Trust Special Administrator Appointed To South London Healthcare NHS Trust & Anor v London Borough of Lewisham & Anor

A trust special administrator may recommend, and the Secretary of State may decide upon, only action in relation to the NHS trust to which the administrator was appointed. In Chapter 5A of the National Health Service Act 2006, that phrase bears its ordinary and narrow meaning. It covers action affecting the appointed trust, not service changes at a separate trust, even if those changes are said to be necessary or consequential.

The separate legal identity of NHS trusts, and the expedited regime's limited consultation safeguards, reinforce that construction. Recommendations and decisions extending to another trust are ultra vires.

A trust special administrator was appointed to South London Healthcare NHS Trust under Chapter 5A of the National Health Service Act 2006. His report recommended measures concerning the services of Lewisham Healthcare NHS Trust at Lewisham University Hospital. The Secretary of State accepted those recommendations with modifications.

Silber J quashed the report and decision insofar as they concerned those services: [2013] EWHC 2329 (Admin). The administrator and Secretary of State appealed. The central issue was whether the statutory power to recommend or decide action “in relation to the trust” extended to action concerning a separate NHS trust.

1. The appeal was dismissed. The Court upheld the quashing orders insofar as the report and the Secretary of State's decision concerned services provided by Lewisham Healthcare NHS Trust.

2. Each NHS trust is a separate legal entity under the National Health Service Act 2006. Accordingly, “the trust” in sections 65F(1), 65I(1) and 65K(1) means the particular trust to which the administrator has been appointed. Although the words “in relation to” may vary with context, their ordinary meaning here is action which affects, concerns or impacts on that trust. They do not include action concerning another trust merely because it is said to be necessary for, or consequential upon, action concerning the appointed trust.

3. The administrator's two functions were not wholly distinct. The fact that the administrator was appointed to exercise the functions of the chairman and directors of a particular trust was material to the scope of the reporting function under section 65F(1).

4. The statutory context confirmed that conclusion. Chapter 5A is an expedited exception to the ordinary service-reconfiguration regime, which provides for extensive public involvement and consultation. It contains no requirement for an administrator to consult another trust whose services might be affected. Parliament was therefore unlikely to have authorised an administrator to recommend changes, such as closure of services, at another trust without such a safeguard. The Secretary of State's general responsibility for the health service and the exceptional purpose of Chapter 5A did not supply a general power to recommend action elsewhere in the health service.

5. The recommendations concerning Lewisham Healthcare NHS Trust were therefore outside the statutory power, and the Secretary of State's acceptance of them was ultra vires. It was unnecessary to consider the appellants' second ground of appeal.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the quashing orders: [2013] EWCA Civ 1409.

• High Court, Administrative Court: Silber J quashed the special administrator's report and the Secretary of State's decision insofar as they concerned services provided by Lewisham Healthcare NHS Trust: [2013] EWHC 2329 (Admin).