Flasz & Ors v Havering Primary Care Trust

The statutory power to regulate arrangements for primary medical services included power to provide for termination by a commissioning body on six months’ notice. A provision requiring regulations to give contractors a right to withdraw did not prevent regulations from conferring a corresponding right on primary care trusts.

A legitimate expectation requires a clear and unequivocal representation. General statements that an arrangement would be “permanent” meant permanent as a contractual alternative to another NHS scheme, not that individual contracts could never be changed. In any event, a public body cannot rely on a representation to avoid complying with statutory duties.

The claimants were general practitioners operating under personal medical services agreements with Havering and Greenwich Primary Care Trusts. The Secretary of State made the Primary Medical Services (Miscellaneous Amendments) Regulations 2010, which amended the termination provisions in the National Health Service (Personal Medical Services Agreements) Regulations 2004 to permit termination by either party on six months’ notice.

The claimants challenged the Secretary of State’s vires and the consequential contractual variations. The Havering claimants also relied on alleged representations that their agreements would be permanent. The court considered permission for judicial review and, if granted, substantive relief.

1. Vires. Section 94(1) of the National Health Service Act 2006 conferred a broad power to make regulations about services provided under section 92 arrangements. Section 94(3)(f) expressly contemplated provision concerning variation and termination. Section 94(2) required regulations to give participants other than health authority bodies a right to withdraw, but did not prohibit additional provision allowing primary care trusts to terminate. The challenge to the 2010 Regulations therefore failed.
2. Explanatory note. An explanatory note may identify the legislative background and mischief, but it cannot determine the legal meaning or validity of the operative regulation. Whether the 2010 amendment reflected the proper interpretation of the earlier regulations was irrelevant to its vires.
3. Legitimate expectation against the Secretary of State. Statements that personal medical services would be “permanent” referred to the permanence of PMS as a local contractual alternative, rather than permanence of each individual agreement. They were not clear and unequivocal representations that individual contracts could never be terminated or amended.
4. Legitimate expectation against Havering. The alleged assurances were insufficiently precise. Further, paragraph 98 of Schedule 5 to the 2004 Regulations contemplated amendment of agreements when the legislative regime changed. Section 92(2) of the 2006 Act and regulation 18 of the 2004 Regulations required agreements to conform to the minimum statutory terms. Havering was therefore obliged to vary agreements that lacked the amended termination term, even if it had previously made a contrary representation.
5. The court did not determine the abandoned Wednesbury, delay, or regulation 19 issues. The claimants had not shown a reasonably arguable case. Permission to apply for judicial review was refused on the merits, including the additional legitimate-expectation ground.

First-instance judicial review proceedings. The two claims were heard together because they raised common issues.