Mrs A Collinson v Bespoke Health & Social Care Ltd and Mr N Bewlay: 1806415/2024
EMPLOYMENT TRIBUNALS
Case No 1806415/2024
Between
Mrs A CollinsonClaimantBespoke Health & Social Care Ltd and Mr N BewlayRespondent
Before
Employment Judge BuckleyIn person for claimantDate 17 June 2025
JUDGMENT
[1]There was no service provision change on 30 June 2024 under Regulation 3(1)(b) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) and therefore no relevant transfer.[2]The claims against the second respondent are DISMISSED.[3]The claim for automatic unfair dismissal under regulation 7 of TUPE is DISMISSED.[4]The claims for unfair dismissal and for a redundancy payment against the first respondent continue and will be listed for hearing.[5]A separate case management order has been issued.
REASONS
[1]The claimant (Mrs Collinson) was employed as a support worker by the first respondent (Bespoke) from 6 July 2017. Her duties were to provide care to individuals with complex care needs in their own homes.[2]The first respondent (Bespoke) is a provider of care at home for those with complex care needs. It is commissioned by Integrated Care Boards (ICBs) and formerly Clinical Commissioning Groups (CCGs), to provide care packages to individuals in their homes.[3]The relevant ICB in this case is the North Yorkshire Integrated Care Board and the relevant CCGs were the East Riding CCG and the Vale of York CCG. For the purposes of these findings, the ICB effectively stepped into the Vale of York CCG’s shoes at some stage between 2020 and 2023. I use ICB and CCG interchangeably in this decision.[4]The second respondent (Mr Bewlay) is paralysed from the neck down and has associated severe health problems. Because of this Mr Bewlay has been assessed by the ICB/CCG or its equivalent predecessor as eligible for NHS Continuing Healthcare Funding for 24/7 specialist spinal care.[5]From about 2020 until 30 June 2024. Mr. Bewlay’s care was provided by carers employed by Bespoke. From 1 July 2024 his care was provided by carers that he engaged on a self-employed basis. Mrs Collinson was one of the carers employed by Bespoke to care for Mr. Bewlay.[6]From 1 July 2024 she no longer had a job. Bespoke said that her employment had transferred to Mr. Bewlay. Mr. Bewlay said that it had not.[7]Mrs Collinson has brought a claim for unfair dismissal and a claim for a redundancy payment against both respondents.[8]The question for me to determine is whether there was a service provision change on 30 June 2024.[9]The structure of this decision is as follows:- Title Page Introduction 2 The preliminary issue for me to determine 3 The legal framework - TUPE 3 The legal framework - NHS continuing healthcare, personal 8/Annex health budgets and direct payments Evidence 8 Findings of fact 13 Submissions 22 Discussions and conclusions 25 Consequences of there being no TUPE transfer 30 The preliminary issue for me to determine[10]The substantive preliminary issue for me to determine was identified in the order of Employment Judge Ayre of 31 January 2205 as ‘whether there was a service provision change falling within Regulation 3(1)(b) of TUPE on 30 June 2024 when the first respondent stopped providing care services to the second respondent’. That is known as a service provision change (SPC).[11]At the start of the first day of the hearing Mr. Morgan told me that the first respondent relied only on regulation 3(1)(b)(iii) on the basis that Mr. Bewlay was the client before and after the relevant date. As Mrs Collinson also asserts that there was a SPC, I have not limited my findings to regulation 3(1)(b)(iii).[12]The parties agreed that I would need to determine the following issues: 12.1. Who was the client? The first respondent says that the client was the second respondent. 12.2. Was there, immediately before the 30 June 2024 an organised grouping of employees which had as its principal purpose the carrying out of the activities concerned on behalf of the first respondent? 12.3. Was the claimant assigned to that grouping? 12.4. Did the client intend that the activities would, following the 30 June 2024, be carried out by the second respondent, other than in connection with a single specific task of short term duration. 12.5. Did the activities cease to be carried out by the first respondent and are carried out instead by the second respondent? 12.6. Are the activities carried out by the second respondent fundamentally the same as those carried out by the first respondent? The legal framework - TUPE Regulation 3(1)(b) - SPC[13]This summary of the relevant law draws heavily on the summary in Mansfield Care Ltd v Newman and ors and Rollandene Ltd v Newman and ors [2024] EAT 128.[14]Uder regulation 2(1) TUPE a ‘relevant transfer’ is defined as: a transfer or a service provision change to which these Regulations apply in accordance with Regulation 3…[15]A transfer by way of service provision change (“SPC”), is defined by regulation 3(1)(b) TUPE as: a situation in which-(i) activities cease to be carried out by a person (“a client”) on his own behalf and are carried out instead by another person on the client’s behalf (“a contractor”);(ii) activities cease to be carried out by a contractor on a client’s behalf and are carried out instead by another person on the client’s behalf (“a subsequent contractor”); or(iii) activities cease to be carried out by a contractor or a subsequent contractor on a client’s behalf […] and are carried out instead by the client on his own behalf, and in which the conditions set out in paragraph (3) are satisfied.[16]The conditions in paragraph (3) are:(a) Immediately before the service provision change- (i) There is an organised grouping of employees situated in Great Britain which has as its principle purpose the carrying out of the activities concerned on behalf of the client’ (ii) The client intends that the activities will, following the service provision change, be carried out by the transferee other than in connection with a single specific event or a task of short-term duration; and(b) The activities concerned do not consist wholly or mainly of the supply of goods for the client’s use.[17]As Elias LJ pointed out in McCarrick v Hunter [2012] EWCA Civ 1399, the extension of protection to employees where there is no transfer of an undertaking (or part) for the purposes of regulation 3(1)(a) but where there is a change of service provision: 11. ... has no equivalent in the Directive. It applies where a client contracts out a service, or takes it back in-house, or transfers the service from one provider to another. Employees assigned to the service transferred will become employed by the new employer providing that service. In a case where the service is brought back in-house that will be the client itself. The concepts of an undertaking and a service provision are not mutually exclusive: many transfers of a service provision will also constitute a transfer of an undertaking, but this will not necessarily be the case.[18]In construing the legislative provisions relating to a SPC transfer, Elias LJ further observed: 22. ... there is ... no conflict between a straightforward construction and a purposive one: the natural construction gives effect to the draftsman's purpose. There are no underlying EU provisions against which the statute has to be measured. The concept of a change of service provision is not complex and there is no reason to think that the language does not accurately define the range of situations which the draftsman intended to fall within the scope of this purely domestic protection.[19]In taking this view, Elias LJ agreed with the views expressed by Underhill P (as he then was) in Eddie Stobart Ltd v Moreman [2012] ICR 919, at paragraph 19: 19. ... No doubt the broad purpose of TUPE is to protect the interests of employees by ensuring that in the specified circumstances they “go with the work” (though the assumption that in every case that will benefit, or be welcome to, the employees transferred is not universally true). But it remains necessary to define the circumstances in which a relevant transfer will occur, and there is no rule that the natural meaning of the language of the Regulations must be stretched in order to achieve transfer in as many situations as possible.[20]In contrast to regulation 3(1)(a), in defining a SPC, the legislative language focuses on the “activities”, (and see paragraph 30 Metropolitan Resources Limited v Churchill Dulwich and ors [2009] ICR 1380 EAT). In Ceva Freight (UK) Limited v Seawell Limited [2013] CSIH 59, the Inner House provided guidance as to the approach that an ET is to take when determining whether there has been a SPC for the purposes of regulation 3(1)(b):[29]In our opinion, ..., in considering whether this condition may be satisfied in a particular case an appropriate starting point will be the “activities”. The term “activities” is, of course, also used in paragraph (1) of regulation 3 as a central element in defining a service provision change. In that context it is in our view evident that it refers to the prestations by way of service or services which (in the variety of service provision change in the present case) required to be provided by the contractor in terms of his contractual arrangements with the client and which, following the cessation of those arrangements, are then performed by the client himself on his own behalf. ...[30]Having thus identified the scope and nature of the activities, the focus must then pass to the manner in which the contractor has arranged for the performance of the service prestations, or, perhaps more technically, reflecting the wording of the regulations, how the activities are “carried out”. Plainly, in very many cases the employees engaged in providing the services to the client ... will also be providing services to other clients or customers. The extent to which their working time is devoted to the client will vary greatly. Accordingly, for obvious reasons, the notion that there be a transfer of their contracts of employment would be vested with much uncertainty. Hence one finds the requirement in paragraph (3)(a)(i) of regulation 3 that there be “an organised grouping of employees” having as its “principal purpose” the carrying out of the activities in question. The requirement is necessary in order to give practical definition - or to set discernible parameters - to the important event, from the perspectives of each of the contractor, the client ... and the employee, of a transfer of the contract of employment.[31]Having regard to that consideration we agree with the view expressed by the Employment Appeal Tribunal at paragraph 18 of its judgment in Eddie Stobart Ltd v Moreman that the concept of an organised grouping implies that there be an element of conscious organisation by the employer of his employees into a grouping - of the nature of a “team” - which has as its principal purpose the carrying out de facto of the activities in issue. 32. ...[33]It appears to us to follow from the structure and wording of the regulations that where the activities are carried out by the collaboration, to varying degrees, of a number of employees who are not organised as a grouping having as their principal purpose the carrying out of the activities for the client, it is not legitimate to isolate one of that number on the basis that the employee in question devoted all, or virtually all, of his or her working time to assisting in the collaborative effort. ... 34. ... where the activities are carried out by a plurality of employees, the reference in the definition to a single employee does not, in our view, warrant disaggregation of that group of employees. 21. In focusing on the “activities” in issue, for the purposes of regulation 3(1)(b)(ii), it is not necessary that these should constitute all the activities carried out by the outgoing provider; as Simler J (as she then was) observed in Arch Initiatives v Greater Manchester West Mental Health NHS Foundation Trust and ors [2016] ICR 606 EAT: 17. ... The word “activities” is not defined, and nor is it qualified in any way by words that could have been used to qualify it. For example, the provision could have said “the activities”, “all of the activities” or “the principal activities”. There is nothing in the Regulations that expressly requires that the relevant activities should constitute “all of the activities” carried out by the outgoing contractor. 22. Under subparagraph (iii) the ‘client’ is the person on whose behalf the activities are carried out before the transfer, and the person who carries out the activities after the transfer. 23. As the EAT pointed out in paragraph 25 of Nottinghamshire Healthcare NHS Trust v(1) Hamshaw(2) Perthyn(3) Choice Support UKEAT/0037/11/JOJ the question is ‘on whose behalf’, not ‘for whose benefit’ those activities are carried out. ‘Client’ in regulation 3(1)(b) does not mean the beneficiary or end-user of a service, see CT Plus (Yorkshire) CIC v (1) Mr. J Black and others (2) Lincolnshire Road Car Ltd t/a Stagecoach UKEAT/0035/16/DM) at paragraph 26: 26. I should say a word about the meaning of “client”. In everyday parlance, this means the beneficiary or end-user of a service. We speak of a social worker’s client or a solicitor’s client. But this is not its meaning in the context of the SPC provisions. They apply where a client contracts out a service, takes it back in-house or transfers the service from one person to another (see Hunter at paragraph 11). “Client” here means an organisation that is in a position to carry out activities either itself or by commissioning them from others to carry out those activities on its behalf. 24. That does not mean that the end-user or beneficiary could not be the client within the meaning of regulation 3, but they would not be the client by virtue of being the end-user or beneficiary of the relevant service. 25. The client for the purposes of regulation 3(1)(b) has to be the same client before and after the transfer (Hunter and Horizon Security Services v Ndeze UKEAT/0071/14). The focus of regulation 3(1)(b) is on the client’s intention (Hunter). 26. The EAT in Jinks v London Borough of Havering UKEAT/0157/14/MC was dealing with an appeal from a decision of an Employment Judge to strike out a claim at a preliminary hearing on the basis that it had no reasonable prospects of success. The Employment Judge heard no evidence and based the ruling on the pleaded cases of both parties. The EAT concluded that the Judge had misdirected himself in law, 27. In Jinks the Council contracted out the management of a site which included Romford Ice Rink and an associated car park to Saturn Leisure Ltd (Saturn). Saturn sub-contracted the management of the car parking to a company called Regal Car Parks Ltd (Regal). Regal made the car parking spaces available to others, primarily by issuing permits to the staff of the local NHS Trust. 28. The ice rink closed. The car park activity continued for a few weeks. Saturn then gave up occupation of the whole site, the Council took control of the site and closed the car park. The Council later granted a license to the NHS trust to use the car park for its staff and a few months later converted it into a public car park. 29. The claimant asserted his employment had transferred from Regal to the Council. 30. At a preliminary hearing the Judge struck out the claim on the basis that only Saturn could have been the client of Regal for the purposes of regulation 3(1)(b) and that there was no contractual relationship between Regal and the Council. 31. The EAT held at paragraph 24 that the Employment Judge ‘took an impermissible short cut’ by treating the client of a sub-contractor as necessarily being, and only being, the contractor to which it was contractually bound to provide a service. The EAT held that ‘The Horizon case supports the conclusion that the strict legal or contractual relationships do not necessarily answer the Regulation 3 question.’ 32. The EAT in Jinks cited paragraph 41 and 42 of Horizon in which Judge Eady held: “41. … it must be right that the assessment of who is the client in a service provision change case will generally be a matter for the Employment Tribunal as a finding of fact. Further, it may well be that there will be situations where [there] might appear to be more than one client, perhaps in an agency situation. In such cases, however, the Tribunal would need to ask (as in the Denton case) who was the real client. …[42]Asserting, as PCS has done, that there is a subcontractor relationship does not answer the question. Regulation 3(1)(b) plainly recognises subcontractor cases and the possibility of a service provision change in such circumstances is thus envisaged under (iii). That, however, is about the change in provider; it does not define the client.”33. The EAT in Jinks derived three principles from that decision: 33.1. The question of who is the client for Regulation 3 purposes is one of fact, not law. 33.2. There could be more than one ‘client’ in any given case. 33.3. Regulation 3(1)(b)(iii) read together with regulation 2(1) show that the person on whose behalf services are provided by a sub-contractor may not necessarily be the contractor from whom the sub-contract is held.34. In Ottimo Property Services Ltd v Duncan [2015] IRLR 806 EAT, it was held that, pursuant to section 6 of the Interpretation Act 1978, this is to be read so as to include the plural, “clients”. Whether singular or plural, however, “the client” must be identifiable as the specific client on whose behalf the activities are being carried out; see McCarrick at paragraphs 37-38. Where “the client” is said to comprise more than one legal entity, it must, therefore, still be possible to identify a commonality of intention for the purposes of regulation 3(3)(a)(ii); see Ottimo at paragraph 48, although the absence of a single contract would not necessarily be fatal to the finding of commonality. The legal framework – NHS continuing healthcare, personal health budgets and direct payments.35. I have put the underpinning legal framework in an annex to the decision. Evidence36. The claimant and the second respondent gave evidence. For the first respondent I heard from Madeleine Banfield, HR Business Partner and Rachel Robertson, Managing Director for the North of Acuity Care Group, the first respondent’s parent company.37. I took account of a bundle of documents. For the reasons given orally in the hearing I gave permission to the first respondent to rely on a contract which was produced during the hearing and to the second respondent to rely on a letter from the ICB which had been sent to the tribunal but had not been disclosed and was not in the bundle.38. The witness statement of Rachel Robertson was late. It was due to be provided by 25 April 2025. At 4.57pm on 16 May, the last working day before the hearing, the first respondent filed the statement with the tribunal along with an application to rely on the statement.39. That application stated, ‘One of the questions that will need to be determined by the tribunal at the preliminary hearing is who the ‘client’ was for the purposes of [TUPE]. In order to answer that question, the tribunal will need to fully understand the role of the ICB in provisioning the Second Respondent’s care whilst it was provided by the First Respondent and facilitating the Second Respondent’s decision to move to a PHB.’40. It is not entirely clear why the first respondent had not anticipated that this evidence was required at an earlier date.41. The claimant and the second respondent did not object to the first respondent relying on that statement. 42. I needed to determine the identity of the client and the role of the ICB was relevant to that issue. I took the view that it was unlikely that the claimant and the second respondent, as litigants in person, would have prepared submissions and cross-examination on Ms Robertson’s evidence on the role of the ICB in any event. For those reasons and for the reasons given orally in the hearing I decided that the evidence was relevant and that there was limited prejudice in late disclosure. I allowed the first claimant to rely on Ms. Robertson’s evidence.[43]In responding to the application the claimant and the second respondent indicated that they did not disagree with the content of Ms Robertson’s witness statement. On that basis Mr. Morgan proposed that he did not need to call Ms Robertson.[44]The statement did not relate to this particular case but contained a number of general assertions about the decision-making roles of the ICB and the rights of the individual patient. On that basis I was not satisfied that it was appropriate to simply accept those assertions on the basis that Mr. Bewlay and Mrs Collinson, as litigants in person, having been provided with a statement at very short notice, did not object to its contents. I therefore asked Mr. Morgan to call Ms Robertson. My view on the witness evidence[45]In my view all witnesses were doing their best to give truthful evidence to the best of their recollection. Ms Robertson’s evidence[46]Much of Ms Robertson’s evidence was helpful as general background, and I accept that she was doing her best to describe the role of ICBs accurately as she understood it.[47]I placed little weight on Ms Robertson’s evidence where she gave evidence on what a patient, rather than the ICB, had the ‘right’ to decide, for the following six reasons.[48]First, her statement related to the position of the ICB and patients in general, rather than in relation to Mr. Bewlay. Ms Robertson started work for the first respondent on 1 July 2024. She had had no involvement with this case and her evidence related to the position in general.[49]Second, in terms of the general position, the question of whether or not it is the ICB or the patient that makes the decision on a particular matter or has ‘the right’ to make a decision on a particular matter is determined by the underlying legal framework. Decisions as to what the NHS spends its money on are heavily regulated. Ms Robertson’s opinion, as the managing director of a care company, is not determinative in relation to who has the right to make decisions about who the ICB will commission to provide NHS services and who has the right to make the decision to manage a personal health budget by means of a direct payment.[50]Third, I asked Ms Robertson if she was familiar with the underlying legislation. She said that her evidence was more about ‘practically what happens.’ As the managing director of a care company, my view is that she would have limited experience of how, in practice, the ICB operates in its decision making processes in relation to(a) the decision on which provider to commission (that decision taking place before a provider is commissioned, and with no involvement from the provider) and(b) the decision on whether or not to move to direct payment (that decision having no involvement from a provider).[51]Fourth, in relation to what happens ‘in practice’, NHS Continuing Health Care involves the expenditure of significant sums in a context of scarce public and NHS resources. Detailed regulations and a Framework, to which the ICB must have regard, govern the decision-making powers of the ICB and the extent to which it must have regard to the views and preferences of an individual patient. In my opinion it is highly unlikely that the ICB does not generally act in accordance with the applicable regulations and Framework. The way in which the ICB and Mr. Bewlay conducted themselves was entirely consistent with those regulations and that Framework.[52]Fifth, Ms Robertson did not limit her evidence as to what happened in practice. For example she says at paragraphs 4 and 6: If the person being supported wishes for the management of their care to be moved to another provider, or take it on themselves, they have the right to make that decision. It is them that makes that decision, rather than the ICB. We sometimes get clients wanting to move the management of their care to a Personal Health Budget (“PHB”). This involves the person being supported taking over responsibility for managing their care from us and effectively taking it in house. The person we support has the right to make this decision. When this happens, the ICB/Local Authority will assess the suitability of that care package for moving to a PHB. The decision to move to PHB is guided by the principles of personalisation, clinical appropriateness, and statutory responsibility, but ultimately it is the person we support’s decision whether to move to a PHB.[53]In those paragraphs she is giving evidence as to what rights a patient has, and who the ultimate decision maker is. That is not simply evidence of what happens in practice.[54]Sixth, Ms Robertson’s evidence in her witness statement was inaccurate or misleading in some respects. I do not suggest that this was deliberate. For example, she elides a move to a personal health budget with a move to direct payment (see paragraph 6). She also states that a patient has ‘the right’ to decide to ‘take the management of their care in house’, which she clarified in evidence to mean move to a direct payment. That is not an accurate reflection of the legal position, with which the ICB is obliged to comply. She accepted in evidence that an individual could not insist on a move to a direct payment.[55]Seventh, in relation to Ms Robertson’s evidence about the individual’s right to move their care to a different provider, I summarised to her my understanding of how a notional payment works, in that the ICB holds discussions with the individual with care needs and then the outcome of those discussions is an agreement as to what is the best way to secure services, but then the ICB holds the budget and they apply it in accordance with the outcome of those discussions. Ms Robertson agreed that was how a notional budget worked. Mr. Bewlay’s evidence[56]In relation to Mr. Bewlay’s evidence, Mr. Morgan put to him a number of assertions about what Mr. Bewlay’s ‘legal rights’ were. Some of those statements were inaccurate.[57]Mr. Bewlay’s understanding of the position, as set out in his witness statement, was that he had a right to move to a direct payment under the Care Act. His understanding is incorrect for two reasons.[58]First, as Mr. Bewlay has been assessed as eligible for Continuing Health Care then his needs are met by the NHS, not the local authority, so the Care Act 2014 is not the applicable legislation. Direct payments for Continuing Health Care are governed by the National Health Service (Direct Payments) Regulations 2012 (the 2012 Regulations).[59]Second, there is no legal right to receive funding through a direct payment. There is a qualified legal right to a personal health budget. An ICB has a duty to ensure that it is able to arrange for the provision of Continuing Health Care by means of a personal health budget. If a request is made for a personal health budget, that must be granted save to the extent that it is not appropriate to secure provision of Continuing Health Care by that means in the circumstances (regulation 32B (4) of the 2012 Regulations.[60]An individual has no right to have the personal health budget managed by the making of a direct payment. Under the 2012 Regulations the ICB has to decide which of the three ways would be the most appropriate way to manage the personal health budget (regulation 32B(4a) of the 2012 Regulations).[61]Under regulation 3(1) a direct payment can be made to a person for whose benefit anything may or must be provided by an ICB under the 20026 Act if that person consents to the making of a direct payment. When deciding whether or not a direct payment should be made, the ICB must have regard to a number of factors including whether it is appropriate for a person with that person’s condition, the impact on that person’s life and whether a direct payment represents value for money.[62]Mr. Morgan put to Mr. Bewlay in cross-examination that, regardless of the fact that he had been misinformed, when responsibility for his healthcare moved to the Vale of York CCG, he had the power under the Care Act to decide who was going to manage his care. That was an inaccurate statement. The Care Act is not the applicable legislation. In relation to NHS Continuing Healthcare there is no statutory equivalent of section 30 of the Care Act 2014.[63]Mr. Bewlay’s response to that question was that he was asked to choose between three providers.[64]Mr. Morgan’s next question was ‘Putting aside the choice that Vale of York gave you, whatever Vale of York told you, you had the legal right to choose who was in charge of the provision of your care’. That, again was an inaccurate statement of the law.[65]Mr. Bewlay’s response was no, it was a guided choice, he had to pick one of three.[66]Mr. Morgan then asked Mr. Bewlay what he had been misinformed about, and Mr. Bewlay replied that they had said that he could not keep the self-employed supply of care and that he had to have a company. He said that he was misinformed and that was incorrect.[67]Mr. Morgan then again put to Mr. Bewlay the inaccurate statement that ‘The true position was that you could have decided under the Care Act who was in charge of managing your care’ and to that Mr. Bewlay said yes.[68]Leaving aside the ethics of repeatedly putting an inaccurate statement of the law to a litigant in person, I place little weight on the fact that after being repeatedly told by a barrister what the ‘true’ legal position was, Mr. Bewlay eventually agreed.[69]Mr Morgan also drew Mr. Bewlay’s attention to paragraph 4 of Ms Robertson’s statement. He put to Mr. Bewlay that the respondent’s position was that at the time when the ICB was paying for Bespoke to arrange his care, had Mr. Bewlay decided at that stage that he wanted to change providers or take responsibility for his care over himself, by way of a direct payment, that decision was with Mr. Bewlay. Mr. Morgan asked Mr. Bewlay if he accepted that and Mr. Bewlay replied, ‘I accept that.’[70]I have identified the difficulties with Ms Robertson’s evidence above. The fact that Mr. Bewlay accepted that evidence when it was put to him does not resolve those difficulties.. Mr. Bewlay’s acceptance also followed Mr. Morgan having repeatedly put to him an inaccurate statement of the legal position. I place limited weight on this part of Mr. Bewlay’s evidence when deciding what decisions Mr. Bewlay did, or did not, have the power to make whether in law or in practice.[71]As I set out above, it is in my view highly unlikely that, in practice, the ICB does not generally act in accordance with the applicable regulations and framework and the way in which the ICB and Mr. Bewlay conducted themselves was consistent with the underlying statute, regulations and Framework. The fact that Mr. Bewlay had a mistaken view of his ‘rights’ does not alter that. Ms Banfield’s evidence[72]Ms Banfield’s involvement in the case related to the period after Bespoke had been informed that Mr. Banfield was moving to a direct payment. She had no direct experience of the relationship between the ICB and Bespoke, or any direct knowledge in relation to how Mr. Bewlay’s care package was set up or provided. She was able to provide helpful evidence within her area of knowledge.
Findings of fact
[73]I have included in this section references to the underpinning regulations or NHS guidance where, my view, they assist in providing context for or in the understanding of the factual position. Those matters are not properly findings of fact but it was convenient to include them here.[74]The claimant (Mrs Collinson) was employed as a support worker by the first respondent (Bespoke) from 6 July 2017. Her duties were to provide care to individuals with complex care needs in their own homes. Mrs Collinson was initially required by Bespoke to care for two individuals, Alison, who she cared for on Monday to Thursday and another child that she cared for on Fridays. Alison very sadly died and in January 2024 Mrs Collinson was required to care for Mr. Bewlay, the second respondent.[75]The first respondent (Bespoke) is a provider of care at home for those with complex care needs. It is commissioned by Integrated Care Boards (ICBs) and formerly Clinical Commissioning Groups (CCGs), to provide care packages to individuals in their homes.[76]The relevant ICB in this case is the North Yorkshire Integrated Care Board and the relevant CCGs were the East Riding CCG and the Vale of York CCG. For the purposes of these findings, the ICB effectively stepped into the Vale of York CCG’s shoes at some stage between 2020 and 2023.[77]An ICB’s function is to arrange for the provision of services for the purposes of the health service in England in accordance with the National Health Service Act 2006 (the 2006 Act).[78]Under section 3(1)(c) of the National Health Services Act 2006, an ICB has a duty to arrange for the provision of Continuing Health Care for a person for whom it has responsibility, ‘to such extent as it considers necessary to meet the reasonable requirements of the people for whom is has responsibility’.[79]Under regulation 21 of the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (the 2012 Regulations) an ICB has a duty, in certain circumstances, to assess an individual’s need for NHS Continuing Health Care.[80]NHS Continuing Healthcare’ means: ‘A package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs which have arisen as a result of disability, accident or illness’ (regulation 32A of the 2021 Regulations).[81]The roles and responsibilities of an ICB, where an individual is eligible for NHS Continuing Healthcare are set out at paragraphs 185-200 of the Framework. The Framework provides that the starting point for agreeing the package should be the individual’s preferences, although the ICB can take comparative costs and value for money into account when determining the model of support to be provided.[82]The second respondent (Mr Bewlay) suffered a high level complete spinal cord injury 16 years ago which left him paralysed from the neck down with several associated severe, complex and unpredictable health problems. The most significant of these is autonomic dysreflexia where a painful stimulus causes his blood pressure to rise and without the correct intervention will result in a brain haemorrhage and death. Because of this Mr Bewlay has been assessed by and ICB/CCG or its equivalent predecessor as eligible for Continuing Healthcare Funding for 24/7 specialist spinal care.[83]Since at least 2018 Mr. Bewlay’s care has been funded by a ‘personal health budget’. A personal health budget is an amount of money that has been identified by the ICB as appropriate for the purposes of securing the provision of the NHS Continuing Health Care. The application of that money is ‘planned and agreed between the relevant body and the eligible person or their representative.’ (regulation 32A of the 2012 Regulations).[84]The ICB has a duty to ensure that it is able to arrange for the provision of Continuing Health Care by means of a personal health budget (regulation 32B of the 2021 Regulations).[85]Under regulation 32B, a personal health budget must be managed in at least one of the following ways: 85.1. The making of a direct payment. 85.2. The application of the personal health budget by the ICB in accordance with the outcome of discussions with the eligible person or that person’s representative as to how best to secure the provision of Continuing Health Care to the person. This is known as a notional budget. 85.3. the transfer of the personal health budget to another person who applies the money in accordance with the outcome of discussions with the eligible person or that person’s representative as to how best, with the agreement of the relevant body, to secure the provision of the relevant health service to the eligible person.[86]In 2018 Mr Bewlay lived in the area covered by East Riding CGC. His personal health budget was managed by the making of a direct payment. He used that payment to separately engage a number of individual self-employed carers who provided his care.[87]In 2020 Mr Bewlay moved house. The responsibility for his Continuing Health Care moved from East Riding CCG to the Vale of York CCG. Mr Bewlay was told that he could no longer receive a direct payment or engage his carers on a selfemployed basis. He was told that he had to have his care provided by a care company.[88]Although an individual has a (qualified) right to have a personal health budget, the ICB has to decide which of the three ways would be the most appropriate way to manage the personal health budget (regulation 32B(4a) of the 2012 Regulations.[89]The ICB has to follow a prescribed process in making a decision whether or not to make a direct payment and makes the decision in accordance with specified criteria. Although a direct payment cannot be imposed without the individual’s consent, an individual has no right, qualified or otherwise, to insist on the personal health budget being managed by a direct payment.[90]From 2020 Mr. Bewlay’s personal health budget was managed by means of a notional budget. That means that the CCG had identified a sum of money that, in its view, was appropriate for the purposes of securing the provision of the NHS Continuing Health Care. That budget was held by the CCG (at that time). The CCG held discussions with Mr. Bewlay as to how to best secure the provision of Continuing Health Care to Mr. Bewlay.[91]I summarised to Ms Robertson my understanding of how a notional payment works, in that the ICB holds discissions with the individual with care needs and then the outcome of those discussions is an agreement as to what is the best way to secure the provision of Continuing Health Care services, but then the ICB holds the budget and they apply with in accordance with the outcome of those discussions. Ms Robertson agreed that was how a notional budget worked.[92]I find that where the personal health budget is being managed by way of a notional budget, the ICB applies that budget in accordance with the outcome of discussions with the eligible person or that person’s representative as to how best to secure the provision of Continuing Health Care to the person. I accept Ms Roberton’s evidence that ‘commissioners… will always seek to be led by the client/person being supported and seek to accommodate this as best practice and person-centred care’. It is not accurate to say that the person has the right to move the management of their care to another provider and that the person makes that decision rather than the ICB. It is the ICB’s decision.[93]The National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care summarises the position as follows:191. The care planning process is central to the commissioning and provision of care to meet an individual’s needs. Responsibility for care planning lies with the ICB.192. Where a person qualifies for NHS Continuing Healthcare, the package to be provided is that which the ICB assesses is appropriate to meet all of the individual’s assessed health and associated care and support needs. The ICB has responsibility for ensuring this is the case and determining what the appropriate package should be. In doing so, the ICB should have due regard to the individual’s wishes and preferred outcomes. … Whichever mechanism is used for meeting an individual’s assessed needs, the approach taken should be in line with the principles of personalization...[94]The CCG suggested a shortlist of three suitable care companies who could provide Mr. Bewlay’s care and Mr. Bewlay was allowed to pick one of those companies. Mr. Bewlay was told that if he did not pick one of the companies, the CCG would pick one. That reflects the position in the regulations and the Framework that the personal budget is applied in accordance with the outcome of discussions with the eligible person as to how best to secure the provision of Continuing Health Care to the person.[95]Consent is one of the principles underpinning the provision of healthcare, including Continuing Health Care and a patient has the right to refuse care and treatment. There is no obligation on any patient to accept NHS Services. That does not equate to a right to choose the provider of those services.[96]Mr. Bewlay thought that he had a legal right under the Care Act to choose his provider. He did not have such a right. He was not told by the ICB that he had this right. Neither of the parties acted, in practice, as if he had such a right. They acted in a way which was consistent with the 2012 Regulations and the Framework. The ICB made the ultimate decision as to the appropriate care package. Mr Bewlay had no right to choose a particular provider, but the ICB took his preferences into account.[97]One of the three care companies put forward by the CCG was Bespoke. That was who Mr. Bewlay selected, albeit reluctantly, because what he really wanted was to be given a direct payment so that he could engage individual carers on a self-employed basis as he had done previously.[98]Bespoke are commissioned by the North Yorkshire ICB under a standard NHS contract to provide Continuing Health Care services. The copy I have been provided with covers a three year period from 1 April 2023, but a similar contract applied during the relevant period.[99]Under that contract Bespoke, as the provider, accepted the Service Conditions and General Conditions published by NHS England from time to time. Under that contract the service specifications were: Assessed needs will be appropriately met by the provisions of services in accordance with the care and nursing plan outlined initially within the assessment report already provided, for each individual placement.[100]Under that contract Bespoke was subject to, inter alia, the following requirements: Personalised Care Plan in place, which details the service user’s preferences, needs and wishes and these are being met by the service…Additionally, the care plan will include evidence that it is regularly updated in line with the service user’s changing preferences and reviewed at least annually in line with the NHS National Framework for NHS CHC and NHS Funded Nursing Care.[101]On 11 September 2020 the Vale of York CCG wrote to Bespoke to inform them that Mr Bewlay had been accepted for full funding under Continuing Healthcare at a cost of £3638.18 per week with effect from 1 September 2020. The letter stated as follows: Care Plans Whilst the Case Manager can assist you with preparing an initial care plan, it is the responsibility of the provider to ensure adequate day to day care plans are in place. These are to be maintained within the client file at the residence. A copy should be sent every month to the Continuing Care Team at [email address]. The Case Manager reserves the right to check the care plans in a client file at any time. It is the provider’s responsibility to review and update care plans in accordance with a client’s clinical requirements and forward any amendments to the Continuing Care Team. All care plans should be signed by either the client or their next of kin. You must inform us of any hospital admissions. Staffing Arrangements The provider is responsible for sourcing the appropriate level of staff to fulfil the care package. Where you are unable to fulfil a package of care because of staffing difficulties you are required to notify the case manager immediately and will be responsible for sourcing additional staff to fulfil the package. Where you are unable to source additional staff and the CCG has to do this on your behalf, the CCG will seek to recover the additional expenditure from you, Notice Periods The notice period required from either party to terminate this package of care is 28 days. If you need to give notice on a package of care you should email both the Continuing Care Team [email address] and the CHC Finance team [email address]. Proof of receipt of the email is not sufficient and notice will not be deemed as accepted until you receive an acknowledgement email from the CHC Finance Team. The notice period only applies where there is on-going care provision by the provider during the notice period. Where there is a planned move of a patient to another provider and this is done in agreement, payment will cease at the point care provision stops. If the Vale of York CCG Safeguarding Team determine that a package of care is unsafe then we reserve the right to terminate a package without giving notice to the provider.[102]Bespoke selected and put together a team of individuals who provided care for Mr. Bewlay in his house, 24 hours a day. Once allocated to that team, the individuals on that team only provided care for Mr. Bewlay. This included some individuals who had previously cared for Mr. Bewlay as personal assistants engaged on a self-employed basis. Some of the personal assistants who had previously cared for him did not want to become employees of Bespoke, and they no longer provided care for Mr. Bewlay.[103]Mrs Collinson did not originally form part of that team, because she was caring for Alison on Monday to Thursday and another child on Fridays. After Alison died Mrs Collinson was moved in January 2024 to the team of individuals caring for Mr. Bewlay.[104]By January 2024 there was a team of Bespoke’s employees dedicated to providing day-to-day care for Mr. Bewlay. I have only been provided with the first names of those employees. That team consisted of Ibiso, Melissa, Boglarka, Trish and Mrs Collinson.[105]It is not necessary to make findings of fact on the specific tasks carried out by Mr. Bewlay’s carers when caring for him in his home, because it is not in dispute that those tasks remained materially the same at all relevant times.[106]Bespoke has a service delivery team that works with the manager of the package and the patient to complete rotas. If, for example, a carer calls in sick or is on holiday, the service delivery team arrange for cover to be provided by another carer.[107]I accept Ms Banfield’s evidence that Bespoke take a ‘person-centred’ approach to the selection of carers on the team and that the patient should have some involvement in the decision. She did not know the specifics but said that if a patient flagged concerns with an employee and wanted them to be removed, then Bespoke would generally follow their wishes.[108]Mr. Bewlay was not happy with certain aspects of the care being provided by the second respondent. As time went on some of the people on the team who had originally been Mr. Bewlay’s personal assistants had left the team and Bespoke replaced them with other staff. Mr. Bewlay did not think that the staff Bespoke were providing were sufficiently well trained or sufficiently experienced in spinal care. In particular he did not think that Mrs Collinson had received enough specialist training and felt she was having to be shown how to do things by the existing carers ‘on the job’. He also did not think that there were enough dedicated carers, which caused difficulty when the carers took annual leave. He was unhappy with some of Mrs Collinson’s decisions to take leave.[109]In October 2023 Mr. Bewlay says that he became aware that under the Care Act 2014 he had a legal right to receive his funding through a direct payment and employ his carers on a self-employed basis. As I have explained above, Mr. Bewlay’s understanding of the position was inaccurate in two ways. First, the Care Act 2014 is not the applicable legislation and second, there is no legal right to receive funding through a direct payment. There is a qualified legal right to a personal health budget, but Mr. Bewlay already had one of those.[110]Ms Robertson accepted in evidence that a patient cannot insist on a direct payment. I accept that Mr. Bewlay’s opinion was that he had a right to do this, but this was not the case for the reasons set out above. It is the ICB’s decision as to whether a person can take the management of their care on themselves by way of a direct payment. The individual does not have the right to make that decision. The fact that the ICB, following a request from Mr. Bewlay, made a positive decision to manage the personal health budget by means of a direct payment does not mean that, in practice, Mr Bewlay had the right to move to a direct payment or that he was, in effect, the decision maker.[111]In about October 2023 Mr. Bewlay requested that the personal health budget be managed by a direct payment and ICB agreed. In December 2023 there was a meeting between the ICB and Mr. Bewlay to discuss the change. At that meeting Mr. Bewlay told the ICB that he intended to use the direct payment to engage self-employed carers. At that stage, Mrs Collinson had not yet started caring for Mr. Bewlay.[112]Following the meeting in December 2023 discussions took place between Mr. Bewlay and the ICB about the care package. Before making a direct payment, the ICB had an obligation to prepare a care plan in respect of the services to be secured for a patient by way of direct payments and had to be satisfied that the health needs identified in the care plan could be met by the services specified in the care plan (regulation 8).[113]Although a direct payment is intended to give patients more choice, the personalised care and support plan is still a joint process to be agreed between the patient and the ICB.[114]A direct payment enables a person to have more choice, control and flexibility over how that individual’s care and support is provided. Before a direct payment can be made, the patient must agree that their health needs can be met by the services specified in the care plan, and that the amount of the direct payments is sufficient to provide for the cost of those services (regulation 8 of the 2013 regulations). An ICB has an obligation to make arrangements for a patient to obtain advice, information and support, which may include provision for commissioning services, whereby a person assists the patient in procuring services.[115]Under regulation 11(8) of the 2013 regulations, a health body may impose on a patient, representative or nominee a condition in connection with the making of a direct payment, that the recipient, whether the patient, or the representative or nominee in respect of the patient, must not secure a service from a particular person.[116]Once a direct payment has been made, the patient has certain responsibilities under regulation 11. For example, under regulation 11(2), before securing services from a provider, the patient has to make enquiries to ascertain that the provider is registered with the Care Quality Commission, if carrying out a regulated activity, and to ascertain the position of the provider in relation to insurance or indemnity cover. Under regulation 11(4) a patient must on request, or at intervals specified by a health body, provide the health body with information or evidence relating to the state of health or any condition of the patient in respect of which the direct payment is made or the health outcomes expected from the provision of any service.[117]Mr. Bewlay decided that he wanted to use the direct payment to engage carers on a self-employed basis. He did not use an agency or other provider, so his agreement was with each carer individually. He says that those individuals offered him care and asked to be self-employed and he accepted.[118]The individuals who would make up the care team were proposed by Mr Bewlay and agreed between Mr. Bewlay and the ICB, having regard to their credentials. The way Mr. Bewlay puts it is that the carers were ‘vetted’ by Ryedale House and the Council before involving him. Mr. Bewlay says, working with Ryedale House, he was looking at the expertise and they were looking at the insurance and training and everything else. Mr. Bewlay said that he selected the people that he thought were adequate to look after him, then he sent all the information over to Ryedale House or the ICB. Mr. Bewlay was involved, with Rydale House, in discussions about agreeing the rate of pay of the carers under the new arrangement.[119]This included a number of carers who had provided care to Mr. Bewlay before September 2020 but had not provided care as employees of Bespoke, as well as two carers who had previously cared for Mr. Bewlay before September 2020 and had cared for him as employees of Bespoke.[120]The care team did not include Mrs Collinson. Mr. Bewlay did not want to include her because, he said, she had only just started to provide care for him, was in training and was not part of his core team of carers. He also objected to a number of holidays that she had taken.[121]The ICB wrote to Bespoke on 29 May 2024 informing them that Mr. Bewlay had requested that ‘we provide his care through a Personal Health Budget Direct Payment where he will engage carers and pay for these directly using funds that we make available to him’. The letter proposed a date of 1 July 2024 and asked for confirmation that the date would be acceptable and they would work with Mr. Bewlay to ensure there was no disruption as the care package transitioned.[122]The two carers that Mr. Bewlay had agreed to engage as personal assistants on a self-employed basis, Boglarka and Trish, gave Bespoke notice of their resignation. Mr. Bewlay’s understanding was that the other carers would remain employed by Bespoke.[123]On 3 June 2024 Mr. Bewlay informed Mrs Collinson that he was moving to a direct payment, but that he would only be engaging two of the carers from Bespoke, not including the claimant.[124]On 7 June 2024 Bespoke’s complex care manager, Rachel Lloyd notified Mrs Collinson and the other carers that they had been served notice on Mr. Bewlay’s package of care and that they believed that TUPE would apply.[125]Bespoke informed Mr. Bewlay on 20 June that they had completed TUPE consultations with Mrs Collinson, Ibiso and Melissa, and recorded that they had opted to remain with Bespoke. Bespoke stated that ‘We have not been able to meet with Boglarka and Trish yet, but I understand that they have submitted their resignations and plan to transfer with you directly.’[126]Although Bespoke used the word ‘transfer’ in relation to Boglarka and Trish, they did not act as though the employment of those individuals was transferring from Bespoke to Mr. Bewlay under TUPE. They did not, for example, send Mr. Bewlay the Employee Liability Information etc., that they sent in relation to Mrs Collinson or notify him at any stage that TUPE applied in relation to the other two individuals.[127]I do not need to make detailed findings as to what happened in relation to Mrs Collinson, but after that initial communication it became clear to Bespoke that Mrs Collinson did want to transfer to Mr. Bewlay.[128]Bespoke informed Mr. Bewlay on 24 June that ‘one of the workers’ had confirmed that she would like transfer across on 1 July. This was a reference to Mrs Collinson. Bespoke stated: This means that TUPE will apply for this transition. Please note that under TUPE law her current terms and conditions would need to be protected such as start date, pay rate etc., We will finalise the Employee Liability Information (ELI) our end and get this sent across to you tomorrow. This will have all the terms and conditions of employment for the individual who wants to transfer.[129]Mr. Bewlay queried this and Bespoke confirmed that it was Mrs Collinson who wanted to transfer.[130]There followed a series of discussions between Mr. Bewlay, the ICB and Bespoke in which Bespoke put forward its position that TUPE operated to transfer Mrs Collinson’s employment and the ICB and Mr. Bewlay put forward their position that there was no employment for Mrs Collinson to transfer into, because Mr. Bewlay was not becoming an employer.[131]On 3 July 2024 Bespoke wrote to Mrs Collinson as follows: Further to our consultation period, you will be aware that on 1 July 2024 Bespoke Health and Social Care stopped providing the service of NB’s package of care in which you are employed and those services will be performed by a PHB instead. We confirm that your employment transferred to the new provider on the above date. The transfer of your employment is governed by the Transfer of Undertakings (Protection of Employment) Regulations 2006 under which your continuous employment and contractual rights are transferred automatically.[132]On 9 July 2024 the ICB wrote to Mr. Bewlay as follows: Just following on from our conversation yesterday, please can you let me know if you have any contact from [Mrs Collinson] and can you please ensure you don’t allow her to provide you with any care and do not pay her for any care. …There are ongoing conversations between Bespoke and ICB and I will update you if there is anything you need to know.[133]There is no dispute that the tasks that the individuals carried out while caring for Mr Bewlay were essentially the same before and after 30 June 2025. His needs are and will remain the same. After 30 June 2025, the carers now sort out the rota between themselves by filling in the days between them for the following month.[134]There was no evidence before me that Mr. Bewlay was responsible for ensuring that adequate day to day care plans were in place, or sending a copy of these every month to the ICB continuing care team. There was no evidence that Mr. Bewlay was responsible for reviewing and updating care plans in accordance with his clinical requirements.[135]Under regulation 8 of the 2013 Regulations, the ICB must prepare a care plan before making a direct payment. Under regulation 14 the ICB must monitor the health conditions of a patient in respect of which direct payments are made and must review the care plan at appropriate intervals. Following a review the ICB, may, for example, amend the care plan, alter the amount of the direct payments or impose a condition that the patient must not secure a service from a particular person. The ICB can stop making direct payments if it is satisfied that is appropriate to do so.[136]Taking into account the evidence, and the 2013 Regulations, I find that Mr. Bewlay’s role in managing his care following 30 June 2025 was limited to sourcing, engaging and paying the individuals who, on a self-employed basis, provided his day-to-day care. Submissions[137]Mr. Morgan submitted that the evidence was clear that there was an organised grouping of four people at the latest from January 2024 whose principal purpose was providing care to Mr. Bewlay and that Mrs Collinson was assigned to that grouping. Mr. Bewlay accepted in evidence that Mrs Collinson did not provide care to any other individuals in the relevant period.[138]He submitted that the relevant activities are fundamentally the same before and after 30 June 2024. Mr. Bewlay’s needs and the support required will always remain the same. He submitted that the management of Mr. Bewlay’s care had transferred to Mr. Bewlay. He submitted that, in essence, that is what the direct payment is all about – shifting who is going to be responsible. He submitted, in reliance on the letter from the ICB, that Mr. Bewlay was now responsible for managing his care. He has chosen to delegate that and contract with individuals to provide services on a self-employed basis, but he remains responsible for managing his care.[139]In relation to the position when the personal health budget was managed by way of a notional budget, he referred to the statement in the letter from the ICB dated 5 November 2024 that the ICB holds the budget and uses it to secure services based on the outcome of discussions with the person. On that basis he submitted that Mr. Bewlay was the ‘controlling mind’ and was the person with ‘the casting vote’. He submitted that care is done on a consensual basis, it is not foisted on a person in Mr. Bewlay’s position. He argued that Mr. Bewlay has capacity and has the decision as to what happens to him and his person. On that basis he submitted that Mr. Bewlay was in charge of the commissioning of what happened to him in his care in the period prior to 30 June 2024.[140]Mr. Morgan said that this could be looked at through a number of lenses. He submitted that even on Mr. Bewlay’s own case he was given a choice of three providers and he chose who was to be commissioned. He submitted that Mr. Bewlay was the controlling mind, albeit that that he was given a limited choice.[141]Mr Morgan submitted that there came a point where Mr. Bewlay became responsible for holding the money and Mr. Bewlay accepted that on the first time of asking for the money they gave it to him.[142]Mr. Morgan noted that he had put to Mr. Bewlay Ms Robertson’s evidence that ultimately it was him that made the decision as to the provider and Mr. Bewlay accepted that it was ultimately his decision. Mr. Morgan submitted that was important because it showed that Mr. Bewlay had the casting vote as to who was commissioned prior to 30 June 2024.[143]Mr. Morgan submitted that whatever the position in law, he was running the case as a question of fact, and both witnesses had said that it was down to Mr. Bewlay to make the call as to the provider. He submitted that Mr. Bewlay had agreed with Mr. Morgan when he put that it was his decision about changing providers and that was also Ms Robertson’s evidence.[144]He submitted, in reliance on Jinks, that it is not enough to look at the strict legal or contractual relationships, the tribunal has to decide who is the real or the ultimate client. He submitted that it was not just about the underlying legal framework but about how the ICB would have applied it in this particular case. He submitted that the Vale of York and the ICB are transactional bodies and all they were really doing was providing the cash to provide this service. The care plans and the staffing were left to Bespoke. He submitted that Mr. Bewlay was in the driving seat as to his own care. ICB were commissioning the care they were not requiring of care. He submitted that the person who at all stages was requiring of care was Mr. Bewlay and therefore he was the real or ultimate client.[145]He submitted that this was different to a social work situation where care might be foisted upon someone as an intervention by the state. He submitted that this was a consensual arrangement.[146]I asked him if the ICB’s statutory duty to provide care made a difference to whether or not that care was being provided on their behalf. In essence, he said that it did not for the simple reason that the ICB do not require care. He submitted that it was akin to an agency situation. He submitted that the ICB were not receiving care, it was Mr. Bewlay who was receiving care and therefore he was the real client.[147]He accepted that Ms Robertson’s evidence was in general terms and that she could not speak to the position in relation to Mr. Bewlay. He said the best evidence was from Mr. Bewlay who had agreed that he made the decision in terms of who the provider would be.[148]He submitted that it was not just about the freedom to change provider. He submitted that prior to 30 June 2024 there were a number of other freedoms in play. He submitted that Mr. Bewlay, at the first time of asking, was not denied the right to transfer to direct payment. He submitted that Mr. Bewlay had the ability to make that change. He said that he appreciated that there existed criteria that was no doubt applied but submitted that it was Mr. Bewlay’s case that was important, not the general position. He submitted that. Bewlay, as a matter of fact, had the money transferred to him as soon as he asked and there is no reason to suppose that would not have happened if he had asked sooner.[149]On that basis he argued that the evidence showed that not only did Mr. Bewlay have the gift to choose the provider, he also had the ability to move to direct payments when he chose to do so.[150]I asked Mr. Morgan to address me on the impact of the change to the provision of care by self-employed individuals. He submitted that it could not sensibly be said that the activities were different because of the way that they were arranged. He said there was no change other than logistics. He submitted that Mr. Collinson had decided to delegate, but if there was a gap he would surely step in.[151]Mr. Bewlay submitted that Mrs Collinson was not part of an organised team. He said that Bespoke had not trained her in spinal injury care. His personal care and support plan stated that he should have specialised care and that was not provided. Mrs Collinson could not be part of that team because she was in training.[152]He said that he did not think that TUPE could apply because he was not an employer and did not manage his care. He said that the funding of his care is commissioned by the ICB for self-employed specialist spinal injury carers. He said that the only reason he moved was because it had worked for him before and Bespoke had not fulfilled what they said they were going to do when he first moved to them.[153]Ms McMullen on behalf of Mrs Collinson made a number of points in closing submissions which I took account of where relevant. In summary she said that the claimant’s position is that Mr. Bewlay’s refusal to accept Mrs Collinson is in breach of TUPE, or, in the alternative, she should have been offered redundancy and a compensation package by either party. Discussions and conclusions Relevance of the contractual and legal framework underpinning NHS Continuing Healthcare, personal health budgets and direct payments[154]The first respondent had not disclosed or included in the bundle the contract between the first respondent and the Integrated Care Board (ICB). The bundle included a letter from the Vale of York Clinical Commissioning Group to the first respondent dated 11 September 2020. When I asked Ms Robertson if that letter was all the documentation governing the relationship between the ICB and the first respondent, she stated that there was a standard contract. That was disclosed by the first respondent, at my request, during the hearing.[155]I gave the parties the opportunity to provide additional submissions following the hearing as the contractual documentation had been disclosed late. Neither respondent made any submissions on the contract.[156]On a number of occasions in the hearing I drew Mr. Morgan’s attention to the fact that I was aware that there was a framework of statute and NHS guidance underpinning the relationships in this case, and that he would need to address me on this.[157]During Mr. Morgan’s cross-examination of Mr. Bewlay I clarified that if Mr. Morgan intended to argue that Mr. Bewlay had the right to choose the provider or move to a direct payment, he needed to reference the relevant law. He could not simply rely on Ms Roberton’s understanding of the position.[158]At the end of the first day of the hearing I highlighted to Mr. Morgan that I did not have a detailed knowledge of the legal rights of the individual being provided with care to, for example, choose to move to direct payment, because it was not employment legislation. I indicated that it would be helpful if he could flag up any specific provisions that he wanted to refer to the next day so I could read them that evening. He had no provisions to flag up. I also said that I did not think that I had sufficient information about the relationship between the ICB and Bespoke and that further submissions and evidence in relation to that would be helpful.[159]Mr Morgan did not address me on the contractual framework, or on the statutory underpinning of the relationship between the ICB and the first and second respondents. He made no reference to the 2006 Act, the 2012 Regulations, the 2013 Regulations or the Framework. The only reference he made to any underlying legislation was when he inaccurately put the position under the Care Act to Mr. Bewlay.[160]Mr Morgan submitted, in reliance on Jinx v London Borough of Havering UKEAT/0157/14/MC, that the question of the identity of the client was a question of fact.[161]I accept that Jinks is authority for the proposition that the strict legal or contractual relationships do not necessarily answer the regulation 3 question and that the question of the identity of the client is a question of fact not law.[162]However, that does not mean that the contractual position and the statutory underpinning are irrelevant. They are an important part of the factual nexus, particularly in a case where there are detailed regulations and a Framework, to which the ICB must have regard, governing the decision making powers of the ICB and the extent to which the ICB is required to take into account the views and preferences of an individual patient.[163]Even if I had accepted that, on the facts, Mr. Bewlay had greater control or greater decision making power than was normally allowed to patients entitled to NHS Continuing Health Care, the underlying position would still have been relevant to my findings.[164]I was not, in the event, persuaded that Mr. Bewlay had the level of control or the decision making power or the ‘rights’ as asserted by Ms Robertson and, to some extent, accepted by Mr. Bewlay as explained in my findings of fact and under ‘evidence’ above.[165]As I set out under ‘evidence’ above, I take the view that it is highly unlikely that, in practice, the ICB does not generally act in accordance with the applicable regulations and framework, given the expenditure of significant sums of public money. There is no reason to conclude that the ICB did not act in accordance with those in Mr Bewlay’s case. Mr. Bewlay’s understanding of his rights, based on the application of the Care Act, was wrong. The way in which the parties acted is entirely consistent with the patient centred approach set out the applicable regulations and framework.[166]In summary I find that the matters set out above under ‘The legal framework – NHS continuing healthcare, personal health budgets and direct payments’ are relevant to the question of on whose behalf the relevant services were being carried out. Mr. Morgan was given ample opportunity to address me on the underpinning legal framework but chose not to do so.[167]Given that the other parties were litigants in person, I did not specifically ask them to address me on the underpinning legal framework, but they were present when I flagged those matters to Mr. Morgan and had the opportunity to address me on this if they had wished to do so. What were the relevant activities?[168]There is a mismatch in the first respondent’s case in relation to the relevant activities.[169]For the purposes of its case that Bespoke ceased to carry out the relevant activities on the 30 June 2024 and that Mr Bewlay from 1 July 2024 carried out those activities, the first respondent defines the activities as the management of Mr. Bewlay’s care package, i.e. the management of the care provided to Mr. Bewlay in his own home.[170]This is the basis on which the first respondent puts its case in the grounds of resistance and as was recorded in the case management order.[171]For the purposes of its case on whether there was an organised grouping of employees which had as its principal purpose the carrying out of the activities concerned, Mr. Morgan’s submissions were that the purpose of the grouping was ‘the care of Mr. Bewlay’. That is a different activity.[172]Bepoke were engaged to provide a ‘care package’ including: 172.1. Preparing an initial care plan with the assistance of the ICB case manager 172.2. Ensuring that adequate day to day care plans were in place, and sending a copy of these every month to the ICB continuing care team. 172.3. Reviewing and updating care plans in accordance with Mr. Bewlay’s clinical requirements. 172.4. Sourcing the appropriate level of staff to fulfil the care package[173]The ‘management’ of the care package, in my view, consists of those tasks and does not include the day to day tasks carried out by the individual carers.[174]In order to incorporate both elements relied on by the first respondent, the activities concerned could be described as the provision and management of a care package to Mr. Bewlay. I accept that Bespoke carried out all those activities before 30 June 2025.[175]However, on the basis of my findings of fact, Mr. Bewlay carried out only part of those activities, namely the sourcing, engaging and paying the individuals who, on a self-employed basis, provided his day-to-day care.[176]Mr Bewlay did not carry out the other tasks which formed part of managing the care package. He did he not carry out the day-to-day care, either by himself or by his employees. The day-to-day care was carried out by self-employed individuals who Mr. Bewlay contracted with separately. There is no suggestion that his relationship with the care workers was a sham, or that it was really an employment relationship.[177]On that basis I find that the relevant activities that are potentially subject to a SPC are the sourcing, engaging and paying of the individuals who carried out the day-to-day care of Mr. Bewlay.[178]Although defining the scope of the activities in this way affects my alternative findings, set out below at paragraphs 202-204, it does not affect my decision on the identity of the client. I would have reached the same decision for the same reasons even if I had defined the scope of the relevant activities more widely as including the management of the care package and the carrying out of day-today care. Who was the client before 30 June 2024? 179. ‘Client’ in the SPC provisions does not mean the beneficiary or end-user of a service (CT Plus). The question is not whether Bespoke provided those activities for the benefit of Mr. Bewlay, but whether it provided those services on behalf of Mr. Bewlay (Nottinghamshire v Hamshaw). For that reason, Mr. Morgan’s submission that it was Mr. Bewlay who required care rather than the ICB is not to the point.[180]I find that before 30 June 2025, Bespoke were carrying out the management and provision of Mr. Bewlay’s care, including sourcing, engaging and paying the individuals who provided his day-to-day care, on behalf of the ICB. I reach this conclusion for a number of reasons.[181]First, once Mr. Bewlay had been assessed as entitled to Continuing Health Care, the ICB had a statutory duty to arrange for the provision of Continuing Health Care (regulation 21 of the 2012 Regulations and section 3(1)(c) of the NHS Act 2006). Continuing Health Care is a package of care ‘arranged and funded solely by the Health service in England…to meet physical or mental health needs…’.[182]The ICB had arranged for the provision of the relevant health services to Mr. Bewlay by means of a personal health budget. That meant that the ICB had arranged to provide the relevant health service to Mr. Bewlay by means of an amount of money that they had identified as appropriate for the securing the provision to Mr. Bewlay of the health service, and that the application of that amount of money was to be planned and agreed between the ICB and Mr. Bewlay (regulation 32A).[183]Before 30 June 2025 the money was managed in accordance with regulation 32B(2)(a), i.e. the ICB applied the personal health budget in accordance with the outcome of discussions with Mr. Bewlay as to how best to secure the provision of the relevant health service to him (known as a notional budget).[184]In those circumstances the ICB(i) has a statutory duty to arrange for the provision health services to Mr. Bewlay and(ii) was, in fact, the body arranging for the provision of those health services to Mr. Bewlay via the application of a ‘notional budget’ which it had used to commission Bespoke to provide a care package for Mr. Bewlay. It is the ICB, not Mr. Bewlay, who has the statutory duty to provide those services. It is the ICB, not Mr. Bewlay, who has commissioned Bespoke to carry out those services in order to satisfy its statutory duty.[185]I note that the agreement between Bespoke and the ICB states, under ‘staffing arrangements’: ‘Where you are unable to source additional staff and the CCG has to do this on your behalf, the CCG will seek to recover the additional expenditure from you’. This underlines the position that the ICB remained ultimately responsible for ensuring that the care was provided, in accordance with their statutory duty and that they would step in if necessary.[186]In my view it is clear that Bespoke were providing and managing a package of care to Mr. Bewlay (including sourcing, engaging and paying the individuals who provided his day-to-day care) on behalf of the ICB.[187]Looking beyond the strict legal and contractual arrangements, I have considered whether it can be said that Mr. Bewlay was the ‘real client’? In my view the only sense in which Mr. Bewlay could be said to be a ‘client’ before 30 June 2025 would be in the lay sense, i.e. that he was the beneficiary or end user. That is not the relevant test. I do not accept that Bespoke were providing the relevant health services on his behalf.[188]Mr. Morgan argued that before 30 June 2025 Mr. Bewlay was the ‘controlling mind’ and that Mr. Bewlay was in charge of the commissioning of the services. He submitted that, in reality, Mr. Bewlay was ‘in the driving seat’, or the ‘controlling mind’ or ‘had the casting vote’ as to who was commissioned before June 2024.[189]He based this on the evidence of Mr. Bewlay and on the evidence of Ms Robertson. I have set out my findings on this argument under ‘evidence’ and my findings as to the position in practice in my findings of fact above.[190]The role and responsibilities of the ICB where an individual is eligible for HNS Continuing Healthcare are set out in the Framework. That Framework reflects, in my view, the role of the individual and the extent to which their preferences are accommodated.[191]It is right that the ICB will always seek to be led by the person being supported as to their preference and seek to accommodate that as best practice. That is the approach of person-centred care. The starting point for agreeing the package should be the individual’s preferences, although the ICB can take comparative costs and value for money into account when determining the model of support to be provided. The notional budget is applied in accordance with the outcome of discussions with the individual as to how best to secure the provision of the relevant health service to the eligible person.[192]I accept that the effect of the patient centered approach and the NHS emphasis on patient choice could be described as the patient having ‘the casting vote’, in the sense that when ICB suggested three suitable providers Mr. Bewlay, they commissioned the one that Mr. Bewlay preferred.[193]Further, I accept that consent is one of the principles underpinning the provision of healthcare, including Continuing Health Care and that a patient has the right to refuse care and treatment. There is no obligation to accept NHS Services.[194]None of the above, in my view, has the effect that Mr. Bewlay was ‘in the driving seat’, or the ‘controlling mind’ as to who was commissioned before June 2024. It remains the ICB that takes the decisions, in accordance with the patient centered approach described above.[195]Although the NHS/ICBs take a patient centered approach, it is still the ICB that is responsible for providing the relevant health service, not the patient, and therefore when the ICB commissioned Bespoke to provide the service, I find that it was provided on the ICB’s behalf and not on behalf of Mr. Bewlay.[196]Having determined that Mr. Bewlay was not the client prior to 30 June 2024, it necessarily follows that there was no service provision change within regulation 3(1)(b)(iii).[197]The first respondent relied, at the hearing, only on regulation 3(1)(b)(iii) on the basis that the client was Mr. Bewlay. As Mrs Collinson, a litigant in person, also asserts that there was a transfer by way of a service provision change, and she did not specify the specific provision on which she relied, it was appropriate to consider whether there was a service provision change under regulation 3(1)(b)(ii). Who was the client following 30 June 2025?[198]I have found that the relevant activities that ceased to be carried out by Bespoke and were carried out by Mr. Bewlay following 30 June 2025 were the sourcing, engaging and paying the individuals who provided his day-to-day care.[199]The ICB retains a statutory duty to provide care and remains responsible for ensuring that everything necessary to deliver safe care is included in the care package and that any significant risks have been discussed with the person or their representative and appropriate procedures to manage these risks have been included.[200]However, Mr. Bewlay had greater choice and flexibility over how his assessed health needs were met. He proposed those individuals to the ICB. He was responsible, under the 2013 Regulations, for making enquiries to ascertain that the provider was registered with the Care Quality Commission, if carrying out a regulated activity, and to ascertain the position of the provider in relation to insurance or indemnity cover. He personally entered into binding, albeit oral, agreements with each of those individuals to carry out his care. He paid the invoices raised by those individuals. In my view, following 30 June 2024 Mr. Bewlay was responsible for sourcing the individuals and he did so on his own behalf rather than on behalf of the ICB.[201]As the client was different before and after 30 June 2024, there was no service provision change within regulation 3(1)(b)(ii) and that there was no transfer under TUPE. Alternative findings[202]In case I am wrong in my conclusion that the ICB was not the client after 30 June 2024 or my conclusion that Mr Bewlay was not the client before 30 June, I find in the alternative that there was no service provision change on the following basis.[203]I am not persuaded that there was within Bespoke an organised grouping of employees, to which Mrs Collinson was assigned, which had as its principal purpose the relevant activities carried out following 30 June 2024 by Mr. Bewlay, i.e. the sourcing, engaging and paying the individuals who provided his day-today care. There was no evidence of an organised grouping with that principal purpose.[204]The purpose of the organised grouping of which Mrs Collinson formed part was to carry out the day-to-day care of Mr. Bewlay. That was not an activity that Mr. Bewlay carried out following 30 June 2024, nor was it carried out by anyone employed by him.[205]The activity of providing day-to-day care, whether carried out on behalf of the ICB or on behalf of Mr. Bewlay, was carried out after 30 June 2024 by a number of self-employed individuals. It is not suggested that those individuals were, in reality, employees, nor that they were engaged on a self-employed basis in an attempt to avoid TUPE.[206]On that alternative basis I find that there was no transfer to Mr Bewlay by way of a service provision change even if I am wrong to find that the client was not the same before and after 30 June 2024. Consequences of there being no TUPE transfer[207]As there was no TUPE transfer: 207.1. The second respondent has no potential liability in relation to any of the claims and the claims against the second respondent are dismissed. 207.2. There is no potential claim for automatically unfair dismissal under regulation 7 TUPE and that claim is dismissed.[208]The claim for ordinary unfair dismissal and for a redundancy payment continues against the first respondent only. Approved by