Court of Appeal dismisses Keep the Horton General appeal after concluding that two phase consultation was lawful

A local campaign group has had its appeal of a judicial review claim dismissed.

The original judicial review was brought by four local authorities challenging the lawfulness of a two phase public consultation undertaken by Oxfordshire Clinical Commissioning Group. Phase one of the consultation was on a proposal that included plans to close 146 acute hospital beds. Phase two, which was ultimately cancelled, was to be on proposals for changes to several other services, including community care provision.

The facts

The plans for service reconfiguration went through NHS England’s assurance process and satisfied its four tests for service change. The CCG duly embarked on phase one of the consultation. NHS England subsequently incorporated their fifth test (the bed closures test) into its assurance process that would apply to the proposals currently out for consultation. No public announcement about the fifth test was made by the CCG to consultees. 

Following phase one of the consultation, amendments were made to the proposal to close 146 acute hospital beds, and NHS England issued a statement to the CCG that the proposal met the further assurance test, subject to conditions. The CCG made a decision to implement the proposal and the original claim for judicial review was submitted. The judge dismissed this after concluding that the outcome of phase one would have no effect on the phase two proposals.

The appeal

The appellants main ground of appeal was that the judge at first instance had failed to consider the fairness of the consultation in view of the bed closures being the subject of phase one of the consultation when they were inextricably linked to the proposals for community provision in phase two. 

The appeal was dismissed by the Court of Appeal for the following reasons:

• The material provided in phase one on bed closures was adequate to enable the public to provide an informed response on the issue. This was evidenced in the responses received during the consultation, which were meaningfully taken into account when the decision was made.
• The decision to split the consultation into two phases was not unfair, although the court did find some merit and sympathy in the appellant’s submission that the consultation should have dealt with everything at once or reserved its decision on bed closures until after the conclusion of phase two. The central fact in deciding that the two phase consultation was sufficiently fair to have been lawful was that there was still sufficient information provided to consultees about community provision within phase one to enable them to provide intelligible and meaningful responses on the nature and extent of the care required in the community for the purposes of phase one.
• No duty to consult arose from the addition of the fifth assurance test on bed closures. The assurance process was a matter for NHS England and did not require consultation.

Lord Justice McCombe specifically stated that:

• “fairness does not require perfection” and that
• “a challenge will not necessarily succeed simply by pointing out a way in which the consultation could have been better, unless the failure to proceed in that way has led to real unfairness”

He also confirms that it is only NHS England that must be satisfied that the five assurance process tests are met so there is no obligation for the CCG to consult on them. Despite their win, the CCG and their lawyers were criticised for not once, but twice, submitting new evidence late when, in fact, the evidence had been available to them for some time. 

Comment

The judgment confirms that a phased consultation is capable of being lawful, but is rarely preferable, and may require careful handling.

The most important take away, though, is that the Sedley criteria remain gospel for running a fair consultation. That this particular consultation was undertaken at a point when proposals were still formative, that consultees were provided during phase one with sufficient information and time to provide an informed response on the proposals, and that there responses were meaningfully taken into account when finalising the decision-making business case, were essential factors in the decision by the court that phased consultation was, on this occasion, lawful and that the appeal should be dismissed.

We have an excellent team of lawyers at Mills & Reeve with significant experience of advising on public involvement and consultation who would be delighted to provide you with advice in this complex area.