R (Whapples) v Birmingham Crosscity Clinical Commissioning Group and Secretary of State for Health

The Court of Appeal dismissed Ms Whapples appeal against the decision of Sales J that she was not entitled to have her private accommodation paid for by the NHS as part of her continuing healthcare.  The consequence of finding in Ms Whapples’ favour would have been that the NHS would have paid for her accommodation irrespective of her means.  In contrast, if Ms Whapples’ accommodation was provided by a local authority, it would be means-tested.  Ms Whapples argued that s. 3 of the National Health Service Act 2006 and the Secretary of State’s National Framework on NHS Continuing Healthcare created a duty to fund her accommodation.  The Court of Appeal rejected this interpretation of the National Framework and accepted the Secretary of State’s argument that the availability of local authority accommodation under s. 21 of the National Assistance Act 1948 was relevant.  The Court also rejected the argument that a person’s home was a care home for the purposes of the Care Standards Act 2000.  The Court left open the question whether private accommodation ever falls within the scope of NHS services under the 2006 Act.

The case had potentially very reaching financial consequences for NHS bodies.

Ivan Hare represented the Secretary of State for Health in the Court of Appeal.