Funding for respite service

February 23rd, 2018

In R (Juttla) v Hertfordshire Valleys Clinical Commissioning Group (2018) EWHC 267 (Admin) Mostyn J set aside the resolution made by the Defendant on 16 November 2017 to remove funding of £600,000 annually from Nascot Lawn in Watford (a respite service for children with complex medical needs) with effect from 16 May 2018. The consequence is that the Defendant must now comply with its legal duty formally to consult Hertfordshire County Council (HCC) about its proposal to withdraw that funding.

The Defendant maintained that it was not funding a “health service” within the terms of Sections 3 and 3A of the National Health Service Act 2006. The Judge ruled however that the services provided at Nascot Lawn are health services.  That being so, Regulation 23 of the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 (SI 2013 No. 218), falls within Part 4 of the Statutory Instrument which is entitled “Health Scrutiny by Local Authorities”. That Part establishes a scheme whereby local authorities will be fully and formally consulted on any major health service changes in their area, will have the opportunity to scrutinise them, and in the absence of agreement will have the opportunity of seeking redress from the Secretary of State.

Regulation 23(9) provides:-

“(9) Subject to paragraph (10), the authority may report to the Secretary of State in writing where –

(a) the authority is not satisfied that consultation on any proposal referred to in paragraph (1) has been adequate in relation to content or time allowed;

(b) in a case where paragraph (2) applies, the authority is not satisfied that the reasons given by R are adequate; or

(c) the authority considers that the proposal would not be in the interests of the health service in its area.”

Mostyn J observed:-

“13.   If a report is made under paragraph 9 to the Secretary of State then by virtue of regulation 26 he can make a decision on the issue which may either require further consultation or a determination of the issue in a particular way. Therefore, in this case were the question of the withdrawal of the funding of Nascot Lawn to be referred to the Secretary of State then he could, on the merits, direct that the funding be continued.”

Mostyn J rejected all the other grounds of challenge. He said:-

“24.  … The scope of the duty to involve the public in this case is prescribed by the National Health Service Act 2006 in a number of separate places. There is no general common law duty to consult. The common law may supply a requirement to consult where Parliament has not spoken and where the facts cry out for public involvement. But I do not need to consider the ramifications of that doctrine as I am certain that it would be constitutionally aberrant for a court to start using the common law to augment, or worse still, alter, the scope of an obligation to involve the public defined by statute.

“28.    … by three distinct routes the 2006 Act explicitly requires public involvement in this case as follows:

  1. Under the defendant’s constitution: the right to public involvement in the planning, development and consideration of proposals for changes.
  2. Under the NHS constitution: the right to be involved in the development and consideration of proposals for changes.
  3. Under section 14Z2(2): the right to have arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information or in other ways).Mostyn J said with respect to the PSED and Section 149(1) of the Equality Act 2010:-
  4. In my judgment these rights compendiously define the scope of the duty to “consult”. There is no room for the common law to augment, let alone alter, these rights.”

“36.    … This is a key provision in the corpus of anti-discrimination law. Breach of it is a serious matter. Allegations of breach of it should not be lightly made.

  1. The obligation on every public authority is to “have due regard to the need to” eliminate or advance or foster the goals that then follow. The noun “need” supplies an imperative quality. The noun “regard” means no more than to have in mind. The adjective “due” means “such as is necessary or requisite; of the proper quality or extent; adequate, sufficient”, as in “driving without due care and attention”. Therefore, the public authority must have sufficiently in mind, when exercising its functions, the necessity of achieving these goals. This has been explained by Lord Neuberger in the Supreme Court in Hotak v London Borough of Southwark [2015] UKSC 30, [2015] 2 WLR 1341 at [74] – [75]: …
  2. Therefore, any challenge can only be to process and not to outcome. The 2010 Act does not provide for a statutory right of appeal against any alleged breach, but left any challenge to judicial review proceedings. Therefore, the classic judicial review standards of irrationality or perversity must be satisfied if a challenge is to succeed. …”

“41.    The EIA was given proper and conscientious consideration … The criticisms made of the process have descended into the types of micro-management and detailed forensic analysis which is not the work of a court undertaking a judicial review of performance of the PSED. What has to be shown is, within the decision-making process, either irrationality or perversity.”

 

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