AA & Ors., R (on the application of) v National Health Service Commissioning Board (operating under the name of NHS England)

A precise statutory waiting-time standard may impose a duty to make reasonable arrangements directed towards achieving it, rather than an absolute duty to achieve it. The construction depends on the statutory language, the nature of the cohort, the surrounding enforcement scheme and available remedies.

Failure to achieve a target immediately does not necessarily establish breach where rational remedial steps are being taken. A duty to have regard to the NHS Constitution is procedural. Gender reassignment includes a settled decision to adopt some aspect of another gender’s identity and need not involve medical treatment. Discrimination requires proof that the protected characteristic caused the treatment or disadvantage.

The claimants challenged NHS England’s arrangements for commissioning children’s and adults’ gender identity services. They relied on the 18-week waiting-time duty in regulation 45 of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, the commissioning duty in section 3B of the National Health Service Act 2006, the duty to have regard to the NHS Constitution under section 2 of the Health Act 2009, and duties under the Equality Act 2010.

The issues were whether regulation 45 applied beyond consultant-led services, whether the statutory duties had been breached by long waiting times, whether the arrangements discriminated because of gender reassignment, and whether NHS England had complied with its public sector equality duty.

1. Claim dismissed. None of the five pursued grounds succeeded.
2. Regulation 45 applies to all referrals by an eligible referrer to a health service provider. The court declined to insert words restricting it to consultant-led or interface services. The language was clear, and the conditions for correcting drafting errors identified in Inco Europe Ltd v First Choice Distribution were not satisfied. R (SSE Generation Ltd) v Competition and Markets Authority reinforced the need to avoid judicial legislation.
3. Regulation 45 requires arrangements to be made with a view to ensuring that 92% of the relevant cohort commence treatment within 18 weeks. It is a hard-edged standard, but the duty is not absolute. Failure to meet the standard, without more, is not a breach. The court applied the distinction between absolute and target duties explained in R v Inner London Education Authority ex p Ali and Rixon.
4. The cohort duty is owed to the population as a whole, not to particular individuals. The surrounding scheme, including directions powers and individual remedies under regulations 47 to 49, supported that construction. Although declaratory relief will generally follow established unlawfulness, the court may consider realistically what relief would achieve. Mandatory or declaratory relief would risk directing NHS resource allocation without the necessary expertise or information: R (Ahmad) v Newham LBC; R (Hunt) v North Somerset Council.
5. NHS England was taking concrete and rational steps to reduce waiting times, including additional resources, service redesign and workforce development. It was therefore not in breach of regulation 45 or section 3B of the 2006 Act.
6. Section 2 of the Health Act 2009 imposes a procedural duty to have regard to the NHS Constitution. NHS England’s awareness of the unmet standard and its remedial action discharged that duty.
7. Section 7(1) of the Equality Act 2010 is not confined to medical transition. It includes a settled decision to adopt some aspect of another gender’s identity. Whether a child meets the definition is fact-specific. The first four claimants did.
8. The direct discrimination claim failed because the evidence attributed the waiting times to demand, clinical controversy, specialist workforce shortages and commissioning redesign, rather than gender reassignment. The indirect discrimination claim failed because the arrangements were not applied to persons without the characteristic and there was no relevant disparity within the cohort.
9. Section 149 of the Equality Act 2010 imposes a duty of substance, rigour and open-mindedness. NHS England had due regard to the effects of waiting times and to equality of opportunity and good relations.