The Enfield London Borough Council, R (on the application of) v Barnet Clinical Commissioning Group & Ors

Where an NHS service reconfiguration has already been approved following consultation, later implementation of that decision does not ordinarily constitute a fresh proposal for substantial variation requiring renewed consultation. A condition attached to approval must be construed from the relevant decision and recommendation documents; it is not enlarged by general references to intended service improvements or alleged trade-offs.

A legitimate expectation, whether substantive or procedural, requires a promise that is clear, unambiguous and devoid of relevant qualification. Without proof of such a promise, a public body is not required to provide the promised outcome or consult before departing from it.

The claimant local authority challenged decisions by three clinical commissioning groups and an NHS trust to close the Accident and Emergency department at Chase Farm Hospital as part of an earlier reconfiguration of services across three hospitals.

The challenge alleged that the Secretary of State’s approval imposed a condition that primary care improvements in Enfield had to be implemented before closure. Alternatively, the claimant relied on legitimate expectation, statutory consultation under reg 23 of the Local Authority (Public Health, Health and Wellbeing, and Health Scrutiny) Regulations 2013, a common-law duty to reconsult, and failure to consider relevant matters.

1. Precondition. The Secretary of State’s approval, read with the relevant recommendations and the 2007 Option 1 decision, required sufficient alternative A&E capacity at Barnet and North Middlesex and community and primary care services capable of accommodating changed patient flows. It did not impose the wider condition contended for, namely completion of specified or equivalent primary care improvements before closure. Those two actual preconditions had been satisfied.
2. Legitimate expectation. The claimant could not establish either a substantive or procedural legitimate expectation. Applying the approach in Paponette v Attorney General of Trinidad and Tobago, [2010] UKPC 32, the alleged promise had to be clear, unambiguous and devoid of relevant qualification. No promise had been made that closure would await completion of the claimant’s preferred improvements, or that further consultation would be offered instead.
3. Consultation and reconsultation. The 2013 decision implemented earlier decisions, particularly those made in 2007 after widespread consultation. It was therefore not a new proposal for substantial development or substantial variation engaging reg 23 of the 2013 Regulations. The common-law reconsultation ground failed for the same reason.
4. Relevant considerations. The complaint that the defendants had failed to consider whether the alleged precondition had been met added nothing once the alleged precondition was rejected.
5. The claim against the Secretary of State also failed. The court refused permission and dismissed the claim. It was unnecessary to determine the separate question whether relief should have been refused in the exercise of discretion.

First-instance judicial review claim. The judgment records an earlier challenge concerning the 2007 and 2008 decisions, in which permission was set aside: [2009] EWHC 743 (Admin). That earlier decision was not the decision under appeal in the present case.