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

The court considered five remaining grounds of judicial review challenging NHS England’s commissioning of gender identity services. Key legal issues were the construction and enforceability of regulation 45 of the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (the 18‑week RTT requirement); the scope of the Secretary of State/commissioning duties under s. 3B of the National Health Service Act 2006 and s. 2 of the Health Act 2009; and alleged direct and indirect discrimination and breaches of the public sector equality duty under the Equality Act 2010 (notably ss. 7, 29 and 149).

The judge held that reg. 45, properly construed, applies to referrals to a "health service provider" as defined in the Regulations but is a duty to make arrangements with a view to ensuring the 92%/18‑week standard (a duty to act so as to achieve the target), not an absolute obligation to achieve that result in every individual case. The statutory scheme provides individual routes (regs. 47–49) and Secretary of State powers for addressing breaches. Given the complex causes of long waits and the contemporaneous, substantial steps NHSE was taking (service redesign, increased funding, training and pilot services) it could not be said to be in breach of reg. 45 or of s. 3B. The s. 2 (Health Act 2009) duty to have regard to the NHS Constitution is procedural and was not breached. The discrimination claims failed because (i) direct discrimination required a like‑for‑like comparison and the causes of delay for gender identity services differed materially from other specialist services, and (ii) the alleged provision, criterion or practice did not operate across persons without the protected characteristic. The public sector equality duty had been considered in substance (EIAs, the Cass review and other materials) and was not breached. The claim was dismissed.

This is a first instance judicial review brought by six claimants (two children, two adults and two organisations) challenging NHS England’s commissioning and arrangements for gender identity services. The claim attacked NHS England on five grounds: breach of reg. 45 of the 2012 Regulations (92% start treatment within 18 weeks); breach of s. 3B National Health Service Act 2006 (arrangements for children who may need puberty blockers); breach of s. 2 Health Act 2009 (having regard to NHS Constitution rights to start consultant‑led treatment within 18 weeks); direct and/or indirect discrimination contrary to s. 29/ s.19 of the Equality Act 2010; and failure to comply with the public sector equality duty in s. 149 of the Equality Act 2010.

The factual background was extensive. Demand for both children’s and adults’ gender identity services rose sharply from 2012–2017 while workforce and capacity did not keep pace, producing prolonged waiting lists (very long waits at Tavistock for children and many adults waiting years for first appointments). NHSE had been undertaking a range of measures: commissioning the Cass Review, modifying service specifications (in response to litigation and regulatory reports), commissioning pilot adult services, funding training and fellowships, increasing allocated budgets, and committing to establish regional services for children following Cass.

Issues framed by the court included:

• How reg. 45 should be construed: whether limited to consultant‑led services or extended to all referrals to a "health service provider", and whether it imposes an absolute duty to achieve the 92%/18‑week standard or a target/aiming duty.
• Whether NHS England’s arrangements under s. 3B (and its duties under s. 2 of the Health Act 2009) were unlawful because waiting times frustrate the clinical purpose of time‑critical treatments (for example puberty blockers).
• Whether NHS England had unlawfully discriminated (directly or indirectly) against those with the protected characteristic of gender reassignment, and whether it breached the public sector equality duty.

The court’s reasoning was:

• On construction, reg. 45 on its face applies to referrals to a "health service provider"; non‑legislative material referring to "consultant‑led" waiting times did not displace the clear statutory language. However reg. 45 is a cohort standard expressed as a duty to "make arrangements to ensure" 92% are treated within 18 weeks; read in context (including the availability of individual remedies in regs. 47–49 and Secretary of State powers) it is a duty to act with a view to securing the target rather than an absolute per‑patient entitlement enforceable by mandatory relief.
• Because the duty is one to act with a view to achieving the target, the court assessed NHS England’s current actions. Given the multiplicity of causes for waiting times (rapid demand growth, workforce shortages, contested clinical practice and the need to redesign services) and the concrete steps NHS England had taken (service redesign, funding increases, training, pilots and transition plans), the court could not conclude NHS England was irrationally failing to perform the duty; there was no basis to grant relief.
• S. 3B (arranging specified services) and s. 2 of the Health Act 2009 (procedural duty to have regard to the NHS Constitution) were not breached for parallel reasons: the statutory wording contemplates discretion and the evidence showed NHS England was taking reasonable, substantive steps to address waiting times.
• The direct discrimination claim failed because the factual causes of the long waits for gender identity services differed materially from other specialist services, so there was no proper like‑for‑like comparator and no evidence the treatment was because of the protected characteristic. The indirect discrimination claim failed because the contested arrangements were not a PCP applied to persons without the protected characteristic.
• The public sector equality duty had been considered in substance (EIAs, Cass Review and related materials showed awareness of adverse impacts and planned mitigations) and was not unlawfully discharged.

The court dismissed the claim and declined to grant declaratory or mandatory relief given the nature of the statutory duties, the cohort character of reg. 45, and the practical resource and allocation consequences that court‑ordered remedies would involve.

The claim is dismissed. The court held that regulation 45 of the 2012 Regulations, properly construed, applies to referrals to a "health service provider" but is a duty to make arrangements with a view to achieving the 92%/18‑week standard rather than an absolute per‑patient entitlement. Given the complex, systemic causes of long waits and the substantial steps NHS England was taking (service redesign, increased funding, training, pilots and planned regional services), NHS England was not in breach of reg. 45 or s. 3B of the National Health Service Act 2006. The duty in s. 2 of the Health Act 2009 is procedural and was not breached. The direct and indirect discrimination claims under the Equality Act 2010 failed because of lack of an appropriate like‑for‑like comparison and absence of a PCP applying across groups. The public sector equality duty had been addressed in substance and was not unlawfully discharged. The court declined to grant relief.