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28 AUG 2013

R (on the application of London Borough of Lewisham and Another) v Secretary of State for Health and Others [2013] EWHC 2329 (Admin); (2013) PLLR 096

Healthcare - Reconfiguration - Consultation - Irrationality

The Trust Special Administrator had no power to reconfigure the services of LH, a hospital outside of his trust area. 

31 July 2013

Administrative Court

Silber J

(1)        These applications for judicial review concerned a recommendation to reduce the services at University Hospital Lewisham (‘LH') and a subsequent decision to reduce the services offered at that hospital, albeit in a different way. The only part of the recommendations and decision challenged was that which sought to reduce the services offered by LH.

(2)        The Claimants contended that:

(a)        the decision was ultra vires because the powers held by the Trust Special Administrator (‘TSA') and the Secretary of State were confined to the particular NHS Trust to which the TSA was appointed. The powers being set out in Chapter 5A of the National Health Services 2006 Act (‘the 2006 Act'); and 

(b)        In the alternative, the Secretary of State erred in stating that the tests for reconfiguration were met in whole or in part. 

(c)        The Secretary of State had acted in breach of its legitimate expectation that the TSA system would not be used to ‘impose a back-door reconfiguration on the NHS I South-East London'; and

(d)        The decision was so different to the original recommendations that no proper consultation has taken place.

(3)        The Defendants' response was that:

(a)        On the true construction of the Secretary of State's powers in Chapter 5A of the 2006 Act, they were not confined to the particular NHS Trust to which the TSA was appointed;

(b)        Alternatively, the Secretary of State had the power to make the decision, as it could be justified under the provisions under Chapter 5A of the 2006 Act;

(c)        The reconfiguration tests were not legal requirements and were not designed for decisions under Chapter 5A of the 2006 Act. In any event, it was argued that the reconfiguration tests were met;

(d)        The decision was not a ‘back-door reconfiguration' and, in any event, there was no legitimate expectation that the decision would not amount to a ‘back-door reconfiguration'; and

(e)        The decision was made in compliance with all relevant duties to consult.

(4)        HELD: The Court held that the TSA was only appointed in relation to the one trust and there was nothing in the wording to suggest that any other trusts were referred to. Crucially, LH was not in the trust over which the TSA had been appointed. The TSA had no obligation to consider the interests of the Health Service, because the draftsman had not included such a provision in section 65 of the 2006 Act.

(5)        Following the narrow interpretation of the powers of the TSA and Secretary of State, the Court held that neither the recommendations nor decision fell within the ambit of their powers.

(6)        The recommendations of the TSA therefore fell to be quashed.

(7)        The Court held that the Secretary of State's statement relied upon by the Claimants could not give rise to a legitimate expectation, because there was no statement that was ‘clear, unambiguous and devoid of relevant qualification' (R v Inland Revenue Commissions, ex parte MFK Underwriting Agencies Limited [1991] WLR 1545 at 1569). The statement only indicted that the Secretary of State would act in accordance with the established rules.

(8)        The Court found that in order for the Claimant to succeed on the basis that it had followed an Alternative Decision Route provided for in section 8 of the 2006 Act, it was had to fulfil certain requirements. It failed to so as it did not obtain support for the proposals from GP commissioners. The failure to comply with this requirement, and the ignoring of the views of this group rendered the decision irrational.

(9)        The Court further held that there was a lack of evidence to show that even the most basic requirements for an ordinary consultation had been satisfied.

(10)     The Court found that the Secretary of State could not show that the conclusion reached in the decision would have been adopted had the Alternative Decision Route provided for in section 8 of the 2006 Act been properly followed.

(11)     The Secretary of State's decision was quashed in so far as it related to LH and the recommendations of TSA in relation to LH.

Claim succeeded

Key paragraphs

[47] - Issues.

[77] - Meaning of trust.

[78] - LH not in TSA's trust.

[82] - Not consider interests of health service.

[94] - Outside powers.

[94] - TSA recommendations quashed.

[100]-[105] - No legitimate expectation.

[137] - Failure to consider relevant views.

[155] - Engagement.

[164] - Clarity clinical evidence.

[169]­-[170] - Issue C Conclusion.

[172] - Issue D.

[182] - Conditions not satisfied.

[198] - Basic consultation requirements.

[208] - Conclusion section 8.

[209]-[2011] - Conclusion.

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