London Borough of Lewisham & Anor, R (on the application of) v Secretary of State for Health & Ors

The statutory powers of a trust special administrator and the Secretary of State under Chapter 5A of the National Health Service Act 2006 are confined to action concerning the NHS trust to which the administrator was appointed. They do not authorise recommendations or decisions reducing services at a hospital belonging to another trust. The expedited regime cannot be used as a substitute for the ordinary reconfiguration process. Where the Secretary of State seeks to rely retrospectively on section 8 powers, he must show that all applicable consultation requirements were satisfied and that the decision would inevitably have been the same. Support from GP commissioners requires appreciable support from the commissioners whose patients are most affected; it is not enough to rely on wider regional support.

The claims concerned recommendations made by a trust special administrator appointed to South London Healthcare NHS Trust and a decision of the Secretary of State accepting those recommendations with modifications. The proposals included substantial reductions in services at University Hospital Lewisham, which belonged to Lewisham Healthcare NHS Trust and was not the trust subject to the administrator.

The claimants sought judicial review on vires, legitimate expectation, consultation and reconfiguration grounds. The Secretary of State also argued that the decision could be upheld under section 8 of the National Health Service Act 2006. The central issues were whether Chapter 5A authorised action affecting another NHS trust and, if not, whether the decision could nevertheless be sustained through the alternative statutory route.

1. Vires. The words “the Trust” in sections 65F(1), 65I(1) and 65K(1) meant the single NHS trust over which the trust special administrator had been appointed, namely South London Healthcare NHS Trust. The words “in relation to the Trust” were limiting words and did not extend to hospitals belonging to another trust. The statutory consultation structure, the contrast with the phrase “in the interests of the Health Service”, and the specific powers to dissolve and transfer property supported that construction.
2. The administrator therefore lacked power to recommend reductions in services at University Hospital Lewisham, and the Secretary of State lacked power under section 65K(1) to decide on those reductions. The recommendations and the decision were ultra vires to that extent.
3. Reconfiguration tests. The four requirements were designed for local service reconfigurations. Under the statutory guidance, the administrator had to have regard to them. In any event, the requirement for support from GP commissioners was not met. The relevant commissioners were those serving the area where most patients would be affected, namely Lewisham GP commissioners. Their opposition could not be displaced by broader regional support. The other requirements concerning public engagement, clinical evidence and patient choice were satisfied or properly addressed.
4. Section 8 alternative. The Secretary of State could in principle rely on section 8 even though he had not expressly relied on it when making the decision, provided that the claimants were not prejudiced and that all consultation and other requirements applicable to that route had been satisfied. Those conditions were not met. The ordinary consultation and scrutiny procedures had not been followed, and the Secretary of State could not show that the decision would inevitably have been the same. Probability that the outcome would have been unchanged was insufficient.
5. The legitimate-expectation and further-consultation grounds were rejected or permission was refused. The Secretary of State’s statement that the regime was not a “back-door approach to reconfiguration” was not a clear, unqualified promise and could not fetter statutory powers. The Secretary of State’s decision, and the administrator’s recommendations, were quashed insofar as they related to University Hospital Lewisham.

Not stated in the judgment.