Fenella Morris QC and Rose Grogan successfully represented the Respondent in an appeal concerning the interpretation and application of s.3(1)(b) of the NHS Act 2006. In R (Whapples) v Birmingham Crosscity Clinical Commissioning Group and Secretary of State for Health  EWCA Civ 435 the Appellant argued that the CCG owed her a duty to purchase or otherwise pay for accommodation in a private flat pursuant to the CCG’s duty under s.3(1)(b) NHS Act 2006 to provide “other accommodation” (that is not hospital accommodation). The Appellant, who is paralysed from the neck down, argued that she could only be treated outside of the West Midlands because she had PTSD triggered by, among other things, treatment or other care provided by those connected with the NHS in Birmingham. She argued that because she had a “primary health need” as defined under the National Framework for Continuing Healthcare, the CCG had a duty to provide for all of her needs, including her need for a new flat outside of the West Midlands. The CCG’s case was that it had lawfully concluded that there were other public bodies which could provide her housing and so a new private flat was not necessary to meet the Appellant’s reasonable requirements. The Court of Appeal rejected the Appellant’s case and found that the National Framework did not require the CCG to fund private accommodation. Furthermore, the CCG had lawfully considered alternative options available to the Appellant and concluded that accommodation was not reasonably required or that it was not necessary to provide it.
The judgment, which can be read here, considers the interaction between various public law duties to provide accommodation including s.3 NHS Act 2006 and s.21 National Assistance Act 1948.