AJ & Anor v Calderdale Primary Care Trust

The claimant sought a declaration and quashing of a decision communicated in a letter of 27 March 2012 which excluded service users and their familial carers from evaluation panels in a procurement exercise. The central legal issue was the defendant's stated view that such inclusion would of itself breach regulation 4 of the Public Contracts Regulations 2006 (treating economic operators equally, non-discriminatorily and transparently).

The court held that the decision letter proceeded on an erroneous understanding of the law: neither regulation 4 nor the authorities require that the mere presence of service users or carers on evaluation panels constitutes a breach. Because the decision-maker had proceeded on that legal error, the decision could not be re-characterised by the defendant and was quashed. The court did not decide the remaining grounds (including legitimate expectation, the public sector equality duty and alleged fettering) because quashing the decision made such consideration unnecessary.

This is a first-instance judicial review challenge to a local authority's decision to exclude service users and their familial carers from tender-evaluation panels in relation to a supported living procurement exercise. The claimant is profoundly disabled and lives in a property whose support contract was subject to a two-stage procurement (framework followed by secondary, single-property let). Historically the authority had involved service users and carers in evaluation panels. Following consultation the authority issued a decision letter rescinding that practice and relying on legal advice said to show a tension between local policy on choice and control and procurement law, specifically regulation 4 of the Public Contracts Regulations 2006.

The claimant sought a declaration and quashing order. The court framed the primary issue as whether the decision was founded on a mistake of law, namely the assertion that the mere inclusion of users or carers on an evaluation panel would breach regulation 4. The judge examined the decision letter and contemporaneous consultation correspondence and concluded that, read as a whole, the authority had proceeded on the incorrect legal premise that inclusion without more would breach the procurement regulations or at least expose the authority to a challenge inevitable on that basis.

The court analysed Regulation 4(3) PCR 2006 and observed there is nothing in the regulation, European jurisprudence or domestic case law to support the proposition that mere inclusion of users or carers on an evaluation panel automatically breaches procurement law. The judge rejected the defendant's attempt to re-characterise the decision retrospectively as a permissible evaluative judgement about the risk of bias or the need for professional panels; because the original decision had been tainted by error of law, substitution or re-categorisation was impermissible in the circumstances and the decision was quashed. The court therefore did not decide the other grounds in detail (failure to have regard to policy, legitimate expectation, public sector equality duty, or fettering), though it recorded that legitimate expectation would in any event likely have failed absent the error of law. The judgment also explains the procedure to be followed if a fresh decision is taken, including appropriate fresh reasons and consideration of ameliorative steps before systemic exclusion.

The decision communicated on 27 March 2012 is quashed. The court found that the decision-maker proceeded on an error of law in treating the mere inclusion of service users or familial carers on tender-evaluation panels as amounting to, or inevitably risking, a breach of regulation 4 of the Public Contracts Regulations 2006; because that error materially affected the decision, re-categorisation by the authority was not permitted and the decision must be set aside. Other grounds were not determined because quashing was dispositive.