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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

09 JAN 2014

R (The Enfield London Borough Council) v Barnet Clinical Commissioning Group and Others [2013] EWHC 3496 (Admin); (2013) PLLR 130

Healthcare - Hospitals - Closure - Consult - Legitimate expectation

The Defendants had properly identified that alternative hospitals had the capacity to take patients when the Chase Farm Accident and Emergency Department was closed. There was no legitimate expectation that that department would remain open.

12 November 2013

Administrative Court

Bean J

(1)        By this case, the Claimant, Enfield Council, challenged the decisions to close the accident and emergency department (‘the department') at Chase Farm Hospital from 9 December 2013. The decisions had been made by Barnet, Enfield and Haringey Clinical Commissioning Groups (‘CCGs'). The dispute as to the closure of the department had been going on for 6 years. The Secretary of State had referred the issue to the Independent Reconfiguration Panel (‘the IRP') in 2007, and recommendations had been issued.

(2)        The Council brought their challenge on the basis of five grounds:

a.         The CCGs did not have the power to close Chase Farm accident and emergency when there had not been compliance with a precondition set by the Secretary of State.

b.         The CCGs had created an expectation regarding the level of services and it would be an abuse of power for the CCGs to depart from this.

c.          There had been a failure to consult the Claimant before acting.

(3)        It was further alleged that the CCGs misdirected themselves and/or took into account irrelevant considerations, as the decision was made without consideration as to whether a precondition imposed by the Secretary of State following recommendations by the IRP had been met. The Claimant argued that this precondition was a direction by the Secretary of State that there would not be closure of the department without a specific level of improvements in relation to alternative hospitals.

(4)        HELD: The Court found that although this was a challenge to a decision made in September 2013, in effect, it was a challenge to decisions made earlier in 2007 and 2008. The Court held that that what had been required by the recommendations of the IRP in 2007 was nothing more than consultation.

(5)        The recommendations published in 2007 required that proper alternative arrangements be made for the types of patients attending the department if it were to be closed. The evidence submitted showed that the CCGs were satisfied that there was sufficient capacity at Barnet and North Middlesex hospitals, and that would remain sufficient after the department closed.

(6)        As such, the recommendations arising from the 2007 IRP had been satisfied. The Court held that there was no additional precondition upon the Claimant, and the first ground of challenge thus failed.

(7)        The Court held that a claim as to legitimate expectation could not succeed because there had been no clear, unambiguous statement devoid of relevant qualification. There had been no promise by the Defendants that the department would remain open until improvements argued for Enfield primary care had been completed; nor was there any promise of further consultation.

(8)        The Court held that there was no common law obligation to reconsult nor basis for an argument that there had been substantial variation in the provision of care, so as to introduce additional requirements prior to a decision being made.

(9)        The claim as to the need to have regard to material considerations failed as it was based upon there being a finding that a precondition to closure had not been met.

(10)     Court held that there was no arguable basis for the judicial review claim to succeed, and permission was refused and the claim dismissed.

Claim dismissed

Key paragraphs

[25] - Challenge earlier decision. 

[29] - Evidence supporting decision.

[30] - Ground 1 failed.

[32] - Legitimate expectation.

[33]-[35] - No duty to reconsult.

[38]-[39] - Conclusion.

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