McVey & Ors, R (on the application of) v Secretary of State for Health

A public authority’s delay in making a decision may justify an order requiring a decision. Once the decision has been made, delay alone ordinarily provides no remedy; the claimant must challenge the lawfulness of the decision itself.

Judicial review remains supervisory. A discretionary decision is unlawful only when it falls outside the range of reasonable responses or otherwise exceeds lawful limits. An expert recommendation must receive appropriate weight, but the decision-maker need not accept it where the governing instrument confers an independent discretion.

Where a trust deed requires trustees to consider beneficiaries’ best interests but does not similarly restrict the Secretary of State’s consent power, the Secretary of State may consider wider matters, including fairness, individual needs and the proper use of public money.

The claimants were relatives or associates of people affected by variant Creutzfeldt-Jakob disease. They challenged the Secretary of State’s rejection of proposals by the trustees of a government-funded compensation trust for a radical revision of its scheme.

The claim sought to quash the rejection and require a lawful, reasoned reconsideration. The issues were whether the Secretary of State had delayed unlawfully, failed to give reasons, acted irrationally by not deferring to the trustees’ expertise, or exercised his consent power inconsistently with the scheme’s purposes. The court also had to resolve, on written evidence without cross-examination, whether the rejection decision was made in March 2008 or June 2009.

Separate claims advanced by two interested parties concerning long-surviving patients were left for later consideration because they differed materially from the pleaded claim and the Secretary of State had received no prior notice of them.

1. The claim was dismissed. Where material facts are disputed in judicial review proceedings and the claimant has not sought cross-examination, the court ordinarily accepts the respondent’s evidence. The exception arises where contemporaneous documents show that the evidence cannot be correct. The documents did not reach that standard, so the court found that the radical proposals were rejected in March 2008.

2. The delay challenge failed. Once the Secretary of State had decided the proposals, any remedy directed merely to compelling a decision became unnecessary. The challenge then had to address the lawfulness of the completed decision. In any event, the interval between the final proposals, counsel’s advice and the March 2008 decision was not excessive. The result would have been the same had the decision been made in June 2009.

3. The Secretary of State gave adequate reasons. They included the small number of new cases, the risk of demands to reopen completed claims, possible unfairness between beneficiaries, loss of sensitivity to individual needs, the burdens of transferring discretionary decisions to families, and the availability of more modest revisions. The evidence and surrounding exchanges established that those reasons informed the rejection.

4. Judicial review was supervisory and was not an appeal on the merits. The trustees’ expertise required suitable weight, but neither clause 34.1 of the Trust Deed nor public law required the Secretary of State to accept their recommendation. He exercised an independent judgment after considering the trustees’ submissions and obtaining specialist legal advice. His conclusion remained within the lawful range of reasonable responses.

5. Clause 34.1 required the trustees to consider whether their powers enabled them to act in beneficiaries’ best interests. It did not confine the Secretary of State’s consent discretion to that criterion. He could take account of wider responsibilities, including the proper use of public money and fairness between beneficiaries. Even on the contrary assumption, the stated reasons and adoption of moderate reforms were compatible with beneficiaries’ interests and fell well within his discretionary judgment.

6. The court provisionally considered that an available common-law damages claim might constitute an unexhausted alternative remedy, but that view formed no part of the decision. It provisionally rejected the Secretary of State’s limitation objection because the rejection was communicated only after proceedings began.

This was a first-instance judicial review claim. Plender J had granted permission on an earlier formulation of the claim. At the hearing, Silber J permitted pursuit of the additional grounds which had not been covered by that permission.