Juttla & Ors, R (on the application of) v Hertfordshire Valleys CCG & Ors

Respite care involving nursing and medical care for children with complex needs is a health service, even where parental respite is a principal purpose. A proposal substantially to withdraw its funding therefore engages the statutory health-scrutiny consultation procedure. Informal correspondence does not satisfy that duty.

There is no general common-law duty to expand a statutory public-involvement scheme. Challenges to the adequacy of information, equality assessments and consideration of children’s welfare concern the decision-making process. They succeed only where the defect reaches the high threshold of irrationality or perversity. The statutory duty to have regard to children’s welfare does not make their best interests a primary or paramount consideration, and a reduction in a statutory care package does not, without more, engage article 8.

The claimants, three children with severe physical and mental impairments, challenged a decision by Hertfordshire Valleys Clinical Commissioning Group to withdraw £600,000 annual funding from Nascot Lawn, a respite service involving nursing care. The proposed withdrawal would probably lead to closure.

The challenge alleged that the service was not a health service within the National Health Service Act 2006, and that the decision breached statutory consultation, public-involvement, equality, child-welfare and human-rights obligations. The central issues were whether the statutory health-scrutiny consultation procedure applied and whether the decision-making process was otherwise unlawful.

1. Ground A succeeded. The services at Nascot Lawn were health services within sections 3 and 3A of the National Health Service Act 2006. The medical nature of the care was not altered because it also provided respite for parents. The reasoning in R (on the application of T & Ors v London Borough of Haringey [2005] EWHC 2235 (Admin)) was adopted.
2. The proposed withdrawal of most funding amounted to a substantial variation in the provision of the health service. Regulation 23 of the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 required formal consultation with Hertfordshire County Council. The limited correspondence relied upon by the defendant did not fulfil that obligation. If agreement was not reached, the statutory process permitted referral to the Secretary of State, who could make a merits-based decision under regulation 26.
3. The decision was therefore quashed on the first ground, and the regulation 23 process had to be followed. The remaining grounds were dismissed.
4. There was no duty, absent special circumstances, to obtain individual assessments of all potentially affected users before deciding whether to close or withdraw funding from a service. In any event, substantial information and individual impact assessments were available. The challenge therefore did not meet the irrationality or perversity threshold.
5. The public-involvement duties under the 2006 Act, the defendant’s constitution and the NHS Constitution defined the scope of the obligation. There was no room for the common law to augment or alter that statutory scheme. The defendant had complied with it.
6. The public-sector equality duty under section 149 of the Equality Act 2010 was a duty of process, not outcome. The court should avoid micro-management and interfere only for irrationality or perversity. The equality impact assessment had been properly and conscientiously considered.
7. Section 11 of the Children Act 2004 required arrangements to have regard to the need to safeguard and promote children’s welfare. Parliament had not required children’s best interests to be a primary or paramount consideration. The evidence showed sufficient regard to the children’s welfare.
8. Article 8 was not engaged merely because a statutory body reduced an individual’s care package. If article 8 had been engaged, the decision would nevertheless have been justified by the wide margin available when balancing individual and community interests and allocating limited resources.

First-instance judicial review. No prior decision in the same proceedings is stated in the judgment, although an earlier decision to cease funding had been quashed by consent on 9 October 2017.