This article originally appeared in Issue 4 (May 2020).
This was a judicial review of a decision that the Claimant was not eligible for NHS Continuing Healthcare. The Claimant had suffered a severe spinal injury while playing rugby in 1984. He suffers from tetraplegia with no active motor or sensory function in the trunk or lower limbs and with very limited function in his upper limbs. Remarkably, despite his very significant disabilities, the Claimant qualified as a solicitor and has worked for the CPS for nearly 30 years. Although not presently responsible for funding his own care his concern was that when he retires he will have to contribute to the cost of his care services from his income as social services may no longer be willing to fund the level of care (around 42 hours a week) that he needs. The Defendant Clinical Commissioning Group (‘CCG’) undertook an assessment for eligibility of Continuing NHS Healthcare (‘CHC’) but ultimately its panel concluded that he was not eligible despite an earlier recommendation that there was evidence of a primary health need for skilled individualised care which the MDT felt met the CHC eligibility requirement. That decision was upheld by an Independent Review Panel (‘IRP’) in a decision of 6 July 2018.
Dismissing the claim and refusing relief, the judge first held that the Claimant had addressed his claim to the wrong target. The judge found that the target should have been the IRP rather than the CCG and that the Claimant had had a proper opportunity to challenge the decision in the appeal to the IRP. All but one of the ten grounds of judicial review failed. In respect of the one ground that succeeded “the panel which met in March 2017 had no delegated authority to make a decision”, relief was refused having regard to s.31(2A) of the Senior Courts Act 1981. Even if there had been a joint panel, bearing in mind that the CCG is the ultimate decision-maker, it is, in the words of the statute: “highly likely that the outcome would not have been substantially different”.
This case underlines the importance of properly identifying the right target for judicial review, exhausting remedies, and the application of the new test in s.31(2A) of the Senior Courts Act 1981 which provides that the court must refuse relief if the outcome would not have been substantially different. It is important to understand this provision in context and that it will usually be applied with caution. See in particular Lindblom LJ at paragraph 273 of the Heathrow Third Runway case, R (Plan B Earth) v Secretary of State for Transport  EWCA Civ 214 :
“It would not be appropriate to give any exhaustive guidance on how these provisions should be applied. Much will depend on the particular facts of the case before the court. Nevertheless, it seems to us that the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is “highly likely” that the outcome would not have been “substantially different” if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law. Furthermore, although there is undoubtedly a difference between the old Simplex test and the new statutory test, “the threshold remains a high one” (see the judgment of Sales L.J., as he then was, in R (on the application of Public and Commercial Services Union) v Minister for the Cabinet Office  EWHC 1787 (Admin);  1 All ER 142, at paragraph 89).”