Buckingham, R (On the Application Of) v NHS Corby Clinical Commissioning Group

A public authority which gives a plain and unequivocal assurance that it will consult before changing a substantive policy must honour that assurance unless an overriding legal duty or countervailing public interest justifies departure. Prior engagement intended to shape consultation proposals does not itself amount to consultation on the resulting proposal.

Individuals affected by proposed changes to NHS commissioning arrangements must be involved in both their development and consideration. Equality duties require focused consideration of protected characteristics and inequalities in access, supported by relevant information. A decision may be quashed where those duties are not met.

The claimant, a founder member of a local action group, challenged the defendant clinical commissioning group’s decision to replace an urgent care centre with a same-day access hub. The proposed change removed the walk-in facility and introduced triage and navigation to other services.

The challenge alleged breach of a legitimate expectation of consultation, breach of National Health Service Act 2006 section 14Z2, failure to comply with the public-sector equality duty under section 149 of the Equality Act 2010, and breach of the duty concerning inequalities in access under section 14T of the 2006 Act. The interested party raised additional grounds concerning commissioning plans, errors of fact and conflicts of interest.

The central issues were whether consultation was required, whether the statutory involvement and equality duties had been met, and whether the decision was vitiated by material factual errors.

1. Legitimate expectation. The claimant had a legitimate expectation that consultation would follow the pre-consultation engagement. The defendant’s statements and published material were plain and unequivocal. References to an NHS England assurance process did not qualify the assurance so as to permit the defendant to abandon consultation.
2. The defendant’s reasons for changing course did not justify dispensing with consultation altogether. The proposal being reduced to one option, having been shaped by public engagement, or being said not to alter substantially the model of care did not amount to an overriding legal duty or countervailing public interest. The views of NHS England and the local authority scrutiny committee did not provide such justification. The defendant’s duty under section 14Q of the 2006 Act could have been accommodated alongside consultation.
3. Section 14Z2. The defendant had involved affected individuals in developing the proposal, but not in considering it. The December workshop was directed to developing proposals for future consultation. The later meeting was a meeting in public, with limited questions and no opportunity for meaningful response. That did not satisfy the statutory requirement.
4. Equality and access duties. The equality impact assessment did not show focused awareness of the possible effect on protected groups or of the separate duty to reduce inequalities in access under section 14T. Relevant information gaps remained and should have been addressed before the decision, including through consultation or further engagement.
5. The statutory commissioning-plan issue was left unresolved because the decision was unlawful on other grounds. The alleged error concerning use of the Manchester Triage Tool was not established as an uncontentious and objectively verifiable error. However, the assertion that there had been comprehensive engagement on the proposal was an error of fact likely to have materially influenced the decision. The conflict-of-interest arrangements were sufficient.
6. The decision was quashed. An appropriate consultation exercise and a further equality impact assessment were required before reconsideration. The defendant was also directed to clarify the evidence concerning the Manchester Triage Tool and the extent to which the centre was used for primary care.