(1) Gurpreet Kaur Juttla (a child, by her litigation friend Satnam Kaur) v Hertfordshire Valleys Clinical
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 21 February 2018 |
| Neutral Citation | [2018] EWHC 267 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5906/2017 |
| Date | 21 February 2018 |
[2018] EWHC 267 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: CO/5906/2017
The Queen on the application of
and
Jenni Richards QC & Sian Davies (instructed by Irwin Mitchell) for the Claimants
Eleanor Grey QC & Ms Nicola Greaney (instructed by Capsticks) for the Defendant
Clive Sheldon QC & Hannah Slarks (instructed by County Solicitor) for the 1 st Interested Party
The 2 nd & 3 rd Interested Parties did not attend and were not represented
Hearing dates: 6–7 February 2018
My decision is that the resolution made by the defendant on 16 November 2017 to remove funding of £600,000 annually from Nascot Lawn in Watford (a respite service for children with complex medical needs) with effect from 16 May 2018, is set aside under the first ground of challenge. The remaining five grounds are all dismissed. The consequence is that the defendant must now comply with its legal duty formally to consult Hertfordshire County Council (HCC) about its proposal to withdraw that funding. That should lead to a collaborative dialogue. If no agreement is reached HCC can refer the controversy to the Secretary of State who has far-reaching powers to make a merits-based decision on the issue. I am satisfied that aside from the first ground the complaints made by the claimants about the process which led to the decision are not made out.
The defendant is Hertfordshire Valleys Clinical Commissioning Group. Clinical commissioning groups were created by the Health and Social Care Act 2012, and replaced Primary Care Trusts on 1 April 2013. They are clinically-led statutory NHS bodies responsible for the planning and commissioning of health care services for its local area. There are now 207 clinical commissioning groups in England. The defendant is one of the bigger clinical commissioning groups. It is in financial trouble. In the first two years of its existence (2013–14, and 2014–15) it met its financial targets. In the third year (2015–16) it was only able to do so by taking a number of special non-recurrent measures and by exiting the year with an underlying deficit. In the summer of 2016, that is to say about a third of the way through that financial year, it was obvious that the position of the defendant had deteriorated. It was spending far more in that year than it had in the previous year. In the year 2014–15 the defendant spent £668 million. In the year 2015–16 it spent £711 million. And in the year after that, 2016–17, it spent £761 million.
In the summer of 2016 the defendant disclosed the financial problems to NHS England and was placed in formal “financial turnaround”. This unwelcome status required certain measures to be taken. A “turnaround director” was appointed to examine the defendant's expenditure to help achieve a balanced position for the financial year. Further, the defendant also established an Investment Committee.
For the year 2017–18 the defendant has been allocated an increase of £20 million or 2.73% on the previous year's allocation. Plainly, this will not come close to meeting the historic rate of increase of expenditure. Taking into account the expected growth in demand for services, inflationary pressures and changes to things that the defendant is required to commission, its financial plan has concluded that there is a gap between allocated funding and expected expenditure of £34 million in the current financial year, 2017–18, and a further shortfall on top of that of £23 million in the following year. Therefore, savings have to be made of around £47 million. Therefore, painful though it will be, some services in the local area will have to be cut.
Nascot Lawn has been providing a respite care service for children with complex health needs and their parents since at least 1986. The defendant inherited Nascot Lawn from its predecessor primary care trust. Around 35 (the figure varies) children use the overnight service. Three of them are the claimants in these proceedings. These children suffer from very severe physical and mental impairments; they are truly some of the most disadvantaged individuals with whom the defendant has to deal. There are around 20 staff. Half of that number are nurses; the other half are trained health care support workers. The children stay for short breaks; four nights a month is not unusual. Obviously, the primary benefit is respite for the parents who otherwise have round-the-clock care of these severely impaired children. But plainly when they are at Nascot Lawn the children are receiving health services.
The defendant is the principal funder of Nascot Lawn. Two other neighbouring clinical commissioning groups also contribute funds but in much smaller amounts. The £600,000 per annum provided by the defendant represents the great majority of Nascot Lawn's funding. Without it closure is inevitable. It is common ground that closure would be very distressing not only to the children but particularly to their parents.
The defendant has decided that part of the £47 million saving it must make will come from the withdrawal of funding from Nascot Lawn. The members of the Investment Committee who made that decision on 16 November 2017 were well aware of how upsetting the impact of the decision would be; the statements from the parents were described by one member as “heart-rending, unsettling and humbling”, by another as “heart-rending”. A principal justification for the decision that had to be made was that arrangements could be made for respite care to be continued elsewhere in the county for these children. Nascot Lawn is one of four such facilities in Hertfordshire. The other three are all provided by HCC and are in, respectively, Rickmansworth, Welwyn Garden City and Hertford. Each of these caters for some children with complex health needs, although in each facility that cohort is in a minority. Care in those facilities is provided by trained carers and not by nurses. There is capacity in the other three facilities for the children who will be displaced by the closure of Nascot Lawn, although realistically having regard to the geography for most of the affected children the only feasible alternative is the facility in Rickmansworth.
Unfortunately, HCC does not have the money to enter into a partnership with the defendant in order to secure the continuation of the funding.
The first ground of challenge ( Ground A) contests the defendant's view that it is not funding a “health service” within the terms of sections 3 and 3A of the National Health Service Act 2006. These provide:
3 Duties of clinical commissioning groups as to commissioning certain health services
(1) A clinical commissioning group must arrange for the provision of the following to such extent as it considers necessary to meet the reasonable requirements of the persons for whom it has responsibility–
(a) hospital accommodation,
(b) other accommodation for the purpose of any service provided under this Act,
(c) medical, dental, ophthalmic, nursing and ambulance services,
(d) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as the group considers are appropriate as part of the health service,
(e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as the group considers are appropriate as part of the health service,
(f) such other services or facilities as are required for the diagnosis and treatment of illness.
…
3A Power of clinical commissioning groups to commission certain health services
(1) Each clinical commissioning group may arrange for the provision of such services or facilities as it considers appropriate for the purposes of the health service that relate to securing improvement—
(a) in the physical and mental health of the persons for whom it has responsibility, or
(b) in the prevention, diagnosis and treatment of illness in those persons.
…
On any view nursing services are being provided at Nascot Lawn as well as services for the care of persons suffering from illness. Ms Grey QC is realistic enough to recognise that looked at literally what is happening at Nascot Lawn is the provision of health services as described in the 2006 Act. But she argues that this does not mean that they ought to be considered to be meeting ‘health’ needs, or viewed as health services which fall properly within the responsibilities of the defendant. Perhaps recognising the weakness of that argument, she quickly moved to an alternative one namely that even if it is a health service the same decision would reasonably and lawfully have been taken anyway. That may be true, but it does not address the point that if the funding of Nascot Lawn is the provision of a health service then a specific legal obligation formally to consult HCC arises, as I shall explain.
Looked at from first principles it seems to me obvious that even if the primary motive or objective is to provide respite for the parents that the services being provided are health services nonetheless. But the matter is put beyond doubt by authority. In R (on the application of T & Ors v London Borough of Haringey [2005] EWHC 2235 (Admin) Mr Justice Ousley was concerned with a three-year-old...
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