Enfield Borough Council, R (on the application of) v Secretary of State for Health & Ors

Permission for judicial review may exceptionally be set aside where, after hearing the defendant, the court would not have granted permission. The jurisdiction is residual, sparingly exercised and appropriate only in an obvious case.

Statutory consultation is required only for proposals which the public body is actively considering for implementation. A body may reject a clinically or financially non-viable option without consulting upon it. A claimant for judicial review must act promptly, as well as within the three-month maximum period. Delay may justify refusal of relief where it causes substantial and irremediable prejudice.

Enfield challenged decisions concerning the reconfiguration of NHS services at Chase Farm, Barnet and North Middlesex Hospitals. Permission was granted on paper before the defendants had filed acknowledgments of service. The Secretary of State and the primary care trusts applied to set that order aside.

The proposed consultation concerned two viable options. A further option preserving existing services was excluded because it was considered clinically unsafe and financially unviable. Enfield argued that the exclusion unlawfully avoided consultation on closure of existing services. It also challenged the Secretary of State’s confirmation of the proposal and had delayed proceedings until the final day of the applicable three-month period.

1. Permission set aside. The court had a residual inherent jurisdiction to set aside permission for judicial review, notwithstanding CPR r.54.13. The jurisdiction should be exercised sparingly and only where, after considering the full material, the court would not have granted permission.
2. Consultation. The statutory duty under National Health Service Act 2006, s.242(2), applied to proposals for changes which the NHS body was actively considering for implementation. The principles in R v Brent LBC, ex parte Gunning [1985] 84 LGR 168, as approved in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, governed the consultation requirement. An NHS body was not required to consult on an option rejected as clinically unsafe or financially non-viable, consistently with R(F) v Healthy Futures [2007] EWHC 1611 (Admin) and R v Worcester Health Authority, ex parte Kidderminster and District Community Health Council [1999] EWCA Civ 1525.
3. Secretary of State’s decision. The challenge to the Secretary of State’s decision was fundamentally misconceived. The Secretary of State was entitled to assess whether the proposal was in the interests of the local health service and whether the consultation was adequate. The legal validity of the consultation process was for the court, not for the Secretary of State. In any event, quashing his decision would have achieved nothing because his powers under regulation 4 of the Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002 did not extend to requiring a full public consultation on the rejected option.
4. Delay. Judicial review claims must be brought promptly. The statutory reference to the Secretary of State was not, on these facts, an alternative remedy which justified postponing a legality challenge. Enfield’s delay after September 2008 was unjustified and caused substantial prejudice, including implementation expenditure and financial commitments. The arguable challenge to the primary care trusts’ decisions was therefore refused on discretionary grounds.
5. The order granting permission was set aside and permission to bring judicial review proceedings against all defendants was refused.