Localism Act power does not enable a local authority to provide health services

In a recent judgment, The Hon. Mr Justice Mostyn described a claim that a local authority could provide tracheostomy care for a child pursuant to the general power of competence in s. 1 of the Localism Act 2011 as ‘misconceived’. Christine Cooper summarises the judgment.

This judgment (R (JP) v NHS Croydon Clinical Commissioning Group & the London Borough of Croydon [2020] EWHC 1470 (Admin)) will be welcomed by local authorities; not only because it reinforces the clear boundary between social care and health care but also because it will make it more difficult for claimants to argue that the s. 1 power can be used to do something where Parliament has expressly vested the power to do that thing in a different public body.

Background to the decision

There can be no doubt that the general power of competence was intended to expand local authority powers to enable them to be creative and entrepreneurial. This much is clear from s. 1(2) which says that the general power of competence applies to things that an individual may do even though they are in nature, extent or otherwise unlike anything the authority may do or unlike anything that other public bodies may do.

Interestingly, most of the case law to date has concerned claimants  arguing that the general power of competence can be used to do things that are very similar to things that the local authority already has a power to do. The courts have carefully examined the boundaries of the power as defined in s. 2.

In R (MK) v Barking and Dagenham LBC [2013] EWHC 3486 (Admin) a claimant who needed accommodation and subsistence was barred from receiving support under s. 17 of the Children Act 1989 because of her immigration status. She argued that there was a power to provide that support under s. 1 of the Localism Act. The court held that the power was not intended by Parliament as a means of overriding a clear statutory scheme prohibiting the provision of benefits to those unlawfully in the UK.

In contrast, the court held in R (GS) v Camden LBC [2016] EWHC 1762 (Admin) that although accommodation could not be provided under the Care Act 2014 unless there was a need for care and support, it could nonetheless be provided under s. 1 of the Localism Act. The judge was not referred to any pre or post commencement limitation that would prohibit such provision.

It was argued in R(AR) v Hammersmith and Fulham London Borough [2018] EWHC 3453 (Admin) that GS was wrongly decided and that s. 185 of the Housing Act 1985 imposes a prohibition on the provision of accommodation under any enactment and not merely under the Housing Act. The court held that the ‘thing’ which the claimant was asking the local authority to do was to secure accommodation for him. Section 185 of the Housing Act  prohibited it from doing so and s. 2 of the Localism Act prevents s. 1 being used to do that which is prohibited by another statute.

In JP’s case, the CCG had reduced the number of nights for which it provided a carer trained to manage his tracheostomy. It was argued that the local authority had wrongly adopted the position that it could not provide a suitably trained carer on the nights when there was no CCG provision. It was argued that s. 1 was a power to do anything an individual could do. As an individual could pay for private healthcare so could the local authority. Mostyn, J agreed with the local authority that the National Health Service Act 2006 and the related regulations expressly delineated the boundaries between the NHS and local authorities holding (at par 48):

In this context the 2011 Act must be construed purposively and having regard to the supposed intention of its framers. It is inconceivable that its framers could have dreamed that section 1 could be used to usurp decisions reposed in the NHS and its bodies. I cannot accept that the 2011 Act should be construed as driving a coach and horses through very carefully delineated frontiers of competence and function between the NHS on the one hand and local authorities on the other.

Christine Cooper is a barrister at Field Court Chambers.