JP, R (On the Application Of) v NHS Croydon Clinical Commissioning Group

In judicial review of NHS continuing-care decisions, a court may intervene where the decision-maker relies on inaccurate or irrelevant information, fails to consider material evidence, or gives inadequate reasons. A non-statutory national framework should generally be followed to promote consistency and transparency, but substantial latitude remains in its implementation. Eligibility thresholds under an assessment tool do not alone determine the amount of non-eligible care: the decision on the scale of care remains discretionary, although the assessment outcome is relevant. An alternative appeal or complaints process will not bar judicial review where it is not equivalently efficacious.

JP, a child with serious respiratory problems, a tracheostomy and night-time ventilation, challenged decisions by NHS Croydon Clinical Commissioning Group reducing his overnight care and finding him ineligible for continuing care. The challenge concerned decisions dated 27 November 2019, 19 December 2019 and 14 January 2020. The central issues included irrationality, adequacy of reasons, compliance with the National Framework for Children and Young Persons Continuing Care 2016, the lawfulness of the local authority’s assessment, and alleged failures of cooperation between the defendants.

The CCG argued that an appeal and complaints process provided an equivalently efficacious alternative remedy. The court had to determine whether judicial review should proceed and whether the impugned decisions were lawfully made.

1. The decisions of 27 November 2019, 19 December 2019 and 14 January 2020 were set aside. JP was to be reassessed by a fresh panel with a fresh nurse assessor. Interim relief was to continue until reassessment.
2. The CCG’s process was fundamentally flawed. The nurse assessor represented specialist evidence as showing that JP could manage indefinitely without night-time ventilation, although the opinion was conditional and provisional. The panel therefore relied on inaccurate and irrelevant information and failed to consider relevant evidence. The later decision failed to address the reinstatement of night-time ventilation, was taken by a person without power to determine whether the new evidence altered the panel’s decision, and was inadequately reasoned.
3. The decision-support-tool result did not mechanically determine the amount of non-eligible care. It was nevertheless relevant to whether, and to what extent, the existing care package should be reduced. The court applied the ordinary Wednesbury principles.
4. The alternative appeal and complaints procedures were not equivalently efficacious. The CCG had refused to restore the previous care pending those procedures and changed position only after interim relief. Continuing the judicial review avoided wasted resources, multiplicity of proceedings and unresolved grounds.
5. The non-statutory National Framework should generally be followed to promote transparency and consistency, but its status allowed considerable latitude in implementation. The November decision was not additionally unlawful merely because of alleged non-compliance with the Framework.
6. The remaining claims were dismissed. Section 1 of the Localism Act 2011 could not authorise a local authority to usurp functions allocated to the NHS. The cooperation duties under the Children Act 2004 and National Health Service Act 2006 did not justify the mandatory order sought, and no failure to cooperate was established.