Sashi Shashikanth, R (on the application of) v NHS Litigation Authority & Anor

A determination made by the Secretary of State, or an appointed adjudicator, under a statutory NHS dispute-resolution scheme is presumptively a public function and is amenable to judicial review. That conclusion is not displaced because the underlying general medical services contract creates private-law rights or because the contractor elects to use the statutory procedure.

Where National Health Service (General Medical Services Contracts) Regulations 2015 require a contract to contain provisions equivalent to a prescribed duty, the prescribed provision does not itself become a contractual duty. The contracting body must vary the contract in accordance with its variation terms before relying on the duty to terminate it.

The appellant, a general practitioner, held two non-NHS general medical services contracts with a clinical commissioning group. Following the introduction of a duty concerning co-operation with primary care networks, the group served remedial and termination notices. The appellant referred the resulting contractual dispute to the Secretary of State under the statutory dispute-resolution procedure. An appointed adjudicator upheld the terminations.

The appellant sought judicial review. Bourne J held that the adjudicator had made an error of law because the contracts had not been varied to include an equivalent co-operation obligation, but held that the adjudicator’s determination was not amenable to judicial review: [2022] EWHC 2526 (Admin). The appeal concerned amenability, the asserted contractual variation, and the respondent’s alternative case based on estoppel by convention.

1. Appeal allowed. The adjudicator’s determination under regulations 82 and 83 of the National Health Service (General Medical Services Contracts) Regulations 2015 was amenable to judicial review. The adjudicator exercised a statutory jurisdiction within a procedure prescribed by statute. That was sufficient to establish a public function unless rebutted by the nature of the decision.

2. The fact that the dispute concerned contractual rights did not rebut that conclusion. Inferior courts and tribunals may determine private-law rights while exercising public functions. The statutory scheme provided one dispute-resolution process for NHS contracts and non-NHS general medical services contracts. The contractor’s unilateral choice to invoke that procedure did not turn the adjudicator’s statutory function into a private one. The decisions in Holmcroft and West were distinguishable because their relevant powers were contractual. The contrary observations in Haffiz were wrong and should not be followed.

3. Regulation 32 required the contracts to contain provisions equivalent in effect to paragraph 15A of Schedule 3. Paragraph 15A did not itself impose a contractual obligation on the appellant. The adjudicator therefore erred by treating it as legislation whose breach constituted a breach of the contractual requirement to comply with relevant legislation.

4. The letter of 28 October 2019 was not a contractual variation. Read fairly, it proceeded on the mistaken assumption that paragraph 15A itself bound the appellant. It neither purported to introduce an equivalent contractual obligation nor gave the required notice of its wording and effective date. The commissioning group could not terminate the contracts merely because it had made clear that it expected co-operation; it had first to establish an existing contractual obligation and a breach.

5. The referral of a dispute about the termination notices necessarily required the adjudicator to decide whether the alleged contractual obligation existed. A later submission by the appellant’s lawyer did not remove that issue from the referred dispute. Estoppel by convention was not established: there was no common assumption that the contracts had been varied, no relevant responsibility on the appellant for the group’s error, no sufficient detriment, and no unconscionability.

6. The court indicated that the appropriate order would be to quash the determination and remit the matter to the adjudicator on the basis that no equivalent co-operation obligation had been incorporated into either contract, subject to submissions on the precise order.

• Court of Appeal (Civil Division): Allowed the appeal and held that the adjudicator’s statutory determination was amenable to judicial review: [2024] EWCA Civ 1477.

• High Court (Administrative Court): Bourne J held that the adjudicator had erred in law on contractual variation, but held that neither the adjudicator’s determination nor the termination notices were amenable to judicial review: [2022] EWHC 2526 (Admin). The Court of Appeal reversed the conclusion concerning the adjudicator.