Flatley, R (On the Application Of) v Hywel Dda University Health Board

At the permission stage of a judicial review, an alleged factual error is arguable only where the decision-maker may have failed to appreciate a fact fundamental to the decision. A public authority’s equality duty arises where a relevant protected characteristic may realistically be engaged by the proposed decision. A claimant alleging breach must identify the characteristic and explain how it may be engaged. Where the material shows that the decision-maker understood the consultation body’s position, an alleged misunderstanding is unarguable. Consultation issues may nevertheless warrant permission where they concern the statutory relationship between health bodies and ministers and raise issues of wider public importance.

The claimant challenged the Welsh Ministers’ decision to endorse an Emergency Nurse Practitioner-led and general practitioner-supported urgent healthcare model at Prince Philip Hospital. The decision followed a referral by the Hywel Dda Community Health Council under regulation 27 of the Community Health Councils (Constitution, Membership and Procedures) (Wales) Regulations 2010.

The claimant alleged a fundamental error of fact, breach of the public sector equality duty under section 149 of the Equality Act 2010, and unlawful treatment of consultation issues, including the scope of the Ministers’ review and the effect of earlier consultation by the Local Health Board. The court determined permission to proceed.

1. Outcome. Permission to proceed was refused on the alleged error of fact and equality grounds, but granted on the consultation grounds A, B and D. The claim was to proceed to a substantive hearing on those grounds.
2. Alleged error of fact. A failure to appreciate a fact fundamental to a decision can constitute an error of law. However, the contemporaneous documents showed that the Scrutiny Panel understood the Community Health Council to seek doctors constantly present at the Hospital. The Minister adopted that recommendation and substantially followed the Council’s position. The alleged misunderstanding was therefore unarguable.
3. Equality duty. The question whether a decision-maker had due regard under section 149 of the Equality Act 2010 is substantive. The duty requires investigation and consideration only where a relevant protected characteristic may realistically arise in the exercise of the public function. The claimant had identified no such characteristic, and the evidence did not show that the selected model would create the alleged additional burden of transfers and travel. The ground was therefore unarguable.
4. Consultation. The court regarded the challenges concerning regulation 27 of the Community Health Councils (Constitution, Membership and Procedures) (Wales) Regulations 2010, the Minister’s investigative obligation, and the effect of the Local Health Board’s consultation as arguable. The issues concerned the relationship between Local Health Boards, Community Health Councils and the Welsh Ministers and had wider public importance. They required full argument and a considered judgment at a substantive hearing.
5. The proposed level of service was not immutable, and could not be altered without proper process and consultation, including consultation with the Community Health Council.

First-instance judicial review permission decision. The claim was to proceed to a substantive hearing on Grounds A, B and D.