Royal Borough of Kensington and Chelsea, R (on the application of) v NHS North West London Integrated Care Board [2025] EWHC 889 (Admin)

[2025] EWHC 889 (Admin)Case No AC-2024-LON-01220
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 th April 2025
Before
Neil Cameron KCsitting as a Deputy High Court Judge
Between
NHS NORTH WEST LONDON INTEGRATED CARE BOARDDefendantRebecca Davies (instructed by Bi-Borough Legal Services for Royal Borough of Kensington and Chelsea) for the ClaimantPeter Mant KC (instructed by Capsticks LLP) for DefendantHearing Hearing date: 25 th March 2025
JUDGMENT

The Deputy Judge (Neil Cameron KC):

[1]The Royal Borough of Kensington and Chelsea pursues a claim for judicial review in relation to a decision made by the NHS North West London Integrated Care Board to decline to make a financial contribution towards the costs of funding BL’s placement at a specialist children’s home which I will refer to as BH.[2]The decision under challenge was made by the Defendant on 9th January 2024.[3]By an order dated 6th November 2024, David Pievsky KC sitting as a Deputy High Court Judge granted permission to apply for judicial review, and if needed an extension of the time allowed to file a claim. Mr Pievsky also made an order that the Interested Party’s name is to be withheld from the public in connection with these proceedings and is to be referred to as ‘BL’. There must be no publication of the identity of the Interested Party or any matter likely to lead to the identification of the Interested Party in any report of, or otherwise in connection with, these proceedings.[4]At the substantive hearing the following procedural applications also fell to be determined: i) An application that the Interested Party be discharged as a party. ii) An application by the Claimant for an extension of the time allowed to file the trial bundle and skeleton arguments. iii) An application by the Claimant for permission to file and rely on the witness statements of a) Richard Marks; b) Steph Baiardo; c) Jowita Niedzielska; and d) Justine May iv) An application by the Defendant that, in the event that the Claimant’s application to file and rely on the witness statements set out at (iii) above is granted, it be permitted to file and rely on the second witness statement of Henry Leak. v) An application by the Claimant that, to the extent required, it be permitted to rely on the additional grounds set out at paragraphs 43-47 of its counsel’s skeleton argument.[5]The Claimant and the Defendant are agreed that an order should be made discharging the Interested Party. I was told by counsel that the costs of placing BL at BH would be met whether or not the Claimant succeeds in these proceedings. At the start of the hearing I approved a draft consent order to discharge the Interested Party.[6]At the start of the hearing I also granted the application for an extension of the time allowed to file the trial bundle and skeleton arguments. The Background Facts[7]BL is a young person born on 29th July 2007. She moved to the United Kingdom with her family from South Africa in June 2022, and has been receiving mental health and social services support since then. Upon moving to the UK she resided in the area of the Royal Borough of Kensington and Chelsea and in the area served by the Defendant. She has diagnoses of anxiety, ASD, ADHD and dyslexia and suffers from problems of low-mood, self-harm, suicidal ideation, sensory processing, emotional dysregulation, and disordered eating.[8]On 23rd June 2022 BL was admitted to the Chelsea and Westminster Hospital following police attending at her family home. BL was taken to the Accident and Emergency Department of the hospital. BL was assessed in the hospital by the Children and Adolescents Mental Health Service (“CAMHS”) team who reported that BL did not have acute mental health needs, and in their opinion was in a social care crisis.[9]On 24th June 2022 the police were again called to BL’s family home. The police requested that the Claimant should assess BL pursuant to the provisions of section 17 of the Children Act 1989 (“the 1989 Act”).[10]On 3rd July 2022 BL went missing from her family home. She was found by police and taken to a hospital Accident and Emergency Department. BL was admitted to the paediatric ward and discharged the next morning.[11]On 10th July 2022 BL again attended an Accident and Emergency Department following expressions of suicidal ideation and reporting having taken ten Lorezepam tablets and other medications. During this admission BL’s mental health was assessed by the specialist CAMHS hospital team, who reported that from their assessment there were no serious mental health concerns (including suicidal ideation). In terms of her physical health, BL was also found to have normal bloods with no high dosage of medication having been ingested. BL was discharged the following day, but on returning home, her mother felt unable to cope and took BL back to hospital though BL was not admitted at this time.[12]In August 2022 BL was referred to the Defendant’s Dynamic Support Register (“DSR”).[13]The Claimant local authority undertook a ‘Child in Need’ assessment, which was completed on 30th August 2022 and concluded that BL was a Child in Need as a result of her behavioural support needs and autism.[14]From July 2022 to July 2023, BL was supported at home under a Child in Need plan with a care package from the Claimant local authority, and supported to access secondary education.[15]BL was admitted to Chelsea and Westminster Hospital on 19th July 2023 and deemed fit for discharge the following day. BL’s mother indicated that BL could not return to the family home. BL remained in hospital despite being fit for discharge. During the time when BL was in hospital the Defendant requested that the Positive Behaviour Support (“PBS”) team support BL and the hospital staff.[16]On 5th September 2023 BL was discharged from hospital to BH, a children’s home registered with Ofsted. The placement was arranged and funded by the Claimant pursuant to the provisions of the Children Act 1989.[17]The Claimant requested that the Defendant contribute to the funding of BL’s placement at BH. The initial request was made in August 2023 and a further request made by an email dated 19th September 2023. The Claimant’s proposal was that the split be 66.6% local authority, shared equally between social care and education, and 33.3% health care.[18]On 20th September 2023 the Defendant’s Senior Delivery Manager responded stating that BL did not meet the criteria for 33.3% health care funding and offered to make a contribution of 5% towards the cost of the placement, stating:
“… In terms of [BL]’s mental health, they are still having suicidal ideation and this is concerning. [BL] was assessed by CAMHS in July 2023 and found to have no acute mental health needs that required an inpatient admission for treatment. A further Psychiatrist assessment in August 2023 agreed that there is no acute mental health problem, but that [BL] presented long-term complex emotional and behavioural difficulties which required a multiagency approach. Given this last comment, the ICB is happy to offer to contribute 5% towards the cost of [BL]’s placement.”
[19]A request was made for a Super Extra-Ordinary Meeting to be convened to consider the Claimant’s request. Such a meeting was convened for 9th January 2024.[20]In preparation for the Super Extra-Ordinary Meeting the Defendant’s Complex Placements Senior Delivery Manager conducted a review on 2nd January 2024, with a further review being undertaken by the Defendant’s Head of Service for Children and Young People. The review was recorded in a document entitled “Joint Funding: Review of Request for Joint Funding”. i) The range of universal services and ICB commissioned services available to BL at BH are recorded. Specific consideration was given to BL’s needs as an autistic young person, to mental health and well-being needs, and to emotional and psychological needs. ii) It is noted that a PBS plan was provided to BH in September 2023 and PBS coaching ended in December 2023. The following finding is recorded:
“The staff team have received training and advice from PBSG on how to support KK and how to follow and integrate the PBS plan into the placement.” iii) The outcome of the review was recorded as: “The review has clearly shown that the placement does not provide any form of specialist health support for [BL], and there is no evidence to support joint funding at this time.”
[21]A document entitled ‘Funding Profiles’ was prepared by the Claimant for the Super Extra-Ordinary Meeting. i) That document identifies three funding profiles: a) Section 1: where a child is eligible for Children’s Continuing Care. b) Section 2: where a child is eligible for after-care under section 117 of the Mental Health Act 1983 (“MHA 1983”). c) Section 3: children with complex needs who fall just below the continuing care eligibility or have severe mental health needs who fall just below continuing care eligibility or have severe mental health needs but are not covered by section 117 of the MHA 1983. d) In January 2024 the profiles at sections 1 and 2 were agreed and in use. The profile at section 3 had been proposed by the local authorities but had not been agreed by the Defendant. ii) The Claimant put forward a number of cases (for consideration for funding by the Defendant) at the Super Extra-Ordinary Meeting, including that of BL. iii) The Claimant and other local authorities also put forward a proposal that their ‘profiles’ be applied when the Defendant considers funding decisions.[22]At the Super Extra-Ordinary Meeting: i) The Defendant did not accept the local authorities’ proposal to create a funding profile under Section 3, and stated that its position remained that funding should be considered by case by case assessment. ii) Attention was drawn to the findings of the ‘David’ Serious Case Review, and it was argued by a representative of the local authorities that wider interpretations of health interventions were best practice. iii) The Defendant re-stated its decision not to contribute to the cost of BL’s placement.[23]The Defendant is the statutory National Health Service (“NHS”) organisation responsible for developing a plan for meeting the health needs of the population, managing the NHS budget and arranging for the provision of health services in North West London. The Defendant serves a population of over 2.1 million people who live across the eight boroughs of North West London, being Hillingdon, Ealing, Hounslow, Harrow, Brent, Hammersmith and Fulham, Westminster, and Kensington and Chelsea. The Defendant plans and allocates NHS resource to deliver a wide range of services including primary health care, mental health services, urgent and emergency health care, elective hospital services, and community health care.[24]The Defendant discharges its duty by commissioning universal services and by commissioning specialist healthcare services for individuals. That specialist provision includes NHS Continuing Health Care for adults (“Adult CHC”) and Children’s Continuing Care services (“Children’s CC”) for children. Children’s CC is different to Adult CHC, as it is assessed differently, and has different criteria for eligibility. Adult CHC is governed by The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (“the 2012 Regulations”). There is no similar statutory provision for Children’s CC.[25]The key guidance document relating to Children’s CC is the National Framework for Children and Young People’s Continuing Care (“National Framework for Children”).[26]Where Children’s CC is required this is usually provided as part of a package which is arranged jointly between an ICB and the local authority social services and education departments. The Defendant has been seeking to develop a local policy for North West London setting out how decisions relating to provision for children with complex care needs are to be made. That policy is in the process of being formulated. The Application to Admit the witness statements[27]The Claimant applies for permission to admit the witness statements of: i) Richard Marks; ii) Steph Baiardo; iii) Jowita Niedzielska; and iv) Justine May.[28]On the application form (sealed by the Court on 20th January 2025) the Claimant states:
“It is respectfully submitted that the attached statements and exhibits are relevant evidence attesting to BL's health needs and how they are met at the specialist placement where they currently reside as recommended and supported by the Defendant NWL ICB.”
[29]Ms Davies informed the court that the application to admit the witness statement of Steph Baiardo is not pursued.[30]In a letter dated 27th January 2025 the Defendant objected to the admission of the four witness statements as the directions made by the court on 10th December 2024 were not complied with. The Defendant further objected on the grounds that the evidence related to background information, was not evidence in response to Mr Leak’s first witness statement, and included information relating to matters which post-date the decision under challenge.[31]Ms Davies argued that the statement of Mr Marks should be admitted as it responded to the evidence of Mr Leak and provided evidence on background facts. Ms Davies submitted that the evidence of Ms Niedzielska included information relating to CAMHS provision. Ms Davies submitted that Ms May’s evidence responded to the statement made in Mr Leak’s first witness statement that the offer by the Defendant to contribute 5% of the costs of BL’s placement at BH was a ‘gesture of goodwill’. Ms Davies also submitted that Ms May’s witness statement responded to other passages in Mr Leak’s first witness statement.[32]The Defendant objects to the admission of the additional evidence. In the event that permission is given to admit the additional witness statements submitted by the Claimant, the Defendant applies for permission to admit the second witness statement of Henry Leak.[33]The evidence of Ms May responds to the statement made by Mr Leak (at paragraph 35 of his first witness statement) that the Defendant’s offer to make a contribution of 5% of the cost of BL’s placement at BH was a ‘gesture of goodwill’. Ms May produces the email in which that offer was made.[34]The evidence of Mr Marks provides further background information to that contained in Mr Leak’s first witness statement.[35]The evidence of Ms Niedzielska includes evidence relating to matters which occurred after the decision under challenge was made. Ms Niedzielska produces an email dated 13th December 2023 which refers to the fact that the Hillingdon CAMHS team is in the process of allocating a named case worker for BL.[36]The Defendant has had an opportunity to consider the witness statements which the Claimant seeks to rely upon, and Mr Leak has made a witness statement in response. Any prejudice caused to the Defendant by the failure by the Claimant to adhere to the procedural requirements can be overcome by giving permission to the Defendant to rely upon the second witness statement of Mr Leak. In those circumstances I give permission to admit the evidence of Ms May, Mr Marks and Ms Niedzielska. I also give permission for the admission of the second witness statement of Henry Leak. The application to rely on paragraphs 43-47 of the Claimant’s Skeleton Argument[37]At paragraphs 43-47 of the Claimant’s skeleton argument it is argued that it was irrational for the Defendant not to ‘read across’ the definition of health need from paragraphs 50-53 of the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (“National Framework for Adults”). Particular reliance is placed on the guidance (at paragraph 51) that a health need is one related to the control, management or prevention of illness and the care or aftercare of a person with those needs.[38]Ms Davies, counsel for the Claimant, submits that the matters set out at paragraphs 43-47 of her skeleton argument are a natural and logical extension of the pleaded grounds of challenge. In the alternative Ms Davies submits that permission should be granted to add these grounds as such an amendment could be made without causing unfairness to the Defendant. In making that submission Ms Davies referred to paragraph 7.11.2 of the Administrative Court Guide, which states:
“The Court has a discretion whether to permit amendments and will take into account any prejudice that would be caused to the other parties or to good administration.”
[39]Mr Mant KC, counsel for the Defendant, submits that paragraphs 43-47 of the Claimant’s skeleton argument raise new grounds, and that permission to rely on those grounds should be refused. At paragraphs 62-65 of his skeleton argument, Mr Mant responds to the arguments put at paragraphs 43-47 of the Claimant’s skeleton argument.[40]In my judgment paragraphs 43-47 of the Claimant’s skeleton argument raises a distinct new ground of challenge, as the contention that the Defendant erred by not applying the definition of health needs in the National Framework for Adults raises a distinct and different argument to those set out in existing grounds (i) and (ii). The argument is distinct in that it alleges a specific failure to have regard to and apply statutory guidance.[41]In my judgment permitting the Claimant to rely on this new ground would not cause unfairness to, or otherwise prejudice the Defendant as it has responded to this ground in its skeleton argument. In addition permitting reliance on that additional ground would not cause delay or otherwise prejudice good administration. For those reasons I grant permission to rely upon this additional ground. The Legal Framework[42]Section 3(1) of the National Health Service Act 2006 (“the 2006 Act”) provides:
“3 Duties of integrated care boards as to commissioning certain health services (1) An integrated care board must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the people for whom it has responsibility— (a) hospital accommodation, (b) other accommodation for the purpose of any service provided under this Act, (c) medical services other than primary medical services (for primary medical services, see Part 4), (d) dental services other than primary dental services (for primary dental services, see Part 5), (e) ophthalmic services other than primary ophthalmic services (for primary ophthalmic services, see Part 6), (f) nursing and ambulance services, (g) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as the board considers are appropriate as part of the health service, (h) such other services or facilities for palliative care as the board considers are appropriate as part of the health service, (i) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as the board considers are appropriate as part of the health service, and (j) such other services or facilities as are required for the diagnosis and treatment of illness.”
[43]Section 3 of the 2006 Act imposes a duty on an integrated care board (“ICB”) to arrange for the provision of the services described at paragraphs (a) to (j). The duty imposed by subsection (1) is not an unqualified duty. As is apparent from the words of subsection (1) the duty it imposes is qualified in the following ways: i) The matters listed at paragraphs (a) to (j) are to be provided to such extent as an ICB considers necessary to meet the reasonable requirements of the people for whom it has responsibility. ii) In relation to paragraph (i) (other services or facilities) an ICB must arrange for their provision (to such extent as it considers necessary to meet reasonable requirements) “as the board considers are appropriate as part of the health service”.[44]Section 17 of the 1989 Act provides (so far as relevant):
“17. Provision of services for children in need, their families and others. (1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)— (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. … (6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or . . . in cash. … (10) For the purposes of this Part a child shall be taken to be in need if— (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or (c) he is disabled, and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living. (11) For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed; and in this Part “development” means physical, intellectual, emotional, social or behavioural development; and “health” means physical or mental health. …”
[45]Section 20 of the 1989 Act provides (so far as relevant):
“(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of— (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care. … (3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation. …”
[46]In R v. North and East Devon Health Authority ex parte Coughlan [2001] QB 213 the Court of Appeal considered the relationship between the duties imposed on the NHS and on local authorities. The meaning and effect of section 3 of the National Health Service Act 1977 (“the 1977 Act”) (the predecessor to section 3 of the 2006 Act) was considered by Lord Woolf MR giving the judgment of the court. At paragraph 23 Lord Woolf referred to the two qualifications to section 3 which I have noted at paragraph 43 above. At paragraph 26 Lord Woolf said that section 3(1) does not impose an absolute duty to provide the specified services, and that the Secretary of State is entitled to take account of the resources available. The court considered the range of duties imposed upon local authorities and at paragraph 30 Lord Woolf set out the conclusions reached by the court:
“30 The result of the detailed examination of the three sections can be summarised as follows. (a) The Secretary of State can exclude some nursing services from the services provided by the NHS. Such services can then be provided as a social or care service rather than as a health service. (b) … (c) … (d) The fact that some nursing services can be properly regarded as part of social services care, to be provided by the local authority, does not mean that all nursing services provided to those in the care of the local authority can be treated in this way. The scale and type of nursing required in an individual case may mean that it would not be appropriate to regard all or part of the nursing as being part of " the package of care" which can be provided by a local authority. There can be no precise legal line drawn between those nursing services which are and those which are not capable of being treated as included in such a package of care services. (e) The distinction between those services which can and cannot be so provided is one of degree which in a borderline case will depend on a careful appraisal of the facts of the individual case. However, as a very general indication as to where the line is to be drawn, it can be said that if the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide to the category of persons to whom section 21 of the 1948 Act refers and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide, then they can be provided under section 21. It will be appreciated that the first part of the test is focusing on the overall quantity of the services and the second part on the quality of the services provided. (f) The fact that care services are provided on a means tested contribution basis does not prevent the Secretary of State declining to provide the nursing part of those services on the NHS. However, he can only decline if he has formed a judgment which is tenable and consistent with his long-term general duty to continue to promote a comprehensive free health service that it is not necessary to provide the services. He cannot decline simply because social services will fill the gap.”
[47]Coughlan was a case concerned with adult care. In R (on the application of T, D and B) v. London Borough of Haringey [2005] EWHC 2235 (Admin) Ouseley J considered a case concerning provision for children. At paragraph 61, he said that the discussion in Coughlan was helpful as to the indicators which are relevant to a case concerning children. At paragraph 62, when considering the distinction between health and social care provision, Ouseley J said:
“62. The scale and type of nursing care is particularly important as is the question of whether its provision is incidental or ancillary to the provision of some other service which the social services authority is lawfully providing, and whether it is of a nature which such authority can be expected to provide.”
[48]Ouseley J described Section 3 of the 1977 Act as providing for a ‘target duty’ or something to be aimed at, not a specific duty (Haringey at paragraph 104).[49]In R (on the application of St Helens Borough Council) v. Manchester Primary Care Trust [2008] EWCA Civ 931 a local authority responsible for social care challenged a decision by a primary care trust not to fund the provision of care to a woman with mental and psychological conditions as health care. An application for permission to proceed with a claim for judicial review was refused by the High Court. The Court of Appeal dismissed an appeal against that decision. As a decision on permission the Court of Appeal’s judgment is of strong persuasive authority but is not binding on this court. The Court held that a decision made by a primary care trust is open to review on orthodox judicial review principles (paragraph 33). i) At paragraph 11 May LJ (with whom the other members of the court agreed) referred to his earlier decision to refuse permission to appeal on the papers, and said:
“… viewed in the round, it was not a surprising decision in the general circumstances of this most unfortunate case. I had in mind here the idea that most of the care was in the nature of looking after, helping and on occasions restraining PE, not administering to or caring for her health; and that, although it was intense, sustained and perhaps complicated care, those features did not appear to convert what was essentially social care into health care. PE had after all been cared for by St Helens social services for many years by people whose training and expertise were not essentially in health care.” ii) At paragraph 19 May LJ said: “19 The dividing line, depending on the facts of the particular case, depends on whether the person’s care needs are primarily health care needs, and by contrast whether they are of a nature which a local authority, whose primary responsibility is to provide social services, could be expected to provide: see R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213. Lord Woolf MR giving the judgment of the court in that case said, at para 21, that, as the 1948 Act makes clear, the 1977 Act (now the 2006 Act) is the dominant Act consistent with the long standing role of local authorities as providing assistance as a last resort. I understand this to mean that the 2006 Act is dominant, not in the sense that a decision under that Act will trump any decision of the local authority, but that it is to that Act which the court must go to determine what are health care needs. As I have said, however, the same Secretary of State has a deciding and directing role to play under both statutes.”
The Grounds of Challenge[50]The Claimant relies upon the following grounds of challenge: i) The Defendant’s approach to the definition of ‘health needs’ is irrational and/or unreasonable in that it does not recognise that BH plays a crucial role in supporting BL’s health needs which are not met by universal or specialist services ii) The Defendant’s approach to the definition of ‘health needs’ is irrational and/or unreasonable in that it is limited to clinical need iii) The Defendant failed to or failed adequately to take into account the fact that a very specialist placement such as BH was required in order to facilitate BL’s discharge from hospital iv) The Defendant has adopted a contradictory approach to funding BL’s placement to that taken in other cases v) The Defendant has failed to follow or adequately follow the National Implementation Plan for Learning Disabilities in respect of funding. vi) The Defendant has failed to adhere to the recommendations contained in the Serious Case Review of ‘David’, which it had indicated it accepted in full. vii) The Defendant failed to have regard to and apply the guidance given on health needs in the National Framework for Adults.[51]Ms Davies, counsel for the Claimant, accepts that the challenge must be determined by the application of orthodox judicial review principles. Grounds 1 and 2[52]In her oral submissions Ms Davies said that there was a significant overlap between grounds 1 and 2 and she addressed them together. I take the same approach in this judgment.[53]Ms Davies submits that the Defendant acted irrationally or unreasonably when it determined that BL’s placement at BH does not provide any form of specialist health support for her, and that it should not make a contribution towards the cost of that placement.[54]Ms Davies submitted that the services provided to BL at BH fall within the ambit of section 3(1)(i) of the 2006 Act as services preventing mental illness and a degree of after-care following a mental health crisis. Ms Davies submits that the Defendant acted irrationally when it determined that it would not fund services for the prevention of illness and providing after-care. In support of that central submission, Ms Davies: i) Relies on the fact that, on a daily basis, staff at BH implement the PBS plan for BL as being a prime example of services falling within section 3(1)(i) of the 2006 Act. ii) Relies upon the fact that, on 20th September 2023, the Defendant offered to make a contribution of 5% of the costs of BL’s placement at BH. iii) Argues that BL’s position is analogous to that of ‘Jane’ in the case of Manchester University Hospitals Foundation Trust v. JS (by her litigation friend MS) and Manchester City Council [2023] EWCOP 12. iv) Argues that the specialist support at BH is preventing BL suffering another mental health crisis. That level of support includes 2:1 supervision and waking nights.[55]Mr Mant submits that the challenge is, in effect, a challenge to outcome not to process. He submits that, the Defendant was required to make a judgment as to whether it considered that the services provided at BH were appropriate as part of the health service. He submits that the judgment reached was not unreasonable or irrational as: i) The relevant services were limited to general support and looking after of a kind routinely commissioned as social care. ii) The services could be provided by the Claimant under section 17 of the 1989 Act. iii) The fact that BH provides structure and stability which is of general therapeutic benefit does not make the placement a health service. iv) A requirement to manage behavioural needs does not indicate there is a need for anything other than social care support. v) Implementation of a PBS plan devised by a health commissioned service is part of the general role of social care staff not a health care function. vi) Reliance upon the Manchestercase is misplaced as the judge in that case was considering and applying the definition of medical treatment in section 145 of the MHA 1983. vii) Even if the services provided at BH could be characterised as being for the prevention of illness the Defendant had a discretion as to whether to meet those needs.[56]The Claimant relies upon Wednesbury unreasonableness. Under the Wednesbury principlethe decision must be not only unreasonable in itself but be so unreasonable that no reasonable authority could have come to it.[57]The Claimant does not identify any defect in the chain of logic or reasoning, but submits that the decision was unreasonable or irrational. As Mr Mant submitted, that is a challenge to the outcome of the decision making process.[58]As stated by Lord Woolf at paragraph 26 in Coughlan section 3 of the 2006 Act does not impose an absolute duty to provide specified services.[59]The main example relied upon by Ms Davies in support of her argument is that the staff at BH implement the PBS plan prepared for BL. The review carried out in January 2024 considered the PBS plan. In the review it was noted that the PBS plan was provided to BH (the placement) and that the staff at BH received training and advice on how to support BL and how to follow and integrate the PBS plan into the placement. On the basis of the assessment carried out in the review the Defendant concluded that the placement does not provide any form of specialist health support for BL and that there was no evidence to support joint funding. At the Super Extra-Ordinary Meeting Mr Leak of the Defendant stated that there were no health professionals within the placement units or any specialist skills that would warrant additional health funding.[60]It does not follow from the fact that implementing the PBS plan may be said to meet a health need, and therefore be a service for the prevention of illness, and a service for after care of persons who have suffered for illness, that the Defendant acted unreasonably in failing to fund the provision of that service. In my judgment the implementation of the PBS plan by social care staff at BH can be said to be incidental or ancillary to the provision of such specialist accommodation and is of a nature which an authority whose primary responsibility is to provide social services can be expected to provide. The fact that social care staff were implementing a PBS plan did not convert what was essentially social care into health care. Further the fact that care was of therapeutic benefit does not automatically make it health care. As a result the Defendant’s decision that it was not appropriate for it to fund that service as part of the health service cannot be said to be unreasonable or irrational in the Wednesbury sense.[61]In September 2023 the Defendant offered to make a contribution of 5% of the total cost of BL’s placement at BH. The maker of the offer stated that it was made based upon the information available at that time in relation to BL. In January 2024 a full review was carried out and the Defendant decided not to make a contribution to the cost of the placement. The challenge in this application for judicial review is to the January 2024 decision. The reasons for the January 2024 decision are found in the review document and in the minutes of the Super Extra-Ordinary Meeting. The fact that an earlier offer was made does not support the submission that the decision reached in January 2024 was so unreasonable that no reasonable authority could ever have come to it, as the January decision is based upon the information available at that time and founded upon, and supported by the review document and the minutes of the Super Extra-Ordinary Meeting.[62]I accept Mr Mant’s submission that the Claimant’s reliance on the Manchester case is misplaced. At paragraphs 69 to 71 of the judgment HHJ Burrows was considering and applying the definition of ‘medical treatment’ in section 145 of the MHA 1983. That statute is not engaged in this case.[63]By grounds 1 and 2 the Claimant seeks to challenge the exercise of a discretionary power to provide or fund services. That power is qualified in two ways. An ICB must make provision to such extent as it considers necessary to meet the reasonable requirements of the people for whom it has responsibility. In the case of services falling under section 3(1)(i) of the 2006 Act, the duty is to provide such services “… as the board considers are appropriate as part of the health service, …”.[64]Even if the services provided were for the prevention of illness, and/or for the after care of persons who have suffered from illness, the Defendant was only obliged to provide such services as it considered were appropriate as part of the health service. The Defendant did not consider that it was appropriate to contribute to the placement at BH as part of the health service, and none of the arguments advanced on behalf of the Claimant establish that its decision was unreasonable or irrational in the Wednesbury sense.[65]For those reasons grounds 1 and 2 are not made out. Ground 3[66]The Claimant contends that the Defendant failed to take into account the fact that a very specialist placement such as that at BH was required in order to facilitate BL’s discharge from hospital.[67]Ms Davies places particular reliance upon the fact that when at BH BL was on 2:1 supervision including waking night staff due to concerns about her mental health needs.[68]Mr Mant submits that i) The Defendant was aware of the nature of the placement and of the care being provided. ii) The fact that BL’s discharge from hospital was delayed while a suitable placement was found is not directly relevant to the funding decision which was based upon the nature of the provision. iii) BL did not remain in hospital as she had a clinical need to be there.[69]In his first witness statement Mr Leak states that BL was admitted to Chelsea and Westminster Hospital on 19th July 2023 and deemed fit for discharge the following day. As BL’s mother refused to take her home, discharge could only be facilitated by identification of a placement. BL did not remain in hospital for healthcare related reasons.[70]It is clear from the Review of the Joint Request for Funding conducted in January 2024 that the Defendant took into account the specialist nature of the placement at BH. The details of the services offered by BH are set out in the review document. For the reasons set out when considering grounds 1 and 2 in my judgment the Defendant considered the nature of the services provided at BH and came to a reasoned conclusion that it was not appropriate to arrange for their provision (or fund them) as part of the health service. The fact that BL received 2:1 supervision including waking night staff does not determine that the services provided were healthcare services. In coming to that conclusion the Defendant recorded in the review document the fact that BL was admitted to the Chelsea and Westminster Hospital in July 2023 and remained there until 5th September 2023. It was further recorded that at the time that BL was in hospital, BL’s mother could no longer continue supporting her at home.[71]This ground fails on the facts. There was no failure to take into account that BL’s placement at BH was required in order to allow her to be discharged from hospital. Ground 4[72]The Claimant contends that the Defendant erred by taking a contradictory approach to funding decisions in relation to different cases.[73]The Claimant relies upon a number of ‘case studies’ drawn up in a document produced by the Claimant and Westminster City Council in November 2023.[74]The Defendant submits that each case was determined on its own facts and that equal treatment does not constitute a free-standing ground for judicial review (R (Gallagher Group Ltd and others) v. Competition and Markets Authority [2019] AC 96 at paragraph 24).[75]The case studies relied upon by the Claimant relate to different individuals and to a range of different needs and circumstances.[76]Given that each individual person’s social and healthcare needs differ it would be difficult to establish that the facts of one case were the same or sufficiently similar to another, and the Claimant has not done so.[77]I accept Mr Mant’s submission that equal treatment is not recognised as a distinct principle of administrative law.[78]The fact that different funding decisions were made in relation to different cases, each based upon their own facts, does not establish any breach of an administrative law principle.[79]For those reasons I reject this ground of challenge. Ground 5[80]The Claimant contends that the Defendant has failed to follow or adequately follow the National Implementation Plan for Learning Disabilities in respect of funding.[81]The National Implementation Plan for Learning Disabilities recommended the creation of “Transforming Care Partnerships” and “Building the Right Support” to develop community services and close mental health inpatient services.[82]The Claimant does not identify any statement in the National Implementation Plan which provides guidance on drawing a distinction between social care provision and health care provision.[83]In her skeleton argument Ms Davies submits that the fact that the Defendant’s decision is contrary to the National Implementation Plan for Learning Disabilities “… is further evidence of the irrationality and/or unreasonableness of its decision-making process”.[84]In making that submission Ms Davies does not identify the basis upon which she submits that the decision under challenge is contrary to the National Implementation Plan. Therefore the factual premise on which the submission is made is not established. Further no substantive arguments have been advanced to support the contention that the decision made under section 3(1)(i) of the 2006 Act was so unreasonable that no reasonable authority could have come to it.[85]For those reasons this ground of challenge fails. Ground 6[86]On behalf of the Claimant it is submitted that the Defendant failed to adhere to the recommendations contained in the Serious Case Review of ‘David’.[87]The specific recommendations which it is contended that the Defendant did not adhere to are not identified in the Claimant’s Statement of Grounds and are not identified in Ms Davies’s skeleton argument.[88]Mr Mant submits that neither the report nor the Defendant’s acceptance of its recommendations can give rise to a legal duty to fund BL’s placement. He further submits that the Serious Case Review was raised at the Super Extra-Ordinary Meeting and therefore it was taken into account.[89]In his witness statement Mr Leak says that the Serious Case Review made a number of general recommendations about working together, and that the Defendant acted on the recommendations by creating a Quality Assurance post in 2022. The main focus of the role was to undertake quality assurance of jointly funded placements.[90]In advancing this ground of claim, the Claimant: i) Has not identified the recommendations of the Serious Case Review which it is said that the Defendant has not adhered to in this case; ii) Has not identified how a failure to adhere to those recommendations which could give rise to administrative law error. iii) Has not identified how any failure to follow those recommendations bore upon the Defendant’s decision made pursuant to section 3(1)(i) of the 2006 Act.[91]For those reasons I reject this ground of challenge. Ground 7[92]Regulation 21 of the 2012 Regulations provides (so far as relevant):
“21.—(1) In exercising its functions under or by virtue of sections 3, 3A or 3B of the 2006 Act, insofar as they relate to NHS Continuing Healthcare, a relevant body must comply with paragraphs (2) to (11). (2) A relevant body must take reasonable steps to ensure that an assessment of eligibility for NHS Continuing Healthcare is carried out in respect of a person for which that body has responsibility in all cases where it appears to that body that— (a) there may be a need for such care; or (b) an individual who is receiving NHS Continuing Healthcare may no longer be eligible for such care. … (12) In carrying out its duties under this regulation, a relevant body must have regard to the National Framework.”
[93]The following definitions are included in regulation 20 of the 2012 Regulations:
“ “National Framework” means the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care issued by the Secretary of State and dated; “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;”
[94]The National Framework for Adults is a framework relating to healthcare provision for adults.[95]The effect of Ms Davies’ submissions on this ground is that the Defendant erred when it failed to have regard to the National Framework for Adults. Ms Davies relies upon paragraph 25 in R (on the application of Whapples) v. Birmingham Commissioning Group [2015] PTSR 1398 where Burnett LJ (as he then was) with whom the other members of the court agreed, said:
“The interpretation of the National Framework is ultimately a matter for the court having regard to its development, statutory context and purpose. In discharging its functions the CCG was obliged to take the National Framework into account. The CCG is susceptible to challenge on Wednesbury principles (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223) for failing to consider the National Framework, or misconstruing or misapplying it: see R v North Derbyshire Health Authority, Ex p Fisher (1997) 38 BMLR 76, 89, per Dyson J.”
[96]Mr Mant submits that the Defendant, when considering a case concerning a child, was not required to ‘read across’ or have regard to the National Framework for Adults when considering a case involving a child.[97]Mr Mant further submits that, even if the National Framework for Adults was material, regard would have to be had to the whole of the document. He submits that even if a person has ‘health needs’ that is not determinative of whether an ICB should make provision to meet those needs, as the decision on whether to provide services depends upon an assessment of whether the relevant person has a ‘primary health need’ as referred to at paragraph 55 of the National Framework for Adults.[98]There are different and distinct framework documents relating to adults and to children. It cannot be said that the framework relating to adults was an obviously material consideration when making a decision relating to a child. For that reason the Defendant did not err by failing to have regard to the National Framework for Adults.[99]For those reasons I reject this ground of challenge. Conclusion[100]For the reasons I have given the claim for judicial review fails and the application is dismissed.