AA & Ors, R (on the application of) v National Health Commissioning Board

A duty requiring NHS England to make arrangements to ensure that at least 92% of relevant patients wait less than 18 weeks is a target duty. It requires arrangements directed towards meeting the standard, rather than a guarantee that the standard will be achieved. The duty is owed to the relevant population or cohort, not to individual patients. The cohort is confined to elective referrals for consultant-led services, including qualifying interface services. This construction follows from the wording and scheme of the National Health Service Commissioning Board and Clinic Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012/2996, supported by legitimate explanatory materials. The court also held that the conditions for correcting a drafting mistake would have been met if that alternative had been necessary.

Four claimants, including two children and two adults, challenged NHS England’s handling of long waits for specialist gender identity services. They argued that regulation 45(3) of the National Health Service Commissioning Board and Clinic Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012/2996 imposed an obligation to achieve the 18-week standard, rather than merely to make arrangements directed towards achieving it.

Mr Justice Chamberlain, in the Administrative Court, held that the duty was a target duty but concluded that it applied beyond consultant-led services: [2023] EWHC 43 (Admin). The claimants appealed on the duty issue. NHS England challenged the conclusion on the cohort issue by respondent’s notice. The central questions were the nature of the regulation 45(3) duty and the services to which it applied.

Lord Justice Popplewell gave the leading judgment, with which Lord Justice Moylan and Lady Justice King agreed.

1. Disposition. The appeal was dismissed. The court nevertheless determined the cohort issue because it had been fully argued and had important consequences. Subject to further argument on the form of relief, the appropriate declaration was that NHS England’s regulation 45 duty applies only to referrals for consultant-led services.
2. Nature of the duty. The words make arrangements to ensure are ambiguous because the word to may express purpose or achievement. In context, the duty concerns activity by NHS England as a commissioner, not the direct provision of healthcare. Whether arrangements achieve the waiting-time standard depends on matters outside NHS England’s control, including demand, staffing, service reorganisation, industrial action, supply interruptions, research and wider policy choices. The duty is therefore to make arrangements with a view to meeting the standard, not an absolute duty to achieve it.
3. The duty is owed to the population or cohort as a class. The 8% margin means that an individual patient cannot establish a breach merely because that patient waits more than 18 weeks. The individual alternative-provider duties in regulations 47 to 49 do not determine whether regulation 45(3) is absolute or target-based.
4. Cohort. The regulations, read as a whole, show that the waiting-time standard concerns elective referrals for consultant-led services, including specified interface services. The distinction between categories of eligible referrer concerns acceptance of referrals, not different types of service. Regulations 46 and 47 to 49 would otherwise produce an unexplained mismatch between the initial waiting-time duty and the alternative-provider regime.
5. If correction of a drafting mistake had been necessary, the three conditions in Inco Europe would have been satisfied: the intended purpose was clear, the contrary drafting was inadvertent, and the substance of the corrected provision was apparent.

• Court of Appeal (Civil Division) — The appeal was dismissed and the cohort issue was determined in favour of NHS England: [2023] EWCA Civ 902.
• High Court of Justice, King’s Bench Division, Administrative Court — Mr Justice Chamberlain held that regulation 45(3) imposed a target duty but was not confined to consultant-led services: [2023] EWHC 43 (Admin).