Mark Tattersall, R (on the application of) v NHS England

An appeal right created by an administrative scheme may be regulated by that scheme, including by a provision requiring finality after delay. Such a provision is not inherently unlawful merely because it may end an extant appeal without a merits determination.

Its application must nevertheless satisfy common law standards of lawfulness, reasonableness and fairness. Relevant safeguards included reasonable endeavours to progress the appeal, a discretion to allow reasonable postponement in exceptional circumstances, and judicial review of the decision-maker’s exercise of those functions.

The claimant challenged NHS England’s decision to treat his appeal against withdrawal of his National Training Number as final. The appeal had been commenced in 2015 under the Gold Guide and had not proceeded to a merits determination. A later edition introduced a Curtailment Provision under which an appeal not heard within one year could be treated as final where reasonable endeavours had been made, subject to postponement in exceptional circumstances.

The claimant argued that the provision was unlawful, did not apply to his appeal because of legitimate expectation, and had been applied unfairly and unreasonably. The court considered those three grounds.

1. Lawfulness. The Gold Guide itself conferred the appeal right and was therefore entitled to regulate, shape and circumscribe it. The Curtailment Provision was not inherently unfair, unreasonable or unlawful. It contained safeguards: reasonable endeavours to progress the appeal were a precondition; the Postgraduate Dean had discretion to allow reasonable postponement in exceptional circumstances; and both matters had to be decided lawfully, reasonably and fairly.
2. Saleem. The decision in Saleem concerned a statutory appeal and rules which rigidly prevented an extant appeal from being determined on its merits, even where the appellant was blameless. It did not establish that every provision ending an extant appeal without a merits determination was inherently unlawful. The Curtailment Provision was materially different because it incorporated a discretion and permitted consideration of all the circumstances and possible alternatives.
3. Legitimate expectation. The successive editions of the Gold Guide took immediate effect and replaced earlier editions. Neither the earlier edition nor the conduct of the appeal created a clear and unqualified expectation that the appeal would necessarily be determined under the old provisions or would proceed to a merits determination regardless of later circumstances.
4. Application. The one-year criterion was satisfied. NHS England had made repeated, conscientious and transparent efforts to progress the appeal, including setting deadlines, seeking information and attempting to arrange an occupational health assessment. The claimant had not provided replacement grounds, hearing availability, the requested regulatory information, or taken substantive steps to progress the occupational health assessment. The pandemic extension had been reasonable, and the refusal of a further extension was lawful, reasonable and fair.
5. The apparent utility of continuing the appeal was a relevant consideration. The decision-maker was not required to adopt less drastic alternatives where previous efforts to secure progress had been fruitless and the claimant had not agreed to proceed on the existing grounds, in his absence or on written submissions. The claim for judicial review was dismissed. Costs were ordered against the claimant, including £10,000 on account, and permission to appeal was refused.

First-instance judicial review proceedings. The claim challenged NHS England’s decision dated 26 January 2021. The High Court dismissed the claim and refused permission to appeal.