the care of adults suffering from severe learning disabilities.

2. In each case the claimant, who had moved to Middlefield House on or following the closure in the late 1980s of the old Victorian mental hospital in which he or she had previously been a long-stay patient, was originally awarded income support at the applicable rate for persons in residential care or nursing homes. However some years later the Department of Social Security sought to review and terminate this entitlement, on the ground that the original awards had been mistaken either in fact or in law and the claimant ought to have been treated all along while in Middlefield House as a "patient" receiving free in-patient treatment at a hospital or similar institution for the purposes of regulation 21 and Schedule 7, Income Support (General) Regulations 1987 SI No. 1967, with the result that no income support was payable at all.

3. In each case the Lincoln social security appeal tribunal, by decisions dated 21 October 1998 on two of the cases and 28 April 2000 on the remainder, confirmed the decisions of adjudication officers that the income support to which the claimants were otherwise entitled had rightly been terminated on this ground, and in each case the question on the appeal is whether they were right in law to do so.

4. I held a combined oral hearing of all the appeals against the tribunal's decisions in the thirteen cases. Bethan Harris of Counsel, instructed by the solicitor to the Lincolnshire County Council, appeared for all the claimants, and Leo Scoon of the solicitor's office, Department of Social Security, appeared for the Secretary of State. Each provided me with a useful skeleton argument pursuant to a direction I had earlier given, and I am grateful to both of them for their helpful written and oral submissions which enabled what otherwise might have been a cumbersome hearing of thirteen appeals simultaneously to focus on the real issues of law involved, which were in fact common to all of them.

5. This litigation is another dispute of the kind which has previously occasioned appeals to the Commissioners and beyond, between different public authorities as to how the financial cost of providing for the maintenance and care of people who were formerly looked after in old-fashioned mental institutions is now to be borne, under the altered arrangements made after those institutions were closed down. In each case (except one where the claimant has since died) the present manager of the nursing home acts as appointee for the individual claimant in pursuing the appeal: but the real dispute is whether the basic minimum needed to provide for his or her weekly living costs is the responsibility of central government by way of income support, or to be met by the health authority as it had been in the days when the claimant was a patient in one of the old hospitals. The local authority social services department is also concerned, in particular from 1993 when more of the responsibility for persons in residential or nursing care was transferred from central government to them.

6. These particular claimants know nothing of all this: they are not troubled by such things. Though adults physically, they are all people suffering from what is now called severe mental retardation, whose brains have never developed beyond infancy. This is a recognised mental disorder, but it is a developmental disorder, not a clinically treatable condition or "illness" in the strict medical sense. According to the evidence before the tribunal, what they need is continuous care and supervision with even the most basic things, because they are unable to look after themselves. This is provided for them at Middlefield House, by a mixture of qualified nursing staff and experienced care assistants. Such medication as is needed (mainly tranquillisers) is prescribed by GPs who visit Middlefield House from the local community, and administered by the nursing staff of whom at least one is always on duty.

7. As explained at the the second tribunal hearing on 5 April 2000 by the then manager of Middlefield House, himself a qualified nurse, the claimants because of their learning disabilities need help to cope on a daily basis with very basic things which for them are "pressure points" during the day: for example dressing, eating, drinking, problems with incontinence, and the need for guidance when walking out of doors. The constant challenge this must present for the nursing and care staff is met by devising a "care plan" for each of the patients, involving setting very simple goals to achieve such as some proficiency in dressing themselves, drying themselves, feeding themselves etc.

8. It is apparent from this and the other evidence in the papers about the individual claimants that they are all very severely disabled. Some have never even developed any ability to use language, and several were assessed in the discharge reports given by the consultant psychiatrist when they left the old hospital as having a mental age of only one or two years. As noted by the chairman in the decision given after the second hearing it was accepted that all the appellants suffer a similar level of disability.

9. It goes without saying that the work of looking after people in this condition and providing them with the care that they need to lead as reasonable a life as possible in a familiar secure environment is a most important public service, whoever has to bear the financial responsibility for it under the policies of the government of the day.

10. As noted above, the matter came to be considered by the tribunal at two separate hearings with a rather large time gap between them. The first, a full tribunal hearing on 21 October 1998, was into the two cases now before me on files CIS 1788/00 and CIS 1792/00 which had originally been selected as test cases to determine the relevant issues arising in relation to patients at Middlefield House, where at all material times there were 15 residents all suffering from the kind of difficulties I have described, all previously long-stay patients in National Health Service mental hospitals. The company running Middlefield House at that time went into administrative receivership, and subsequently it was decided to bring the remaining eleven cases before the tribunal for a further full hearing, with amplified evidence about the nature of the arrangements originally made and the care being given to residents at Middlefield House. That was done at hearings on 5 and 28 April 2000, before the same chairman who had presided over the earlier hearing, but this time sitting alone.

11. On each occasion the tribunal determined having regard to the evidence before them that the adjudication officers had been right to terminate income support on the ground that the claimant residents at Middlefield House had to be regarded as patients "receiving or having received free in-patient treatment" within the meaning of the Social Security (Hospital In-Patients) Regulations 1975 SI No. 555, amended as regards the period from 16 November 1992 onwards by 1992 SI No. 2595 reg 11. The exact terms of that regulation as it stood before and after 16 November 1992 will have to be looked at in more detail in a moment, but for present purposes it is enough to record that the tribunal reached the conclusions they did by holding in particular that having regard to the existing authorities in this area Middlefield House was for this purpose a "hospital or similar institution" and the residents in it were receiving "treatment".

12. Further, they expressed themselves satisfied that this treatment was pursuant to arrangements made by the health authority in exercise of powers under section 3 of the National Health Service Act 1977 on behalf of the Secretary of State, and that this was sufficient under the regulation to require the claimants to be regarded as being "maintained free of charge" and thus as "receiving free in-patient treatment". They so held even though the evidence showed the actual financial involvement and commitment of the health authority to be restricted to purchasing some extra day care for some only of the appellants at a relatively small monthly cost, and at no stage after the move to Middlefield House to have extended to the cost of their accommodation or daily maintenance. The full tribunal on 21 October 1998 recorded that they felt bound to reach that conclusion "with some reluctance".

13. The provisions of the hospital in-patients regulations which determine whether a person is a "patient" so as to turn them into a "special case" under reg 21 of the Income Support Regulations (which in the context of these cases deprives them of income support altogether) have already been considered in several appeals before the Commissioners, two of them going up to the Court of Appeal. It is common ground that each of the tribunals here was, or should have been, concerned with both forms of the regulation before and after 16 November 1992, as with only one exception the claimant's entitlement for a continuing period both before and after that date was in issue on every appeal. The one exception was case CIS 3340/00 where the claimant had only become a resident of Middlefield House in 1995, having been looked after by his parents from his discharge from hospital in 1989 until then.

14. Regulation 2(2) of the Hospital In-Patients Regulations 1975 as in force from 1987 until 16 November 1992 provided that:

"2 - (2) A person shall be regarded as receiving or having received free in-patient treatment for any period for which he is or has been maintained free of charge while undergoing medical or other treatment as an in-patient -

(a) in a hospital or similar institution maintained or administered under the National Health Service Act 1977 or the National Health Service (Scotland) Act 1978 or by or on behalf of the Secretary of State, or by or on behalf of the Defence Council; or

(b) pursuant to arrangements made by the Secretary of State or by any body in exercise of functions on behalf of the Secretary of State under those Acts in a hospital or similar institution not so maintained or administered;

and such a person shall be regarded as being maintained free of charge in such a hospital or similar institution for any period unless his accommodation and services are provided under section 65 of the National Health Service Act 1977 or section 58 of the National Health Service (Scotland) Act 1978."

15. From 16 November 1992 the regulation was amended so as to read:

"2 - (2) For the purposes of these regulations, a person shall be regarded as receiving or having received free in-patient treatment for any period for which he is or has been maintained free of charge while undergoing medical or other treatment as an in-patient –

(a) in a hospital or similar institution, under the National Health Service Act 1977, National Health Service (Scotland) Act 1978 or the National Health Service Act and Community Care Act 1990; or

(b) in a hospital or similar institution maintained or administered by the Defence Council;

and such a person shall for the purposes of sub-paragraph (a) be regarded as being maintained free of charge in a hospital or similar institution unless his accommodation and services are provided under section 65 of the National Health Service Act 1977, section 58 of, or para 14 of Schedule 7A to, the National Health Service (Scotland) Act 1978 or paragraph 14 of Schedule 2 to the National Health Service and Community Care Act 1990."

16. By section 3 of the National Health Service Act 1977 ("Services generally"):

"3 - (1) It is the Secretary of State's duty to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements –

(a) hospital accommodation;

(b) other accommodation for the purpose of any service provided under this Act;

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

(d) such other facilities for the care of expectant and nursing mothers and young children as he considers are appropriate as part of the Health Service;

(e) such facilities for the prevent of illness, the care of persons suffering from illness and the aftercare of persons who have suffered from illness as he considers are appropriate as part of the Health Service;

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

And by section 128(1):

" 'hospital' means –

(a) any institution for the reception and treatment of persons suffering from illness,

(b) any maternity home, and

(c) any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation, 

…. and 'hospital accommodation' shall be construed accordingly;

'illness' includes mental disorder within the meaning of [the Mental Health Act 1983] and any injury or disability requiring medical or dental treatment or nursing;"

Section 65 ("Accommodation and services for private patients") contains provision for health authorities to make available accommodation and services in their own hospitals for private patients who agree to pay for them on an appropriate commercial basis. None of the other provisions of the health legislation referred to in the In-Patients Regulations 1975 need be quoted for the present purpose.

17. Miss Harris conceded, in my view entirely rightly, that the tribunal had been right to hold themselves bound to find Middlefield House a "hospital or similar institution", by virtue of the definitions of "hospital" and "illness" in the National Health Service Act 1977 and the decisions of the Court of Appeal in reported cases R(IS) 18/94 CAO v White, [1993-94] Commissioners Decisions Reports 481, and R(IS) 10/96 Botchett v CAO, [1995-96] CDR 502. In my judgment that is incontrovertible: these are people suffering from mental disorder even though not a clinically treatable illness, and the type of care provided by Middlefield House for them places it squarely within the meaning of "hospital or similar institution" as laid down in those cases.

18. Similarly, it is in my judgment beyond argument that what these claimants receive as full-time residents of Middlefield House counts as "medical or other treatment as an in-patient" in the extended sense that has been held to be applicable to persons suffering learning disabilities or other mental disorders. See the Commissioner's decision in case R(IS) 7/92, [1991-92] CDR 310 dealing with this point at page 315, para 10; confirmed by necessary implication in the Court of Appeal judgment in CAO v White supra, and expressly in the Court of Appeal judgment in Botchett v CAO, per Evans LJ at page 507:

"If the social security regulations stood alone, I would be inclined to accept Mr Havers' submission that a distinction should be made between mental illness for which professional treatment is made available in a hospital or similar institution, on the one hand, and various forms of mental handicap for which skilled but domestic care, but not medical treatment, is required and which is made available in a residential home, on the other hand. But the regulations have to be construed with reference to the statutory definitions of 'hospital', 'illness' and 'mental disorder' already quoted, and these lead inexorably, in my judgment, to the conclusions that persons suffering from the degree of mental handicap to which unfortunately the appellant is subject are within the definition of mental disorder; that the care and assistance which they receive from nursing, as opposed to domestic staff must be regarded as 'medical or other treatment' within the statutory definition; ….".

19. The real issue which occupied the main part of the argument before me was whether the tribunal had also been right in finding that each claimant had been maintained free of charge while undergoing treatment, in the extended sense, as an in-patient in Middlefield House "pursuant to arrangements made by the Secretary of State" under the National Health Service legislation (as regards the period down to 16 November 1992), and "under the National Health Service Act 1977" (as regards the period after that). This question, it appears, is not the subject of any direct authority on facts such as those of these present cases.

20. The evidence before the tribunal on the first hearing on 21 October 1998 indicated simply that, as the tribunal found, the Health Authority had since 1988 when the first of the claimants had moved from hospital to Middlefield House been making payments (at a relatively small monthly rate, said in a letter from the health authority to be £49.28 in January 1998) for at least some of them, under a "supplementary services agreement", to allow extra day care to be provided for them because of their high nursing care needs. These payments were stated in a form completed by a health care manager on 13 October 1997 to have been made in exercise of powers under section 3(1)(e) of the National Health Service Act 1977.

21. On the basis of that evidence - there was no other before them on this issue - the first tribunal made a finding of fact in the following terms (page 29 of file CIS 1788/00):

"We also record as a fact that this funding commenced on the discharge of the appellants from their previous hospitals in 1988 or 1989 and has continued without break since then. We also accept as facts that the appellants were discharged from NHS hospitals to Middlefield House under arrangements by the Health Authority under section 3(1)(e) of the National Health Service Act 1977."

That led them to conclude (page 30) that the treatment received in Middlefield House was pursuant to arrangements made under that Act, in the following terms:

"As stated in our findings of fact, the clear evidence is that the appellant's treatment was pursuant to arrangements made by the Health Authority under section 3 of the National Health Service Act 1977. This is set out in the Benefits Agency document appearing at pages 7 to 11 of the papers and the arrangements are detailed in paragraph 4(b) of the Summary of Facts. These facts were not challenged by the appellant. We note in particular the reference in the Lincolnshire Health Authority letter of 15 January 1998 which confirms that the arrangement is 'part of a supplementary services agreement to allow extra care to be provided because of their high nursing care needs'. It is clear that Middlefield House provided more than domestic care. It also provided a high level of nursing care, and the arrangement was that it should do so. Accordingly, we find the appellant's care and nursing requirements were pursuant to an arrangement made by the Health Authority."

22. The only material piece of actual evidence in the documents they there referred to was the health care manager's response in 1997, indicating that a partial contribution had been made towards the nursing care costs under section 3(1)(e) of the National Health Service Act 1977. That contribution is more specifically identified in the other material as the monthly contribution towards the cost of extra nursing care by day.

23. The nature of this provision was explored further in the evidence before the tribunal at the hearing of the other cases, on 5 April 2000. It is now not in dispute that it was the only provision made by the Health Authority for the claimants as residents of Middlefield House following their admission there, and was a specific monthly payment for certain residents only, towards the cost of additional day care which some of them who were able to go out received by going to a day centre, and others received in Middlefield House itself. There was no evidence before either tribunal that the Health Authority had at any stage made any contribution to, or assumed any responsibility for, the accommodation or subsistence of any of the claimants at Middlefield House; or for the care or treatment of any of them on a 24-hour basis.

24. The evidence about this, recorded by the chairman on the second hearing on 5 April 2000 and not disputed, was (from the local authority social services manager involved in the closures at the time) that:

"It was provided that there would be access to day care from social services. This would have been a service provided in many instances away from Middlefield House … I understand there was funding from the Health Authority to Middlefield House for some day care services. It was intended that each patient should achieve some minor skill development and improvement. …. In some cases each patient would attend the day centre. Others would receive their skill training at Middlefield House."

and (from the deputy director of finance for the Lincolnshire Health Authority) that the Health Authority had not provided anything over and above the provision for day care services just described. There had been two agreements to which the Health Authority had been party, first an agreement in 1988 for a payment of some £20 per week for the provision of supplementary day care services for certain residents, and the second an agreement under section 28A of the National Health Service Act 1977 as amended between the Health Authority and the County Council by which the authority agreed to make cash contributions to the council for the purchase of certain services under section 28A of the 1977 Act instead of itself arranging their provision under section 3(1).

25. Copies of the two agreements, which were in evidence before the tribunal, are at pages 59 and 64 of file CIS 3325/00. The schedule to the second agreement sets out widely varying levels of contribution for different residents in different homes under the supervision of the Council, no doubt according to their assessed level of need: the contribution for services at Middlefield House is for ten named residents only, at the rate of £1,082-odd each per year which is small compared to the amounts contributed for some other patients at other homes. Again as explained in the oral evidence before the tribunal and not disputed, it was to provide for limited supplemental day-care costs only.

26. In his decision following the second hearing (pages 136-139 of file CIS 3325/00, issued to the parties on or about 26 May 2000), the tribunal chairman again referred to the form completed by the health service manager in 1997 saying in his findings of fact:

"7. In respect of each appellant form DBD46 had been completed indicating that section 3(1)(e) of the NHS Act 1977 had been relied on in the placement of the appellant at Middlefield House.

8. In each instance the appellant had been admitted to Middlefield House directly from an NHS hospital.

9. After the move to Middlefield House the Health Authority purchased some day care services for some of the appellants at an original rate in 1988 of £20 per week per appellant.

10. There was subsequently at section 28A agreement between Lincolnshire Health Authority and Lincolnshire County Council whereby the sum of £1082.64 per appellant per annum was contributed by the Health Authority for the provision of 'learning social care services' as detailed in the agreement."

27. Under the heading of "Reasons for Decision" he then stated that

"All the evidence produced on behalf of the appellants confirmed that in terms of both administrative policy and clinical judgment the relevant health authority with the active support and involvement of the Social Services Department of Lincolnshire County Council devised a scheme or a series of schemes for transferring patients from Harmaston Hall and Caistor Hospital, both being traditional hospitals for patients suffering from mental illness, to alternative accommodation and in the instance of the appellants to a nursing home where a different system of treatment and care could be provided."

28. He then proceeded from that to reiterate the conclusion reached in the first decision that the "treatment" of the claimants at Middlefield House fell within reg. 2(2) of the Hospital In-Patients Regulations as being "pursuant to arrangements made by the Secretary of State", saying,

"There can be no avoiding the fact that whereas there was no binding and complete written contract between the Health Authority and the then proprietor of Middlefield House nevertheless the placement of the Middlefield House was clearly pursuant to arrangements made by the Secretary of State under the National Health Service Legislation. It cannot reasonably be argued that the appellants were transferred from National Health Service hospitals to a private nursing home without the compliance and concurrence of the Health Authority and the active participation of the Health Authority in that process. Therefore I find that the Health Authority was a party to the arrangement."

29. He then expressed himself unable to distinguish the appellants from the claimants in the White and Botchett cases, and held them caught by the provisions of the regulations depriving hospital in-patients of income support, adding that he found this to be so also under the amended form of reg 2(2) in force from 16 November 1992 on the grounds that the appellants continued to undergo medical or other treatment as an in-patient in a hospital or similar institution after that date.

30. The chairman did not in that statement of reasons embark on any analysis of whether the appellants were to be regarded as being maintained "free of charge" in Middlefield House for the purposes of reg 2(2), but said that no issue in his judgment arose on this; implicitly reiterating the view expressed in the earlier statement of reasons for the first decision issued on about 29 October 1998 that the tribunal was bound so to conclude by virtue of the Commissioner's decision in case CS 248/89.

31. As Miss Harris pointed out and is beyond dispute, the chairman's findings and stated reasons in the second decision ignored the evidence in relation to at least one claimant in one important respect, namely that he had not been transferred directly from hospital to the nursing home at all but had been discharged into the care of his parents for some years in between. She also pointed out that the chairman's reasoning was defective in that this particular claimant was one of four in respect of whom the Health Authority had no continuing involvement, financial or otherwise, at any stage while they were residents at Middlefield House since they had not been included in either the original 1988 supplementary day care agreement or the agreement under section 28A which superseded it in 1999. In that, she appears to me undeniably correct. It also appears to me undeniable that the stated findings misrepresent the effect of the evidence in saying that each claimant's "placement" in Middlefield House had been by or on behalf of the Secretary of State under section 3(1)(e) of the 1977 Act, when in fact all the evidence showed was that some financial contribution had been made under that power for limited daycare facilities, not extending to accommodation or 24-hour care.

32. However, Miss Harris' objections to the reasoning which had led the two tribunals to the conclusions they reached were more fundamental, and applied as regards all the appellants equally. In her submission both the original decision of 21 October 1998 and the later one of 28 April 2000 embodied material misdirections, in that the very limited degree of involvement by the Health Authority in acquiescing (as it no doubt had) in the arrangements being made for each of its former patients' continued care on his or her discharge from hospital, and in continuing to pay for a very limited amount of day care in respect of certain patients only among those at Middlefield House, had been wrongly taken as "arrangements made by the Secretary of State" and "maintenance free of charge under the National Health Service Act" for the purposes of regulation 2(2) in its two manifestations, when in fact those arrangements had plainly been nothing to do with the patients' basic "maintenance" at all. At least, such evidence as there was before each tribunal of the nature of the Health Authority's involvement fell far short of what was needed to turn a person into one maintained free of charge in a hospital or similar institution under arrangements made by the Secretary of State or under the National Health Service Act 1977: so the decision should have been in each case that the Secretary of State had failed to discharge the burden on him of showing that the original award of benefit had been based on a material mistake of fact or law. Further or alternatively, neither decision had adequately addressed the substantial change in the wording of regulation 2(2) in force from 16 November 1992 onwards which at the very least stopped the appellants counting as "patients" from that date onwards.

33. Mr Scoon on the other hand maintained that the tribunals had each been right in the approach they took: the fact or the actual extent of the funding by a Health Authority, while important, was not the conclusive factor. The important thing was whether any arrangement at all had been made by the Secretary of State for a person to be provided with treatment as an in-patient in a hospital or similar institution. If the answer to that was yes, then the wording of the regulation required that person to be regarded as "maintained free of charge" so as to deprive them of income support regardless of the actual facts as to whether the cost of their maintenance was being met out of funds provided by the Secretary of State or not. This followed from the way the final part of regulation 2(2) was worded, which made it clear that the only exception to what was agreed to be a deeming provision, saying that people had to be regarded as being maintained free of charge even though they might not be, was the case of a private patient paying for his own accommodation and services in an NHS hospital under section 65. Since that wording remained in the same form in the altered regulation from 16 November 1992 onwards, it should be inferred that the intention was that the effect should remain the same. Consequently neither tribunal decision could be said to be misdirected or perverse on this fundamental point, and on that each should be confirmed.

34. Miss Harris' submissions are in my view to be preferred in the context of cases such as those now before me. In my judgment there is no existing authority that obliges me to hold otherwise, and to impose the degree of artificiality that Mr Scoon suggested was required by the wording of this provision would be objectionable.

35. The meaning of "maintained free of charge while undergoing medical or other treatment as an in-patient … pursuant to arrangements made by the Secretary of State" or "… under the National Health Service Act 1977" has as I say been considered in several cases in the context of different facts. In R(S) 4/84, [1983-84] CDR 466, it was made clear that the condition as to maintenance and the receipt of treatment is to be tested by reference to an entire day of 24 hours, not any less period, so that periods of maintenance while receiving hospital in-patient treatment of less than a day would fall to be disregarded. That was referred to in CS 249/89, where the claimant was an in-patient provided with his entire accommodation free on a 24-hours-a-day basis while he was in an NHS hospital for treatment. He could also have had hospital meals free, but instead with the agreement of his doctors his meals were taken in to him by his wife at his own expense because he found them better for him. The Commissioner decided that the effect of the final part of regulation 2(2) after paragraph (b) (what he called the "full-out words") was to treat him nonetheless as being an in-patient maintained free of charge, since he was not a private patient paying for his own accommodation. He commented:

"10. I am, aware, of course, that in R(S) 4/84 the Commissioner stressed that, if a person was full-time in a hospital, he was maintained free of charge, and escaped the expenses normally incurred by someone living outside the hospital, and on this ground justified the reduction in benefit. Presumably, even today that is the rationale behind the reduction in benefit imposed by regulation 4. However, since R(S) 4/84 was decided, regulation 2(2) has been amended by the addition of the 'full out' words. Their effect is to treat a person as being maintained free of charge, whether or not such is the case, provided only that he is actually in the hospital 24 hours a day."

36. In case R(IS) 7/92, [1991–92] CDR 310, the mentally ill claimant was discharged out of a psychiatric hospital into a private registered mental nursing home, and the facts and evidence recorded by the Commissioner in paragraph 9 at pages 314-5 made it clear that the Health Authority had in that case been directly involved in the arrangements for the transfer and had a heavy continuing involvement, reserving full nomination rights and paying two-thirds of the cost of the patients' maintenance and care: as the Commissioner commented the evidence showed that the Health Authority had played the predominant part in relation to the registration of the home as a mental nursing home, the consultant psychiatrist reported to it on the standard of care, and the arrangements made directly between the Health Authority and the home extended to both the maintenance and care of the patients and also their treatment. Thus as the Commissioner recorded at the conclusion of paragraph 9 on page 315

"… the claimant's care and nursing in Caerleon Court was pursuant to an arrangement made by the Health Authority."

37. In paragraph 11 he considered the meaning of "free of charge" and the "full-out words" by reference to the earlier decision in CS 248/89, and held that those words had to be construed as applying both to people receiving treatment in National Health Service hospitals and to people receiving treatment and care in other institutions pursuant to arrangements made by the Secretary of State. As he said:

"I have considered both the object of the regulations and the history of the amending regulations. The object of the regulations was that a person should not receive a double advantage out of public funds, namely free hospital treatment and the cost of maintaining himself outside hospital."

38. With the qualification that the Commissioner's reference there to "free hospital treatment" in its context plainly refers to the situation where the person is receiving not only his medical treatment but also his basic maintenance and subsistence needs provided for him in the hospital at the same time, I would respectfully agree that that must be the purpose of the provision. That qualification is I think necessarily implied in the Commissioner's formulation, since otherwise if the person was being made to pay for the cost of his accommodation and food (what are nowadays sometimes referred to as "hotel costs", but in this context basic subsistence) while in hospital the "double advantage out of public funds" would not arise. The sole purpose of income support is to provide for a person's basic maintenance and subsistence, and the exclusion while being maintained free of charge in hospital has in my view to be construed in that light.

39. In White v CAO already cited, it is plain from the terms of the agreement entered into between the Health Authority and the proprietor of the nursing home, expressly set out at [1993-94] CDR 482 to 483, that it was an agreement with the Health Authority for the provision of hospital accommodation as well as care, in exchange for a block grant made by the Health Authority which retained nomination rights to not less than 18 beds reserved expressly for use by residents nominated by the Health Authority. There was no doubt or dispute in that case, nor could there have been, that this was an arrangement made by the Health Authority on behalf of the Secretary of State for the provision of hospital accommodation under section 3(1)(a) in conjunction with section 23(1) of the 1977 Act: see the judgment of Ralph Gibson LJ at page 493.

40. Similarly in Botchett v CAO already cited, it is clear from the Commissioner's decision (CIS 576/92 paragraph 6) that the arrangements made by the Health Authority fell under this head, and that it had a continuing involvement to a degree quite unlike that in the cases before me. In that case, the home itself had formerly been part of a National Health Service hospital. The Health Authority retained ownership of it, but leased it to a private trust which took over the running and management of the establishment under an agreement indistinguishable from that in the White case, in that it extended to accommodation as well as care, and entailed a continuing involvement and responsibility on the part of the Health Authority itself. In that context, the Court of Appeal confirmed that the appellant continued to undergo "medical or other treatment as an in-patient … under the National Health Service Act 1977" notwithstanding the transfer of the work of actually providing this from the Health Authority to the trust. As Evans LJ with whom the other members of the Court of Appeal agreed observed, the Health Authority accepted a continuing liability for the cost of maintaining the appellant in the home whether or not she was entitled to receive income support: [1995-96] CDR 502 at 509.

41. In my judgment, none of those cases obliges me to hold, contrary to the fact, that the claimants in the cases before me are or have been receiving free in-patient treatment while being maintained free of charge in Middlefield House under arrangements made by the Secretary of State, or under the National Health Service Act itself. The only evidence before the tribunal as to the involvement of the Health Authority was that the psychiatric staff had of course been parties to an assessment process of all the individual patients in conjunction with the local authority to determine the most suitable arrangements for each of them on discharge when the hospital was in the process of being closed, and could be assumed to have approved those arrangements or at least acquiesced in them. Apart from that, there was the evidence of the agreement to fund limited day care services for some, but not all, of the residents of Middlefield House, originally by arrangement with the proprietor of Middlefield House itself referring specifically to "day services" only (see pages 59 to 62 of the appeal file in CIS 3325/00) and later under the more comprehensive agreement between the Health Authority and the Council under section 28A of the 1977 Act which superseded it.

42. Nothing in either of those agreements, or in the evidence at all, constituted or showed any kind of agreement or arrangement by or on behalf of the Secretary of State for the provision of hospital or other accommodation under section 3(1)(a) or (b) of that Act comparable to what there was in the cases above referred to. All that there was here was a limited arrangement for the provision of "facilities" under section 3(1)(e) which did not involve any contribution to accommodation or maintenance and were for the provision of limited supplemental care during the daytime only, not care or maintenance on a 24-hour-a-day basis. There was no evidence whatever, before either tribunal, of any agreement between the Health Authority and either Middlefield House or anyone else for the provision of any accommodation or maintenance for any of these appellants at any time after they became residents of Middlefield House, or of any continuing responsibility or acceptance of liability on the part of the Health Authority for any part of the cost of their accommodation, maintenance or basic subsistence.

43. The provisions of regulation 2(2) of the In-Patients Regulations are, in each of their forms both before and after 16 November 1992 a syntactical impossibility to construe entirely literally, since the final clause in the "full-out words" beginning "such a person" tries to refer back to the phrase "maintained free of charge" which it is itself supposed to be defining; and fails altogether to make clear how many of the conditions embodied in the previous parts of paragraph (2) down to the end of sub-paragraph (b) are intended to apply in identifying the "such a person" to which the final clause refers back. It cannot be just to "a person" meaning any person at all, since that would be absurd. It seems to me equally absurd to make it refer back, as Mr Scoon submitted, to any person undergoing medical or other treatment as an in-patient in any hospital or similar institution under the National Health Service Act, or pursuant to arrangements made by the Secretary of State, if those expressions are to be construed so widely as to extend to the kind of arrangements under which these appellants became residents of Middlefield House or receive care there.

44. It seems to me therefore that the final part of regulation 2(2) must be construed in conjunction with the remainder of the paragraph, with an eye to the underlying purpose of the provision as explained in the earlier Commissioner's decisions referred to above; namely that a person whose maintenance (in the sense of provision for the basic necessities of everyday living, which is the purpose of income support) is being provided for him free of charge in a hospital or by arrangements made under the National Health Service Act while he is receiving treatment as an in-patient should not also get income support for his basic maintenance at the same time, because otherwise he would be getting double provision out of public funds for the same thing. Consequently, I accept Miss Harris' submission that before regulation 2(2) can operate to deprive a person receiving treatment of entitlement to income support it must be shown that the provision under the National Health Service Act itself, or under "arrangements" made by the Secretary of State or on his behalf under that Act, extends not only to the provision of healthcare services in the form of medical treatment or additional day care, but also to the provision of maintenance in the institution where he is receiving that treatment or care. In other words the expressions "pursuant to arrangements made by the Secretary of State" in paragraph (b) of the earlier form, and "under the National Health Service Act 1977" in paragraph (a) of the later, qualify not only the word "treatment" but also the word "maintained" nine words before.

45. This in my judgment provides the most consistent construction with the express exception in the final clause referring to section 65 of the 1977 Act, which makes it clear that the important point is whether a person's "accommodation and services", not just his or her medical treatment, are being provided in some other way than free under the National Health Service Act. It also means that the only words that have to be placed in suspense when first reading through the paragraph until one gets to the final clause are "free of charge", the function of the final clause beginning "and such a person" being thus reduced to the minimum of artificiality in defining what those words are to be taken to mean and clear up borderline questions such as arose in case CS 248/89.

46. Reading the two forms of regulation 2(2) in that way appears to me the most satisfactory to confine the artificiality of the deeming provision in the final clause within rational bounds, and avoid what appear to me otherwise to be wholly unnecessary absurdities. Doing so, it becomes clear that the evidence before each tribunal session in these cases fell far short of establishing that any of the appellants had at any material time been maintained free of charge while undergoing medical or other treatment as an in-patient in Middlefield House pursuant to arrangements made by the Secretary of State in terms of the pre-16 November 1992 formulation, or under the National Health Service Act 1977 itself in terms of the later one. In the first place the evidence did not establish that there was any arrangement or provision by or on behalf of the Secretary of State for their care or treatment on a 24-hour-a-day basis so as to meet the condition as explained in R(S) 4/84. Secondly, nor could they be said to be being maintained there free of charge pursuant to such arrangements or under that Act, since the evidence did not show the existence of any arrangement or provision under the Act extending to their maintenance, which in my judgment is necessary before the deeming provision in the final part of regulation 2(2) can begin to bite. Nor in my judgment can the mere approval of arrangements by other people for a patient's continuing care on discharge from hospital, into the hands of relatives, a nursing home or whatever, make the health authority the "provider" or "arranger" of that care or the person's maintenance on a continuing basis so as to make the regulation apply when there is in fact no express agreement, continuing involvement or acceptance of liability at all such as there was in White and Botchett described above.

47. Accordingly in my judgment the tribunal on each occasion misdirected themselves as to the proper effect of the regulation. On the evidence before them, the decision in each case should have been that the claimant's continuing previous award of income support had not been rightly reviewed and terminated by the adjudication officer. I accordingly set aside the tribunal decision in each case as erroneous in law and substitute my own decision to that effect: the consequence is that the previous awards of income support on the footing that each claimant was a person in residential or nursing care will have remained in force at all material times unless or until otherwise validly reviewed, altered or terminated.

48. The appeals in all thirteen cases are thus allowed and my own decisions substituted accordingly. As this litigation has already been very prolonged and the issues well ventilated I abridge the Secretary of State's time under regulation 33 of the Commissioners' Procedure Regulations 1999 for applying (if so advised) for leave to appeal against this decision to one month from the date of its issue instead of three.

(Signed)

P L Howell

Commissioner

3 August 2001