R JP (by his father and litigation friend BP) v NHS Croydon Clinical Commissioning Group
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 07 July 2020 |
| Neutral Citation | [2020] EWHC 1470 (Admin) |
| Docket Number | Case No: CO-817-2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 July 2020 |
[2020] EWHC 1470 (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-817-2020
and
Michael Armitage & Ciar McAndrew (instructed by Hopkin Murray Beskine) for the Claimant
David Lawson (instructed by Capsticks Solicitors LLP) for the 1 st Defendant
Christine Cooper (instructed by LB of Croydon Legal Services) for the 2 nd Defendant
Hearing dates: 23–24 June 2020
The hearing was conducted remotely by Zoom
Approved Judgment
For the reasons given below, the decisions made by the first defendant on 27 November 2019, 19 December 2019 and 14 January 2020 are set aside. The claimant, JP, will be promptly reassessed by a fresh panel and a fresh nurse assessor will be appointed. The order for interim relief will remain in force until the reassessment has been concluded. The other claims against the first and second defendant will be dismissed.
JP is seven years old. In September 2017, just after he had started primary school, he was diagnosed with a malignant brain stem tumour. Surgery removed most, but not all, of the tumour. He spent several months in hospital, some of which in a vegetative state. In May 2018 he was well enough to be discharged from hospital. However, the failure to achieve a complete surgical excision of the tumour means that he suffers from a range of serious health issues including, in particular, respiratory problems. In order to meet those problems JP has been fitted with a tracheostomy and is supported by mechanical ventilation during his night-time sleeping hours.
In May 2018, shortly after he was discharged from hospital, the first defendant (“the CCG”) assessed JP as eligible for continuing care and commissioned provision to him of 63 hours per week of night-time care (i.e. nine hours each night) and 45 hours per week of daytime care during the school term. The daytime carer would accompany JP on his journey to and from school and would care for him whilst he was at school.
In August 2018 that care provision was confirmed following a further assessment.
In October 2019 the CCG initiated a reassessment of JP's care provision. This led, in circumstances which I will set out in greater detail below, to a decision by the CCG on 27 November 2019 that JP was no longer eligible for continuing care and to reduce the scale of weekly care to four nine-hour nights in term time, and five nine-hour nights in holiday time. Further, the daytime care in term time was reduced to remove cover for JP's journey to and from school. That decision was confirmed on 19 December 2019 and an appeal was dismissed on 14 January 2020. However, shortly after the issue on 27 February 2020 of judicial review proceedings impugning these decisions, the second defendant (“the local authority”) agreed to put in place transport arrangements which ensured that one of JPs parents would be able to accompany him to and from school. So that latter issue has fallen away.
The focus of the dispute before me has therefore been largely confined to the reduction in the night-time care of JP.
There are six issues I have to decide:
i) Was the CCG's decision that JP was no longer eligible for continuing care, and that his package of support should be reduced, irrational?
ii) Did the CCG provide adequate reasons for its decision?
iii) Did the CCG fail to comply with the relevant procedure set out in the national framework for NHS continuing care assessments?
iv) Did the CCG misapply the national framework when reaching its substantive decision on JP's eligibility for continuing care?
v) Has the local authority approached its assessment of JP's care needs in a lawful manner?
vi) Have the CCG and the local authority unlawfully failed to cooperate with one another?
Although I have been referred to a very substantial number of authorities (the three authorities bundles contain 1679 pages), there is no serious dispute about the law. In cases such as this I always remind myself of the classic formulation by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, CA. Although there have been hundreds of decisions since then its fundamental tenets remain untouched.
The principles are:
i) Judicial review of an exercise of executive power is a remedy of last resort. It will not be granted if there exists an equivalently efficacious alternative remedy.
ii) The judicial review court is not a court of appeal. In a court of appeal the challenge may either be to the decision-making process or to the outcome. In the judicial review court challenges are almost inevitably to the decision-making process; challenges to outcome are exceedingly difficult.
iii) A person exercising an executive power must:
a) not act dishonestly or in bad faith or in breach of a person's Convention rights;
b) direct himself properly in law and properly apply it;
c) call his own attention to the matters which he is bound to consider by asking himself the right question and taking reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly;
d) exclude from his consideration matters which are factually incorrect or otherwise irrelevant to what he has to consider; and
e) give sufficient reasons for his decision so that any person affected can know why he has won or lost, and any judicial review court can conduct a meaningful review.
The natural justice principle of nemo iudex in causa sua is captured by the requirement of acting in good faith. The principle of audi alteram partem is caught by the requirement of calling attention to the matters the decision-maker is bound to consider.
iv) Provided that these rules are followed, the decision itself will be almost immune from challenge. Where the rules are followed, a challenge to outcome will only be possible where it can be said that the decision is so absurd that no sensible person could ever dream that it lay within the powers of the decision-maker.
I now examine the context in which the impugned decisions were made. They were governed by a document issued by the Department of Health called the National Framework for Children and Young Persons Continuing Care 2016. Unlike the regime for adults this scheme is not prescribed by any statute or statutory instrument. The Framework is well described in Mr Armitage's skeleton argument from which I quote as follows:
“The Framework sets out guidance for CCGs when assessing the needs of children and young people whose complex needs cannot be met by universal or specialist health services. As well as describing, in detail, the process to be followed when carrying out such assessments (and making subsequent decisions on the nature and extent of any care to be provided), the Framework includes a decision-making tool (the “DST”) to be used to assist in assessing children's needs across 10 “domains” (covering areas such as breathing, eating and drinking and mobility). The DST sub-divides each domain into ascending “levels of need”, namely “no additional needs”, “low”, “moderate”, “high”, “severe” and “priority”, with descriptions given of the matters corresponding to each level of need in each domain. The Framework states that a child is “likely to have continuing care needs if assessed as having a severe or priority level of need in at least one domain of care, or a high level of need in three domains of care”: see para 148. However, the Framework makes clear that this is not a firm rule, and that assessors, when presenting recommendations to the decision-making forum, should “consider the level of need identified in all care domains in order to gain the overall picture”: para 149.
In relation to the “breathing” domain, which is of particular importance in the present case, the Framework indicates (see pp. 32 – 33) that a child's needs will be “severe” if the child:
‘Has frequent, hard-to-predict apnoea (not related to seizures); or severe, life-threatening breathing difficulties, which require essential oral pharyngeal and/or nasopharyngeal suction, day or night; or a tracheostomy tube that requires frequent essential interventions (additional to routine care) by a fully trained carer, to maintain an airway; or requires ventilation at night for very poor respiratory function; has respiratory drive and would survive accidental disconnection, but would be unwell and may require hospital support.’”
If a child scores one severe mark or three high marks he or she will be designated as “eligible” for continuing care. But such a designation does not answer the question of how much continuing care. Conversely, a failure to score one severe mark or three high marks does not shut out a child from all care, continuing or otherwise. On 27 November 2019 JP scored only one high mark. Consequently, he was designated as not “eligible” for continuing care, yet he was commissioned night-time care that was 4/7ths (term-time) or 5/7ths (holiday-time) of what had gone before. The scale of this non-eligible, non-continuing, care was informed by the use of another tool called the CCHAT which, counterintuitively, stands for Continuing Care Health Assessment Tool.
Mr Lawson forcefully and eloquently argued that the level of non-eligible, non-continuing care is unconnected to the result generated by the DST. I cannot accept this argument. It is obvious to me that had the result generated one severe mark or three high marks, the night-time care provided to JP would not have been altered. It is true that the scale of the departure from the previous night-time care was not explicitly...
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...if there is available an effective alternative remedy to obtain relief. See R (JP) v NHS Croydon Clinical Commissioning Group [2020] EWHC 1470 (Admin) where it was held that: “Judicial Review of an exercise of executive power is a remedy of last resort. It will not be granted if there exis......