Keep the Horton General v Oxfordshire Clinical Commissioning Group & Anor

A statutory public consultation is lawful if, in its particular statutory and factual context, it affords consultees a fair and effective opportunity to address the proposal. Fairness does not require a perfect process or every conceivable improvement. Consultees must receive enough information to make an intelligent response, and their responses must be conscientiously considered.

Where hospital-bed closures were proposed after temporary closures and alternative arrangements were already operating, consultation could fairly occur before later proposals for wider community services had been formulated. NHS England assurance tests governed NHS England’s approval process. A clinical commissioning group was not required to consult the public on whether those tests had been met.

Four local authorities brought judicial review proceedings challenging Oxfordshire Clinical Commissioning Group’s 2017 public consultation on proposed changes to health services. The challenge included the proposal permanently to close 146 acute hospital beds after their temporary closure. Keep the Horton General, a campaign group, was an interested party and appealed after Mostyn J dismissed the claim on 21 December 2017.

The appeal concerned only bed closures. It alleged unfairness because community-care proposals were deferred to a second consultation phase, the disadvantages of closures were inadequately stated, a new NHS England bed-closure assurance test was not put to consultees, and late evidence had been admitted below. The central issue was whether the consultation had been unfair in the circumstances.

1. Appeal dismissed unanimously. The consultation on permanent bed closures was not unlawful.

2. The applicable standard was fairness. Applying [2014] UKSC 56, a consultation need not be perfect. The question was whether, in its statutory and factual context, consultees had a fair opportunity to make an intelligent and meaningful response. The consultation materials adequately enabled responses on bed closures. The potential disadvantages of closures, including concern about inadequate community provision, were obvious and were in fact forcefully raised. The responses influenced the eventual staggered-closure decision.

3. The separation of the consultation into two phases was not unfair in relation to bed closures. There was an interdependency between closures and community care. However, the phase 1 issue was whether the alternative arrangements already piloted and operating could support permanent closure of the temporarily closed beds. Consultees could address that question without waiting for unformulated phase 2 proposals. Their concerns were considered by the Clinical Senate, NHS England, the decision-making business case and the CCG.

4. The CCG was not obliged to consult on whether NHS England’s four, and later five, assurance tests had been met. Under the guidance made pursuant to National Health Act 2006, those tests were for NHS England to assess as part of approving proposals before implementation. The court approved the conclusion in R (Hinsull) v NHS Dorset CCG [2018] EWHC 2331 (Admin) at [119]. NHS England had in any event accepted the relevant assurance for closure of 110 beds.

5. The late admission of evidence below did not justify setting aside the decision. Although its production was highly unsatisfactory, the objecting parties received time to respond and sought no adjournment. The failure to seek an adjournment was fatal to the complaint. Lord Justice McCombe additionally observed that fresh-evidence applications on appeal should be made formally, on proper notice and by reference to the customary criteria.

• Court of Appeal (Civil Division): dismissed Keep the Horton General’s appeal in [2019] EWCA Civ 646.
• Administrative Court: Mostyn J dismissed the local authorities’ judicial review claim on 21 December 2017. No lower-court neutral citation is stated in the judgment.