HL, R (on the application of) v Secretary of State for Health and Social Care

A statutory power to create an appeals scheme does not, without more, impose a duty to exercise it. A common-law duty to consult may arise from a statutory requirement, an unequivocal promise, an established practice, or exceptional conspicuous unfairness. Earlier consultations do not generally create an obligation to repeat a full consultation when policy changes, particularly where extensive later engagement has occurred. The common-law right of access to justice protects effective access to courts and tribunals, but it does not require creation of a merits appeal where existing judicial review, human-rights claims and ombudsman routes remain available. Article 8 procedural rights likewise leave the state a wide margin in socio-economic policy choices.

The claimant, a severely disabled adult dependent on social-care support, challenged the Secretary of State’s December 2021 White Paper decision not immediately to introduce regulations under section 72 of the Care Act 2014 establishing appeals against local-authority decisions under Part 1. She alleged a common-law duty to consult, an unlawful impediment to access to justice, and breach of Article 8 procedural rights. The Secretary of State said section 72 conferred a discretion, that extensive stakeholder engagement had preceded the White Paper, and that the scheme remained under review. The central issues were whether the decision was unlawful for want of consultation, whether the absence of regulations denied effective access to justice, and whether Article 8 required an independent appeals mechanism.

1. Ground 1 dismissed. The court assumed, without deciding, that the White Paper represented a challengeable decision not to implement an appeals system within a foreseeable timeframe. Section 72 conferred a power, not a duty. The earlier consultations did not amount to a clear, unequivocal and unconditional promise or established practice that full consultation would precede every later decision on social-care reform. Nor did the case reach the high threshold of conspicuous unfairness.
2. The pre-White Paper engagement was extensive and satisfied the Gunning/Sedley criteria. It was lawful to conduct a more limited consultation in the context of earlier comprehensive consultations and continuing policy work. A change in policy following consultation does not automatically require the entire consultation process to be repeated. The duty of fairness does not require perfection.
3. Ground 2 dismissed. The common-law right of access to justice requires effective real-world access and prohibits legal impediments creating a real risk that persons will be prevented from reaching a court or tribunal. That principle, illustrated by Witham, UNISON and FB, concerned measures which effectively obstructed access to adjudication. The absence of section 72 regulations did not directly or indirectly prevent access to a court or tribunal. Existing judicial review, human-rights claims and the Local Government and Social Care Ombudsman remained available, even though they might not determine the merits of every dispute.
4. Ground 3 dismissed. Article 8 may carry procedural rights, but it does not prescribe an appeals system of any particular type. The Secretary of State enjoyed a particularly wide margin of discretion because the decision concerned socio-economic priorities and allocation of limited funding. The option of an appeals system remained under review and further evidence gathering could lead to its introduction.
5. The claim was dismissed.

First-instance judicial review in the Administrative Court. The claim was dismissed.