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

The claimant challenged the Defendant CCG's decision of 30 January 2018 to change services at Corby Urgent Care Centre and to rename it a Same Day Access Hub. The court found that the CCG had given plain and unequivocal assurances during an extended pre-consultation engagement process that there would be public consultation on proposals shaped by that engagement. That legitimate expectation was not honoured and no overriding legal duty or public interest justified the failure to consult.

The CCG also breached its statutory duty under section 14Z2 of the National Health Service Act 2006 by failing to involve the individuals affected in the consideration of the proposal (the public meeting in question did not amount to the required involvement). The Equality Act 2010 public-sector equality duty (section 149) and the separate duty under section 14T of the 2006 Act were not complied with: the Equality Impact Assessment relied upon was incomplete in material respects and the CCG did not obtain additional information before deciding the proposal.

The court rejected some of the factual challenge based on alleged errors (notably it did not find a vitiating, objectively verifiable error in clinical judgments derived from use of the Manchester Triage Tool) but held that officers’ reports misleadingly stated that there had been engagement on the specific proposal. The decision was quashed and the matter remitted for appropriate consultation and an adequate EIA.

The claimant, a founder member of a local action group, sought judicial review of a CCG Governing Body decision taken on 30 January 2018 to adopt a Same Day Access Hub model for the Corby Urgent Care Centre. The CCG had run an extended pre-consultation engagement exercise during 2017 which, on its published materials and in public statements, had been presented as shaping options to be put to a formal public consultation. The CCG nonetheless decided at an extraordinary public Governing Body meeting to proceed without holding the promised consultation, relying on advice from NHS England, the East Midlands Clinical Senate and the local overview and scrutiny chair, and on the view that the proposed model did not materially change the model of care.

Relief sought: quashing of the 30 January 2018 decision and orders requiring proper consultation and consideration of equality impacts.

Issues framed:

• whether the public had a legitimate expectation of consultation and, if so, whether the CCG lawfully departed from it;
• whether the CCG breached the duty to involve service users in the development and consideration of proposals under section 14Z2 of the National Health Service Act 2006;
• whether the public-sector equality duty (section 149 of the Equality Act 2010) and the duty under section 14T of the 2006 Act were discharged;
• whether statutory requirements about commissioning plans required consultation before the decision;
• whether material errors of fact (including misuse of the Manchester Triage Tool) vitiated the decision; and
• whether any conflict of interest was identified and properly managed.

Court's reasoning: The judge held that the engagement process and public communications amounted to plain assurances that consultation would follow and thus created a legitimate expectation. The reasons given by the CCG for not consulting did not amount to an overriding legal duty or countervailing public interest that could justify abandoning the promise to consult. On section 14Z2, the court found that the public had been involved in developing proposals but not in the consideration of the final proposal; the public meeting format did not satisfy the statutory requirement. The EIA before the Governing Body was prepared before consultation was intended and contained acknowledged gaps; the CCG failed to obtain further relevant information, contrary to the public-sector equality duty and section 14T. The court accepted that the Manchester Triage Tool was not the correct instrument for the clinical points relied upon by opponents but did not find an uncontentious, objectively verifiable factual error sufficient to invalidate the decision on that ground. Declarations of conflict of interest were made at the meeting and, in the judge's view, were sufficient to manage the conflicts identified. In exercise of its discretion the court quashed the Decision and ordered an appropriate consultation and an EIA focusing on equality and access issues.

The judgment records that quashing the decision and requiring proper consultation is both necessary for good administration and, on the evidence, unlikely to frustrate timely implementation of a lawful replacement model.

The claim succeeded. The decision of 30 January 2018 was quashed because the CCG had given plain assurances that public consultation would follow pre-consultation engagement and failed to honour that legitimate expectation; the CCG also breached section 14Z2 of the National Health Service Act 2006 by not involving affected individuals in the consideration of the proposal, and failed to have due regard under the public-sector equality duty and section 14T by relying on an EIA that left material gaps and by not obtaining further relevant information. Some factual challenges (including reliance on the Manchester Triage Tool) did not amount to uncontentious, objectively verifiable errors sufficient to vitiate the decision. The court ordered appropriate consultation and an adequate Equality Impact Assessment and remitted the matter for reconsideration consistent with the judgment.