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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Juttla & Ors, R (on the application of) v Hertfordshire Valleys CCG & Ors  EWHC 267 (Admin) (21 February 2018)
Cite as:  EWHC 267 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN -on the application of- (1) GURPREET KAUR JUTTLA
(a child, by her litigation friend SATNAM KAUR)
(2) SIENNA SCOTT
(a child, by her mother and litigation friend
(3) LIAM MURPHY
(a child, by his mother and litigation friend ANGELINA MURPHY)
|- and -
HERTFORDSHIRE VALLEYS CLINICAL
- and -
(1) HERTFORDSHIRE COUNTY COUNCIL
(2) HERTFORDSHIRE COMMUNITY
(3) EAST AND NORTH HERFORDSHIRE CLINICAL COMMISSIONING GROUP
Eleanor Grey QC & Ms Nicola Greaney (instructed by Capsticks) for the Defendant
Clive Sheldon QC & Hannah Slarks (instructed by County Solicitor)
for the 1st Interested Party
The 2nd & 3rd Interested Parties did not attend and were not represented
Hearing dates: 6-7 February 2018
Crown Copyright ©
Mr Justice Mostyn:
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.
65. To my mind, it also shows how the purpose of the care should be regarded. It is spoken of as respite care for the mother. From one viewpoint, the purpose of its provision is so that the mother can have a few nights of unbroken sleep per week or some time by herself a week or to look after T. That could be seen as social care for the mother. But its nature and purpose is to provide medical care for D; the intention behind the provision of that medical care is her safety while her mother enjoys respite. There is nothing different in quality or care about the disputed provision.
66. The gravity of the consequences of a failure in care, the duration of the care need, which required her carer always to be present lest something had to be dealt with rapidly, underscores the medical rather than social service nature of the provision.
67. It has in fact always been provided by nurses except where the mother has had specific training. The reluctance of others, whether teachers, close relatives or health care assistants, to be trained in the particular procedures serves only to emphasise the medical nature of the provision without itself being determinative. The nurses themselves require specific training in tracheostomy care. While it is possible for others to be trained in that specific care, it would still clearly be an important medical procedure in which they were trained.
The fact that the care happened to be provided by nurses was not determinative. On this reasoning, with which I fully agree, there can be no doubt that the services provided at Nascot Lawn are health services.
(1) Subject to paragraphs (2) and (12) and regulation 24, where a responsible person ("R") has under consideration any proposal for a substantial development of the health service in the area of a local authority ("the authority"), or for a substantial variation in the provision of such service, R must -
(a) consult the authority;
(b) when consulting, provide the authority with -
(i) the proposed date by which R intends to make a decision as to whether to proceed with the proposal; and
(ii) the date by which R requires the authority to provide any comments under paragraph (4);
(c) inform the authority of any change to the dates provided under paragraph (b); and
(d) publish those dates, including any change to those dates.
(4) Subject to regulation 30(5) (joint committees) and any directions under regulation 32 (directions as to arrangements for discharge of health scrutiny functions), the authority may make comments on the proposal consulted on by the date or changed date provided by R under paragraph (1)(b)(ii) or (c).
(5) Where the authority's comments under paragraph (4) include a recommendation to R and R disagrees with that recommendation -
(a) R must notify the authority of the disagreement;
(b) R and the authority must take such steps as are reasonably practicable to try to reach agreement in relation to the subject of the recommendation; and
(c) in a case where the duties of R under this regulation are being discharged by the responsible commissioner pursuant to paragraph (12), the authority and the responsible commissioner must involve R in the steps specified in sub-paragraph (b).
(6) This paragraph applies where -
(a) the authority has not exercised the power in paragraph (4); or
(b) the authority's comments under paragraph (4) do not include a recommendation.
(7) Where paragraph (6) applies, the authority must inform R of -
(a) its decision as to whether to exercise its power under paragraph (9) and, if applicable, the date by which it proposes to exercise that power; or
(b) the date by which it proposes to make a decision as to whether to exercise that power.
(8) Where the authority has informed R of a date under paragraph (7)(b), the authority must, by that date, make the decision referred to in that paragraph and inform R of that decision.
(9) Subject to paragraph (10), the authority may report to the Secretary of State in writing where -
(a) the authority is not satisfied that consultation on any proposal referred to in paragraph (1) has been adequate in relation to content or time allowed;
(b) in a case where paragraph (2) applies, the authority is not satisfied that the reasons given by R are adequate; or
(c) the authority considers that the proposal would not be in the interests of the health service in its area.
(10) The authority may not make a report under paragraph (9) -
(a) in a case falling within paragraph (5), unless the authority is satisfied that -
(i) the steps specified in paragraph (5)(a) to (c) have been taken, but agreement has not been reached in relation to the subject of the recommendation within a reasonable period of time;
(ii) R has failed to comply with its duty under paragraph (5)(b) within a reasonable period of time; or
(b) in a case to which paragraph (6) applies, unless the authority has complied with the duty in paragraph (7) and, where applicable, paragraph (8).
(11) A report made under paragraph (9) must include -
(a) an explanation of the proposal to which the report relates;
(b) in the case of a report under paragraph (9)(a) or (b), the reasons why the authority is not satisfied of the matters set out in paragraph (9)(a) or (b);
(c) in the case of a report under paragraph (9)(c), a summary of the evidence considered, including any evidence of the effect or potential effect of the proposal on the sustainability or otherwise of the health service in the area of the authority;
(d) an explanation of any steps the authority has taken to try to reach agreement with R in relation to the proposal or the matters set out in paragraph (9)(a) or (b);
(e) in a case falling within paragraph (10), evidence to demonstrate that the authority has complied with the applicable condition in that paragraph;
(f) an explanation of the reasons for the making of the report; and
(g) any evidence in support of those reasons.
B: Failure to assess the needs of users
C: Failure to consult
D: Breach of the Public Sector Equality Duty set out in section 149 of the Equality Act 2010.
E: Breach of section 11 of the Children Act 2004
F: Breach of Art 8 of the ECHR taken with Art 3 of the UNCRC
"In the absence of special circumstances, normally we would expect it to be unrealistic and unreasonable, on grounds of prematurity alone, for the health authority in all cases to make assessments of patients and to take decisions on the details of placement ahead of a decision on closure. Neither the statutory provisions nor the guidance issued expressly require assessments to be made or decisions on alternative placements to be taken before a decision to close can be lawfully made."
14J Publication of constitution of clinical commissioning groups
(1) A clinical commissioning group must publish its constitution.
14P Duty to promote NHS Constitution
(1) Each clinical commissioning group must, in the exercise of its functions—
(a) act with a view to securing that health services are provided in a way which promotes the NHS Constitution, and
(b) promote awareness of the NHS Constitution among patients, staff and members of the public.
14Z2 Public involvement and consultation by clinical commissioning groups
(1) This section applies in relation to any health services which are, or are to be, provided pursuant to arrangements made by a clinical commissioning group in the exercise of its functions ("commissioning arrangements").
(2) The clinical commissioning group must make arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information or in other ways)—
(a) in the planning of the commissioning arrangements by the group,
(b) in the development and consideration of proposals by the group for changes in the commissioning arrangements where the implementation of the proposals would have an impact on the manner in which the services are delivered to the individuals or the range of health services available to them, and
(c) in decisions of the group affecting the operation of the commissioning arrangements where the implementation of the decisions would (if made) have such an impact.
(3) The clinical commissioning group must include in its constitution—
(a) a description of the arrangements made by it under subsection (2), and
(b) a statement of the principles which it will follow in implementing those arrangements.
6.2.2 Public Involvement
In carrying out its functions the CCG shall make arrangements to secure public involvement in the planning, development and consideration of proposals for changes and decisions affecting the operation of commissioning arrangements by ensuring that the views of individuals to whom the services commissioned are being or may be provided are represented:
- In the planning of the CCG commissioning arrangements.
- In the development and consideration of the proposals by the CCG for changes in the commissioning arrangements.
- In the decisions of the CCG affecting the operation of commissioning arrangements where the decisions would, if made, impact on the manner in which the services are delivered to the individuals or the range of health services available to them.
You have the right to be involved, directly or through representatives, in the planning of healthcare services commissioned by NHS bodies, the development and consideration of proposals for changes in the way those services are provided, and in decisions to be made affecting the operation of those services.
i) Under the defendant's constitution: the right to public involvement in the planning, development and consideration of proposals for changes.
ii) Under the NHS constitution: the right to be involved in the development and consideration of proposals for changes.
iii) Under section 14Z2(2): the right to have arrangements to secure that individuals to whom the services are being or may be provided are involved (whether by being consulted or provided with information or in other ways).
In my judgment these rights compendiously define the scope of the duty to "consult". There is no room for the common law to augment, let alone alter, these rights.
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
"It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in 'narrow textual analysis'."
This approach applies equally where the challenge in question asserts that the decision-maker failed to grapple with a Human Rights Act claim: see Broadland District Council v Brightwell  EWCA Civ 1516. It is noteworthy that in the case of Zoumbas v Secretary of State for the Home Department  UKSC 74 Lord Hodge dismissed a sustained challenge to the Secretary of State's admittedly succinct decision letter, saying at : "In our view, the Secretary of State does not have to record and deal with every piece of evidence in her decision letter."
A public authority must, in the exercise of its functions, have due regard to the need to:
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
This is a key provision in the corpus of anti-discrimination law. Breach of it is a serious matter. Allegations of breach of it should not be lightly made.
"74. As Dyson LJ emphasised, the equality duty is "not a duty to achieve a result", but a duty "to have due regard to the need" to achieve the goals identified in paras (a) to (c) of section 149(1) of the 2010 Act. Wilson LJ explained that the Parliamentary intention behind section 149 was that there should "be a culture of greater awareness of the existence and legal consequences of disability". He went on to say in para 33 that the extent of the "regard" which must be had to the six aspects of the duty (now in subsections (1) and (3) of section 149 of the 2010 Act) must be what is "appropriate in all the circumstances". Lord Clarke suggested in argument that this was not a particularly helpful guide and I agree with him. However, in the light of the word "due" in section 149(1), I do not think it is possible to be more precise or prescriptive, given that the weight and extent of the duty are highly fact-sensitive and dependant on individual judgment.
75. As was made clear in a passage quoted in Bracking, the duty "must be exercised in substance, with rigour, and with an open mind" (per Aikens LJ in R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin),  PTSR 1506, para 92. And, as Elias LJ said in Hurley and Moore, it is for the decision-maker to determine how much weight to give to the duty: the court simply has to be satisfied that "there has been rigorous consideration of the duty". Provided that there has been "a proper and conscientious focus on the statutory criteria", he said that "the court cannot interfere … simply because it would have given greater weight to the equality implications of the decision".
"….what is required is a realistic and proportionate approach to evidence of compliance with the PSED, not micro-management or a detailed forensic analysis by the court. Second, it is clear that the PSED, despite its importance, is concerned with process, not outcome, and the court should only interfere in circumstances where the approach adopted by the relevant public authority is unreasonable or perverse."
"The fact that a public body has produced an EIA in appropriate form in advance of the decision in question is, usually, convincing evidence that it has had regard to its public sector equality duties when making the relevant decision."
i) recognised that the Defendant was the major funder of Nascot Lawn and any decision to end discretionary funding "may lead to decisions to close the service";
ii) focussed on analysing the impact of a decision which culminated in the unavailability of Nascot Lawn as a respite service;
iii) set out the mitigating steps that had been taken by the defendant to address the anxiety of parents and carers including the health assessment process, training programme for carers, identification of a lead professional in HCT for each child to liaise with HCC; and
iv) set out the alternative respite options that would be available and noted that HCC would provide transport to any new respite care or short breaks placement in line with assessed need.
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
Rather, Parliament enacted a lesser duty which requires as part of the process of decision making that regard is had to the need to safeguard and promote the welfare of children. That is a long way from requiring public bodies to ensure that in all aspects of its decision-making the best interests of any affected child shall be a primary consideration. This point was made in Nzolameso v City of Westminster  UKSC 22 at  where Lady Hale stated "section 11 does not in terms require that the children's welfare should be the paramount or even a primary consideration." In  she stated: "We have not heard argument on the interesting question of whether, even where no Convention right is involved, section 11 should nevertheless be construed consistently with the international obligations of the United Kingdom under article 3 of the UNCRC. That must be a question for another day." It has not been suggested that I should in this case so construe section 11. Therefore, the issue is whether the defendant is in breach of the limited duty stipulated by the literal words of section 11.
"The foreseeable consequence of the withdrawal of funding is that Nascot Lawn, a service provided to the most disabled and vulnerable of children, will close. It was plainly incumbent upon the defendant to have specific regard to the need to safeguard and promote the welfare of the children using Nascot Lawn when taking its decision. It is equally plain from the contemporaneous documentation that the defendant did not have any such regard and thus breached the section 11 duty."
I disagree. The EIA had sufficient regard to the welfare of the children, and their interests were considered properly by the committee. Further, as Ms Grey QC rightly says, the defendant has been involved in discussions with the local authority and the provider in order to facilitate the next steps for the respite provision for the families, children and young people affected.
"In particular, the Claimants submit there was a failure to treat their best interests as a primary (or indeed any) consideration in the decision making, pursuant to article 3 of the UNCRC. It is widely accepted that a breach of an unincorporated Convention article can support a finding of a breach of an incorporated ECHR right; see for example Mathieson v SSWP  UKSC 47 at  and Zoumbas v SSHD  1 WLR 3690 at  ("the best interests of a child are an integral part of the proportionality assessment under article 8 of the Convention")."
"In the present context, however, the provision of respite care to the Claimants is a discharge of the positive obligation to promote the right to family and private life for these severely disabled children. Furthermore, there is a real risk that the cessation of funding for Nascot Lawn may lead to a breakdown of the Claimants' respective family lives, as the witness statements powerfully demonstrate. It is the potential impact on the family and private life of the Claimants that brings this particular case squarely within the scope of Article 8."
Therefore, it is argued that Article 3 of the UNCRC is in play.
"(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; …"
However, the Supreme Court upheld the decision in that case that is was not contrary to the interests of those children, aged seven years, four years and five months, all born in the UK, to return to the Democratic Republic of the Congo with their parents.