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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 [2005] EWCA Civ 847 (06 July 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/847.html Cite as: [2005] EWCA Civ 847, [2006] 1 WLR 158, [2006] WLR 158

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Moses

[2005] EWHC 559 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th July 2005

Lord Justice Brooke:

1. This is an appeal by the claimants, who are clients of Riverside Advice Ltd ("Riverside"), from a judgment of Mr Justice Moses on 23^rd March 2005 ([2005] EWHC 559 (Admin)) when he dismissed their application for judicial review against the defendants, the Cardiff Local Health Board, in relation to their refusal to provide funding for the Riverside Advice project, otherwise than through a special "Flexibility Fund" administered jointly with the local authority. Because the judge's interpretation of ss 1-3 of the National Health Service Act 1977 ("the 1977 Act") was said to have widespread ramifications, we permitted the Department of Health to intervene in this appeal with written and oral submissions. We also received written submissions, in the form of short letters, from both the Welsh Assembly and Mind, the well-known mental health charity.
2. I draw the facts of the case largely from the judge's admirably clear judgment. Riverside is running a project called a "Welfare Rights Project for Clients Experiencing Mental Health Difficulties". It is designed for those who suffer from mental health illness. Its purpose is to ensure that people with mental health difficulties may call on specialist support. Riverside can respond to their needs and to help them obtain the benefits to which they are entitled. From April 2003 onwards it received funding from the defendant board, which was later extended until April 2005.
3. In June - July 2004 the Cardiff and the Vale of Glamorgan Local Health Boards conducted a joint review of voluntary services, in which they concluded that Riverside had met all the criteria they specified, otherwise than in minor and immaterial respects. Riverside achieved the highest achievable score within the review, which recommended a new three-year agreement. At the meeting of the review panel on 12th July 2004, however, the defendants' director of finance took the view that it would be ultra vires for the defendants to fund the project any further.
4. As a result of this decision, funds could now only be provided to Riverside by the defendants for the 2005-6 period from a NHS Flexibilities Grant. This grant was available from a fund known as the Flexibilities Fund, which is jointly administered by the defendants and the local authority. However, the amount available from this fund for 2005-6 was only about two thirds of the sum the project had previously been receiving, leaving a shortfall of about £18,000. We have been told that in future years this shortfall would not necessarily continue, because the Flexibilities Fund would not then be constrained in the amount it could provide as a result of other commitments it had previously made.
5. The issue at the centre of this appeal does not relate to the value of Riverside's work, which receives universal praise: the defendants have told us that there is no issue as to the valuable nature of its activities in improving the quality of life for those with mental health difficulties. It relates instead to the question whether the defendants are correct when they says that it would be outwith their powers if they were to continue to fund this project. Their view of the law is not shared by the Department of Health or by the Welsh Assembly, although neither had articulated their thinking on the matter until after they had had an opportunity to study a copy of Moses J's judgment.
6. The aims of the project are embraced by Riverside's purposes as set out in its Memorandum of Association:

"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."

7. The only service level agreement that exists between the defendants and Riverside identified Riverside's services as "Welfare benefits advice to people with mental health problems." The objectives of the agreement were described as:

"... to secure, for the residents of Cardiff, the provision of [a] range of health care for defined client groups and specialities."

8. The agreement professed that it was "underpinned" by the mutual commitment of both parties to ever improving health. The services to be provided were described as including specialist expertise and knowledge of the needs of people with mental health difficulties and their entitlement to social security benefits; representation at Social Security Appeal Tribunals and to Commissioners; flexible service delivery to respond to the needs of the client group (including home visits, hospital visits and meetings at other appropriate venues); and consultancy, telephone advice and support to people working with clients with mental health difficulties.
9. Riverside's end of year report for the period between 1^st March 2002 and 31^st March 2004 described the project as being all about providing advice to those suffering from mental health in relation to their benefits. The report identified the strategies and plans pursuant to which Riverside undertook its work. In particular it quoted the Minister for Health and Social Services who had written in her Foreword to a publication called "Improving Health in Wales":

"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."

10. The need to resolve the difficulties of the mentally ill when they seek to access the benefits to which they are entitled, and thereby prevent their health from deteriorating due to stress, was alluded to by a solicitor at the Public Law Project who is acting for the claimants in these proceedings. She says of the project:

"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."

11. Mr Bland, who is a specialist welfare rights caseworker employed by Riverside, described the nature of his work in his witness statement. He said that his clients, who have a range of mental health difficulties, experience an exacerbation of those difficulties due to the challenges and stresses of dealing with the social security system. In contrast, the advice and support Riverside can offer maintains and improves their mental well-being. Clients with mental health problems are particularly concerned about disclosing information to anyone, because they think this may lead to their being compulsorily detained. For this reason they do not like to disclose the full impact of their problems.
12. Because Mr Bland is a mental health specialist, Riverside's clients appear more relaxed and able to discuss the full impact of their condition in their discussions with him. He described one client who suffered from such severe anxiety at the prospect of attending an appointment to discuss welfare benefits that he was quite unable to attend that appointment, and he therefore lost his entitlement. When Mr Bland was able to attend the appointment with him and give him support and reassurance, his fear and anxiety were reduced.
13. The report of the joint review was published in September 2004. It recommended moving to a three-year agreement as opposed to a one-year agreement, subject to the implementation of an agreed action plan. However, there followed a letter from the defendants' chief executive dated 27th September 2004 to the effect that the defendants had decided to give Riverside six months' notice of termination of its service level agreement. The letter contained this sentence:  

"... [I]t was not felt that your organisation was delivering health outcomes in line with the Local Health Board's service and Financial Framework."   "

14. Soon afterwards Riverside was told that the problem had arisen because the defendants' director of finance was concerned that they had no statutory authority to provide further funding. The chair of the review panel recorded in the panel's conclusions:  

"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."

15. The judge considered that the phrase in this letter which described Riverside as merely providing a welfare benefit advice service was plainly inadequate. He said that the project was targeted at mental health sufferers, and that its purpose was to ameliorate the consequences of mental illness, exacerbated by their difficulties in coping with the social security system upon which so many of them relied. But notwithstanding the success of the project in this field, the essential question he had to determine was whether the defendants had statutory authority to fund it.   The answer to this question turned on whether the work undertaken by Riverside could constitute a health service provision that came within the National Health Service Act 1977 ("the 1977 Act").
16. The search for an answer necessitates an examination of the provisions of ss 1-3 of that Act. They provide:

"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. 

Services generally

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."

17. By reg 3(1) and column 1 of sch 1 of the National Health Service (Functions of Health Authorities and Administration Arrangements) Regulations 1996 ("the 1996 Regulations"), every health authority was charged with the duty of exercising "the specified health service functions" on behalf of the Secretary of State. These functions included the Secretary of State's functions relating to the health service under ss 2 and 3 of the 1977 Act. Until 2003 the Bro Taf Local Health Authority was the relevant health authority. At midnight on 31^st March 2003, as a consequence of the combined effect of s 27 of the Government of Wales Act 1997, s 16BB(1) of the 1977 Act, the Local Health Boards (Establishment) (Wales) Order 2003 and the Local Health Boards (Functions) (Wales) Regulations 2003, the health service functions previously exercised by the Bro Taf Local Health Authority were transferred first to the National Assembly for Wales, and then to the defendant board. Responsibility for performing the duties of the Secretary of State under s 1 of the 1977 Act has always remained vested in the Secretary of State.  
18. The duty of the Secretary of State under s 1 is to be distinguished from the duties identified in s 3. It has been described in these proceedings as a "target duty" (see, for instance R v Secretary of State for Social Services ex p Hincks [1980] 1 BMLR 93 and R(A) v Lambeth BC ex p A [2001] EWCA Civ 1624, [2002] LGR 163). The judge correctly observed that it was not at all surprising that this duty was not imposed on local health authorities (so as to be available to be transferred to a Welsh Local Health Board in due course), since it is a duty to continue the promotion in England and Wales of a comprehensive health service, coupled with a duty to provide or secure the effective provision of services for that purpose.  
19. The main issue to be determined on this appeal is whether the word "facilities" in s 3(1)(e) of the 1977 Act can be interpreted as including not only the accommodation, plant and other means by which services are provided or by which they more readily achieve their purpose, but also as including the human beings who actually provide the services referred to in that sub-section.
20. The judge's approach was to start by noticing that a distinction is made in s 3(1) between "services" and "facilities". The services specifically mentioned in that sub-section are medical, dental, nursing and ambulance services (see s 3(1)(c)). Because their purpose is not identified, the judge said that they might be deployed for any purpose. For instance, they could be used for securing an improvement in physical and mental health and in preventing illness, as well as for diagnosing and treating it, to the extent that the Local Health Board considered it was necessary to provide them to meet all reasonable requirements (see the opening words of s 3(1)).
21. The judge said that the "other services" identified by s 3(1)(f) were plainly not medical, dental, nursing and ambulance services, and the purposes for which those services might be provided were limited to diagnosis and treatment of illness. He found it striking that s 3(1)(f) made no reference to the prevention of  illness. Thus the obligation to provide "other services", in contrast to the  obligation to provide medical or dental services, was limited to those required  for the diagnosis and treatment of illness, and s 3(1)(f) could not therefore avail Riverside, as had been urged upon him in its submissions to him.
22. The judge said that the only means by which Riverside could bring itself within s 3(1) was by bringing its work within s 3(1)(e). In short, Riverside had to show that it provided "... facilities for the prevention of illness, the care of persons suffering from illness, and the after-care of persons who have suffered from illness..."
23. He continued to be struck, however, by the fact that the provisions of s 3(1) drew a distinction between a facility and a service. The word "facility" was not defined in s 128 (the interpretation section), but it did appear in other parts of the Act. For instance, it was used in s 23 (which confers a power on the Secretary of State to make available to any voluntary organisation eligible for assistance under the Health Services and Public Health Act 1968 "any facilities... provided by him for any service under this Act"). The word also appeared in s 72 (which makes provision for applications to be made to the Secretary of State for permission to use accommodation or facilities for the purposes of providing medical, dental, nursing or ambulance services).
24. The judge thought that further light was thrown on the meaning of the word "facility" in s 3(1) in the structure of that sub-section. He said that sub-sub-sections (1)(a) and (b) refer to accommodation. Sub-sub-section (1)(d) refers to "other facilities", and thereby broadens the earlier reference to a single facility, namely accommodation.
25. He said he took account of the argument of counsel who then appeared for the claimants who drew attention to the language of s 2(b) in this context. This refers to a power to do any other thing whatsoever calculated to facilitate the discharge of a duty. It was argued that a facility is that which facilitates. Thus it is that which makes a service more readily available, or that which eases the path of access.
26. The judge was referred to caselaw which cast light on the meaning of "facility" in different statutory contexts. Thus in Midland Greyhound Racing Co Limited v Foley [1973] 1 WLR 324 a "facility" included anything which facilitated a bookmaker's undertaking and was therefore prohibited under the Betting, Gaming and Lotteries Act 1963. On the other hand, in R v Immigration Appeal Tribunal ex p Kassam [1981] 1 WLR 1037 the word was treated as being akin to goods or services when it was held that the Secretary of State did not provide facilities when he was considering whether to grant leave to enter under the Immigration Act 1971 (so that his activities did not trigger the operation of the Sex Discrimination Act 1975). In Westminster City Council v Ray Alan (Manshops) Ltd [1982] 1 WLR 383 the word "facility" was used in conjunction with the words "accommodation" and "services". A "facility" was regarded as that which made things available to customers to use if they were so minded in "a more passive sense than the activities implied in the word 'services'" (see Ormrod LJ at p 386c). The judge observed, however, that little assistance could be derived from examining the meaning of a word in a different statutory context, and none of the parties who appeared before us suggested that he was wrong to take this view.
27. The judge concluded that in the present case the word "facility" was clearly used in s 3(1) to denote something different from services. If this was not the case, the statute would not have made this distinction. He therefore held that there was no obligation resting on the Secretary of State under s 3(1)(e), and thus on the Local Health Board, to provide a service for the prevention of illness, care, or after-care. On the other hand there was an obligation to provide a facility for those purposes within the narrower meaning of the word "facility" (if the Local Health Board considered that this provision was appropriate as part of the health service).
28. Mr Drabble QC, who appeared for the claimants on the appeal, submitted that the draftsman of s 3(1) was concerned to provide not only for what are normally regarded as mainstream health services, but also for those services which fall into a borderland between health care and social services care. Anything which is designed to secure improvement in physical and mental health and in the prevention, diagnosis and treatment of illness can fall within the bailiwick of the Secretary of State for Health, who has a duty under s 1 of the 1977 Act, in the context of her obligation to promote a comprehensive health service, to provide or secure the effective provision of services to that end. But some care services may also be the responsibility of the local social services authority, and the Act had to do something to make it clear that the Secretary of State shared responsibility in this area with another Government department.
29. Thus, in addition to providing hospital accommodation, providing other accommodation for the purpose of any health care service, and providing medical and dental services (see s 3(1) – (3)), all of which could be described as facilitating health care, the Secretary of State was also obliged to provide other facilities for the care of expectant and nursing mothers and young children (s 3(1)(d)), but on this occasion his obligation was limited by the words "such other facilities… as he considers appropriate as part of the health service". A similar formula is used in s 3(1)(e). (Section 3(1)(f), as the judge observed, is concerned with other services, such as physiotherapy, directed only towards diagnosis and treatment of illness)
30. One would expect, if Mr Drabble's argument is right, to find a reference to someone else providing these services, too, and this appears in s 21, which (in its unamended form) read:

"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."

31. Schedule 8 provides that:

"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."

32. Mr Drabble observed that the proviso at the beginning of s 21(1) suggests that local social services authorities were to provide the services set out in Schedule 8 subject to the extent to which they were already being provided or planned by health service authorities. Furthermore, "laundry facilities" are described among the "services" that may be provided, and one of the other "services" described in Schedule 8 relates to the provision of centres or other "facilities" for training people or keeping them suitably occupied. It would be absurd, Mr Drabble argued, to suggest that the provision of laundry facilities or facilities for keeping people occupied did not include the provision of appropriate staff to deliver those services.
33. Mr Herberg, for the defendants, showed us a number of modern statutory schemes that permit a degree of partnership between different statutory authorities in relation to provision of this kind that was not previously possible. One such development is made possible by reg 4 of the National Health Service Bodies and Local Authorities Partnership Arrangements (Wales) Regulations 2000, made under powers conferred by s 126(4) of the 1977 Act and s 31 of the Health Act 1999. This regulation permits partnership arrangements between NHS bodies and local authorities in relation to the exercise of any NHS functions and health-related functions if the partnership arrangements are likely to lead to an improvement in the way in which those functions are exercised.
34. Mr Herberg also showed us s 28A(2A) of the 1977 Act, inserted by s 29 of the Health Act 1999, which empowers a Local Health Board to make payments to a local social services authority towards expenditure incurred by that authority in connection with any of its functions which in the Board's opinion have an effect on the health of any individuals, have an effect on, or are affected by, any NHS functions, or are connected with any NHS functions.
35. We were also shown how s 24(1) of the National Health Service Reform and Health Care Professions Act 2002 imposes a duty on each local authority in Wales and each Local Health Board any part of which lies within the area of that authority, jointly to formulate and implement a strategy for the health and well-being of members of the public in the local authority's area ("a health and well-being strategy").
36. This exposition of the effect of modern legislation represented, in part, the defendant Board's riposte to the submissions we received from Ms Moore, who appeared for the Department of Health. She told us that the Department was concerned that the judge's interpretation of ss 1-3 of the 1977 Act could potentially undermine key parts of its public health policy agenda. The Department explained to us that a large number of health promotion and disease prevention functions are carried out by a range of professionals (such as dieticians, health trainers and "gateway" workers) who do not come within the group of medical professionals falling within the scope of s 3(1)(c).
37. A recent White Paper "Choosing Health", for instance, committed the Department to introduce and accredit health trainers in poorer communities to encourage people in those communities to live healthier lives. It is specifically intended that such trainers would not be clinicians, but rather individuals working within the community providing non-medical services for the prevention of illness.
38. Another example could be taken from the Department's planned use of "Gateway workers" within the National Health Service to help mental health users (sic) navigate their way round the system. Again, the services provided could not properly be described as medical or nursing services, and the Department would be concerned to ensure that it would be lawful for local NHS bodies to provide such services.
39. The main thrust of Ms Moore's submissions was to the effect that Parliament had imposed on the Secretary of State an obligation to continue the promotion of a comprehensive health service, and the judge's narrow interpretation of the word "facilities" in s 3 of the 1977 Act favoured fragmentation, the very opposite of what Parliament intended.
40. The Welsh Assembly contented itself with saying that it agreed with the Department of Health's submissions. Mind, for its part, expressed concern that the judge's restrictive interpretation of s 3(1)(e) might imperil not only advice centres for the mentally ill, but also facilities concerned with mental health advocacy, day centres, art and recreational therapy, counselling, training, assertive outreach and befriending services, which were all currently supported by NHS funding.
41. I agree that the judge adopted too restrictive an approach to the meaning of the word "facilities" where it appears in s 3(1)(e). As the caselaw suggests – and Mr Drabble added R v Secretary of State ex p Kirklees BC (The Times, 24^th January 1971), where Taylor J proceeded on the basis that the provision of the services of a housing steward was the provision of a "facility" for the occupants of the relevant housing) – its meaning will be derived from the context in which the word is used. It means "that which facilitates". Sometimes the word refers to tools, or accommodation, or plant, which facilitate the provision of a service. Sometimes it refers to an entire service provision, like a laundry service, or the provision of a day centre, which facilitates the prevention of illness, or the care of persons suffering from illness, or the after-care of persons who have suffered from illness. If a Local Health Board wishes to provide a non-nursing day centre, or a hydrotherapy pool, for s 3(1)(e) purposes, because it thinks it appropriate to provide these facilities as part of the health service, it would be absurd, as Mr Drabble argued (with the full support of counsel for the Department of Health), if it was limited to providing the accommodation and the "plant", and somebody else had to provide the personnel to run the facility.
42. Of course it is true, as the judge observed, that in other parts of the 1977 Act, the meaning of the word "facilities" is more narrowly focused, but that is only what one would expect when the draftsman uses a chameleon-like word like "facilities" which takes its colour from its context. Mr Herberg, for his part, was constrained to accept that the word "facilities" might embrace "services" as well in other statutory contexts, but he continued to maintain his clients' stance robustly, notwithstanding the icy winds that assailed his submissions from other bodies with immense knowledge of how the health service works in practice.
43. What this case is concerned to identify is the extent of the health service functions under s 3(1)(e) that may be appropriately and lawfully provided by a Local Health Board. The modern legislation which Mr Herberg showed us was not concerned with such basic definitions. It enabled a whole host of sensible ways in which a Local Health Board exercising health service functions can now co-operate with a local social services authority exercising allied functions in providing an optimum service for the public. This co-operation may be achieved through partnership arrangements, through payments of money, or through the preparation and implementation of joint strategies, but at the end of the day the question remains: what is a Local Health Board lawfully obliged to provide under s 3(1)(e) of the 1977 Act if it considers it appropriate as part of the health service? The answer to that question can only be found in the language of the 1977 Act, and in my judgment it is lawfully able to provide funding for services like the Riverside project, if it considers it appropriate as part of the health service.
44. I would therefore allow this appeal and set aside the judge's order. We will hear counsel as to the precise form of order we should make.
45. Because of the approach I have adopted to the interpretation of s 3(1), it is unnecessary to reach any conclusion on Ms Moore's alternative submission, which Mr Drabble expressly did not adopt. She argued that a Local Health Board like the defendants, which is empowered to perform the health service functions under ss 2 and 3 of the 1977 Act on behalf of the Secretary of State, is obliged pursuant to s 2(a) of the 1977 Act to provide such services as it considers appropriate for the purpose of discharging any duty imposed on the Secretary of State under the Act, and this language encompasses the Secretary of State's s 1 duty to promote a comprehensive, not a fragmented health service.
46. This submission requires the word "he" in the first line of s 2(a) to refer to the Local Health Board, and the word "him" in the second line to mean the Secretary of State, the argument being that no duties are imposed on Local Health Boards under the Act: their role is confined to performing certain functions (including those prescribed by ss 2 and 3) on behalf of the Secretary of State. The submission also requires a certain amount of judicial rewriting of s 2(a) in order to limit Local Health Boards' obligations in this regard to the area of the functions they are required to perform on behalf of the Secretary of State, and not to encompass other duties imposed on the Secretary of State under the Act which she has retained for herself (for example, the duty to provide high security psychiatric services pursuant to s 4).
47. Fortunately, it is possible to resolve this appeal without plunging further into these rather deep waters, and I will therefore restrict myself to noting the submission we received, without making any further comment upon its merits.

Lady Justice Arden:

48. I agree with the judgment of Lord Justice Brooke for the reasons he gives. I desire to add two short points of my own. First, in my judgment Mr Drabble and Ms Moore were correct to say that the use of the word "other " in section 3(1)(d)) is also an indication that the word "facilities" must include (at least) services and accommodation, which are the terms used in section 3(1)(a) and(b). Moreover, although I too would pay tribute to the clarity of the learned judge's judgment, I do not consider that it follows, as he held (in para 50 of his judgment), that it is a necessary implication of the use of the different term "facilities" that that term covers something different from, or narrower than, the term "services".
49. Second, we were pressed by Mr Drabble with the argument that section 3 of the 1977 Act should be construed dynamically on the basis that a statute must be presumed to be always speaking: see Bennion on Statutory Interpretation (2002) para.288. The law on this point was considered by the House of Lords in R (Quintavalle) v Health Secretary [2003] UKHL 13; [2003] 2 AC 687: see per Lord Bingham at paras 8 and 9. In my judgment there is no need to resort to a presumption in this aspect of statutory interpretation. In any event in my judgment the interpretation found by this court is achieved simply by giving Parliament's words their ordinary meaning in the context of the 1977 Act.

Lord Justice Longmore :

50. At the beginning of his address Mr Richard Drabble QC in answer to a question from my Lady described the issue for the court in the following way:-

"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.

51. Mr Herberg for the Cardiff Local Health Board submitted that neither the Secretary of State nor the local health board had such powers because the duty and, therefore, the power, specified in section 3(1)(e) of the 1977 Act was a duty to provide "facilities for the prevention of illness" in contradistinction to medical, dental, nursing and ambulance services, pursuant to subsection (1)(c), and such other services as are required for the diagnosis and treatment of illness, pursuant to subsection (1)(f) which has no reference to services for the prevention of illness.
52. The judge, while characterising the case as "dispiriting", accepted Mr Herberg's argument; that has prompted an intervention by the Secretary of State who has submitted that she does indeed have the duty argued for by Mr Drabble and that it is wrong to regard the sub-sub-sections of 3(1) of the Act as watertight compartments rather than provisions which have a degree of overlap.
53. I agree, for the reasons given by Brooke LJ in his judgment, that the arguments of the Appellants and the Secretary of State are correct and that the appeal should be allowed.
54. I would only add that the NHS is a living and growing organism. It was ambitious when it was set up by the NHS Act 1946. Section 1 of the 1946 Act provided that it was to be the duty of the Minister of Health to promote the establishment in England and Wales of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England and Wales and the prevention diagnosis and treatment of illness and for that purpose to provide or secure the effective provision of services in accordance with the provisions of the Act. That central concern is repeated in section 1 of the current National Health Service Act of 1977. Section 3 of the 1946 Act then provided that it was the duty of the Minister to provide, to the extent he considered necessary to meet all reasonable requirements, accommodation and services of the following description:-

(a) hospital accommodation;

(b) medical nursing and other services required at or for the purpose of hospitals;

(c) the services of specialists.

55. The reorganisation and unification of the National Health Service, which occurred in 1974 by the creation of regional health authorities as well as area health authorities, took place at a time when personal social services had already been reorganised pursuant to the Local Authority Services Act 1970 which gathered various local health committees into a single committee. But it was recognised that a family or a single individual might at one and the same time need many types of health and social care and that those needs should be met in a co-ordinated way. The two parallel structures of the NHS and local authorities had therefore to work together in both the planning and the operation of health and social services. Opportunity was taken at the time of re-organisation to expand section 3 of the 1946 NHS Act into a form which subsequently became consolidated into the 1977 Act in terms which Brooke LJ has set out in his judgment. In the introduction to the White Paper which preceded the 1974 re-organisation of the NHS (Cmnd 5055) Sir Keith Joseph, the then Secretary of State, emphasised the need for a comprehensive service and that local and health authorities should work together in partnership for the health and social care of the population.
56. Of course, one cannot construe the 1977 Act by reference to a Minister's preface to a White Paper but it is gratifying that the construction I think is right is at least not inconsistent with the likely intention of Parliament.