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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Keating & Ors, R (on the application of) v Cardiff Local Health Board  EWCA Civ 847 (06 July 2005)
Cite as:  WLR 158,  1 WLR 158,  EWCA Civ 847
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Moses
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LADY JUSTICE ARDEN
LORD JUSTICE LONGMORE
| The Queen (on the application of Paul Keating & Others)
|- and -
|Cardiff Local Health Board
Javan Herberg (instructed by Welsh Health Legal Services) for the Respondents
Sarah Moore (instructed by the Office of the Solicitor, Department of Health) for the Department of Health as Interveners
Hearing date: 5th July 2005
Crown Copyright ©
Lord Justice Brooke:
"The relief of poverty through the provision of free legal advice and assistance to persons who, for reasons of poverty, would otherwise be unable to obtain such advice, and providing such persons with services they could not otherwise afford through lack of means."
"... to secure, for the residents of Cardiff, the provision of [a] range of health care for defined client groups and specialities."
"Tackling ill health means addressing these challenges including economic and social inequality. ….. The experience of poverty for some of our citizens often lies at the root of ill health, unhealthy lifestyles and contributes to a sense of hopelessness."
"Not only is it a specialist service in terms of the types of benefits applications and appeals ... but also because of the specialist support given to people with mental health difficulties. The added stress and pressure of losing income through benefits, months of uncertainty, and appearing at appeals can lead to a deterioration in the mental health of the clients and they need expert help. That is what the project provides. There is no other such provision in Cardiff."
"... [I]t was not felt that your organisation was delivering health outcomes in line with the Local Health Board's service and Financial Framework." "
"In consideration of the recommendations of the Advisory Group, the Review Panel were informed by the Director of Finance that she had concerns that the LHB, by funding such a service, were operating outside the existing financial instructions... In view of this advice the Review Panel agreed to discuss as soon as possible opportunities for the service to be considered for alternative funding sources, eg flexibilities funding, but that the current [service level agreement] could not be renewed from April 2005."
"Secretary of State's duty as to health service
1(1) It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement -
(a) in the physical and mental health of the people of those countries, and
(b) in the prevention, diagnosis and treatment of illness,
and for that purpose to provide or secure the effective provision of services in accordance with this Act.
(2) The services so provided shall be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed.
Secretary of State's general power as to services
2. Without prejudice to the Secretary of State's powers apart from this section, he has power -
(a) to provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act; and
(b) to do any other thing whatsoever which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.
3 (1) It is the Secretary of State's duty to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements -
(a) hospital accommodation;
(b) other accommodation for the purpose of any service provided under this Act;
(c) medical, dental, nursing and ambulance services;
(d) such other facilities for the care of expectant and nursing mothers and young children as he considers are appropriate as part of the health service;
(e) such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service;
(f) such other services as are required for the diagnosis and treatment of illness."
"Co-operation and assistance
21. Local social services authorities
(1) Subject to paragraphs (d) and (e) of section 3(1) above, the services described in Schedule 8 to this Act in relation to –
a) care of mothers and young children,
b) prevention, care and after-care,
c) home help and laundry facilities,
are functions exercisable by local social services authorities, and that Schedule has effect accordingly."
"1. (1) A local social services authority may, with the Secretary of State's approval, and to such extent as he may direct shall, make arrangements for the care of expectant and nursing mothers and of children who have not attained the age of 5 years…
2. (1) A local social services authority may, with the Secretary of State's approval, and to such extent as he may direct shall, make arrangements for the purpose of prevention of illness and for the care of persons suffering from illness and for the after-care of persons who have been so suffering;
(b) the provision, for persons whose care is undertaken with a view to preventing them from becoming ill, persons suffering from illness and persons who have been so suffering, of centres or other facilities for training them or keeping them suitably occupied and the equipment and maintenance of such centres;
3. (1) It is the duty of every local social services authority to provide on such a scale as is adequate for the needs of their area, or to arrange for the provision on such a scale as is so adequate, of home help for households where such help is required …
and every such authority has power to provide or arrange for the provision of laundry facilities for households for which home help is being, or can be provided, under this sub-paragraph."
Lady Justice Arden:
Lord Justice Longmore :
"Does the Secretary of State have power to provide services for the prevention of illness, the cure of persons suffering from illness and the after care of persons who have suffered from illness by persons other than persons engaged in providing medical, dental, nursing and ambulance services?"
He submitted that the Secretary of State had a duty to provide such services pursuant to section 3(1)(e) of the National Health Service Act 1977, if she considered them appropriate, and he gave the services of care workers as the most obvious example. He then submitted that, either at common law in the light of such duty or pursuant to section 2 of the Act, the Secretary of State had the power to provide such services and that, since the duty under section 3 had been devolved to local health boards, the Cardiff Local Health Board likewise had that power.
(a) hospital accommodation;
(b) medical nursing and other services required at or for the purpose of hospitals;
(c) the services of specialists.