Primary Health Investment Properties Ltd & Ors v Secretary of State for Health & Ors

Article 6 is not engaged where the statutory scheme, viewed as a whole, gives a public authority a broad discretion whether to grant financial assistance. A dispute about calculating one element of that assistance does not become a determination of a civil right when the underlying entitlement depends on the discretionary grant.

Where Article 6 is engaged, a limited lack of institutional independence may be cured by procedural safeguards and judicial review if the decision involves expertise and evaluation. Apparent bias is different. A fair-minded and informed observer may identify a real possibility of bias where an adviser reviewing a disputed valuation belongs to the same organisation as the expert who acted for one party. Professional assurances do not necessarily cure that appearance.

The claimants challenged the NHS dispute-resolution procedure for determining the current market rent of medical premises. The procedure was operated by the Family Health Services Appeal Unit on behalf of the Secretary of State and allowed consultation with the Chief Executive’s Office of the Valuation Office Agency.

The District Valuer had previously acted for the interested Primary Care Trust in negotiating the rent dispute. The claimants argued that the procedure breached Article 6 of the Convention and was tainted by apparent bias because the Chief Executive’s Office, within the same agency, would advise the Appeal Unit. They also argued that the procedure was unfair because the Valuation Office Agency could obtain the District Valuer’s case file.

1. Article 6. The claimants’ entitlement had to be assessed by examining the whole reimbursement process. Under paragraph 31 of the Premises Costs Directions, the Primary Care Trust retained a broad discretion whether to grant financial assistance, having regard to value for money and its budgetary targets. The NHS contract did not create contractual rights by virtue of National Health Service Act 2006, section 9(5). The rent calculation was therefore only a stage in a discretionary scheme and did not determine a civil right. Article 6 was not engaged.

2. Waiver. The doctors had not unequivocally waived any Convention rights by choosing the statutory procedure. They were entitled to expect that the procedure would be operated compatibly with the Convention if that was possible.

3. Composite compliance. If Article 6 had applied, the NHS Litigation Authority’s limited lack of institutional independence could have been cured by the procedural safeguards in paragraph 95 of Schedule 5 to the PMS Regulations and by judicial review. The decision involved evaluation of written material with specialist assistance, rather than an unreviewable determination of primary fact or credibility. Judicial review supplied the jurisdiction required by the nature of the decision.

4. Apparent bias. The common-law test was whether the fair-minded and informed observer, having considered all the circumstances, would conclude that there was a real possibility of bias. The District Valuer had acted for the Primary Care Trust, had represented its position in the dispute, and remained within the Valuation Office Agency. The Chief Executive’s Office of that agency was then to advise the Appeal Unit. The connection was too close for justice to be seen to be done.

5. The practice of making the District Valuer’s case file available to the reviewing adviser was also inconsistent with elementary fairness, particularly where it might contain confidential or without-prejudice material not disclosed to the other party. The claim therefore succeeded on apparent bias alone. The court was to hear the parties on the form of order if agreement could not be reached.