F v Surrey County Council

A clinical treatment policy should be read in its practical and clinical context, rather than with the strictness appropriate to legislation. A policy which ordinarily requires preparatory alcohol-reduction work before detoxification may nevertheless permit direct referral where, following assessment, clinicians conclude that the ordinary pathway is clinically inappropriate.

In judicial review, a court need resolve a primary factual dispute only where this is necessary to determine a pleaded public law ground. Written evidence is assessed without an absolute preference for either party. Where a material fact cannot be proved, the party bearing the burden fails on it.

A refusal to reimburse privately obtained treatment was lawful where the decision-maker made adequate enquiries, knew that assessment had been offered and declined, and was not obliged to assume an earlier unlawful refusal of treatment.

The claimant, a recovering alcoholic, underwent successful private residential detoxification in April and May 2021 after his mother believed that the Council’s commissioned service would require him first to undertake an alcohol-reduction programme. The treatment cost £19,650.

In November 2021, the claimant sought reimbursement. The Council refused on 23 December 2021, relying on earlier offers of assessment that had not been taken up. The claimant sought judicial review, alleging an inflexible and unpublished policy, unfairness, and discrimination contrary to Article 14 read with Article 8 of the ECHR.

After partial permission, he sought to amend his claim following disclosure of the service’s Operational Policy. The central issues were whether that policy or its operation imposed a mandatory alcohol-reduction requirement, whether the reimbursement decision involved a public law error, and whether the decision engaged Convention rights.

1. The application to amend and the claim were dismissed. The court refused permission to add grounds because, even if added, they could not assist the claimant.

2. The Operational Policy did not impose an inflexible rule that alcohol-reduction work had to precede detoxification. It was a clinical policy for non-lawyers and was to be read with the evidence about its practical operation. “Active treatment” meant that an assessed patient had a treatment plan. In exceptional circumstances, clinicians could refer a patient for detoxification without any prior alcohol-reduction work where that pathway was clinically inappropriate: see paras [37]-[45].

3. On judicial review, a court should first ask whether resolution of a factual dispute is necessary to a pleaded public law ground. If it is, the court usually proceeds on written evidence. There is no absolute rule that unchallenged evidence for a public authority must be accepted. If a material factual conflict cannot be resolved, the party bearing the burden of proof fails on that fact: see paras [46]-[50].

4. The reimbursement decision was lawful. The decision-maker had made appropriate enquiries, knew that assessment had repeatedly been offered and declined, and was entitled to conclude that reimbursement was not warranted. He was not required to assume that the claimant had earlier been unlawfully refused treatment. It remained unknown what an accepted assessment would have concluded: see paras [51]-[57].

5. The alleged failure to publish the Operational Policy could not have been material to the reimbursement decision. The claimant could not establish prejudice from non-disclosure of a policy which, properly construed, allowed the exceptional direct referral he said should have been available. The court therefore did not decide whether there is a general duty to publish every policy relevant to a discretion: see paras [60]-[63].

6. The Article 14 claim fell away with the rejection of the alleged blanket policy. In any event, the refusal to reimburse the cost of successful private treatment did not, on the evidence, have a sufficient connection with interests protected by Article 8 of the ECHR to fall within its ambit for Article 14 purposes: see paras [64]-[67].

High Court (Administrative Court): Permission was refused on the papers on 21 July 2022. At an oral hearing on 3 November 2022, permission was granted on the inflexible-policy and Convention-rights grounds, while permission was refused on the publication ground. The claimant later sought to amend the claim after disclosure of the Operational Policy. Mr Justice Chamberlain refused that application and dismissed the claim.