Buckingham, R (On the Application Of) v NHS Corby Clinical Commissioning Group [2018] EWHC 2080 (Admin)

[2018] EWHC 2080 (Admin)Case No CO/1605/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Cardiff Civil and Family Justice Centre,, 2 Park Street, Cardiff, CF10 1ETDate 01/08/2018
Before
HIS HONOUR JUDGE JARMAN QC
Between
THE QUEEN (ON THE APPLICATION OF LYN BUCKINGHAM)ClaimantNHS CORBY CLINICAL COMMISSIONING GROUPDefendantLAKESIDE+ LIMITEDInterested Party
Ms Sarah Sackman and Mr Aidan Wills (instructed by Leigh Day) for ClaimantMs Fenella Morris QC and Ms Rose Grogan (instructed by Mills & Reeve LLP) for DefendantMr David Lock QC and Mr Richard Clarke instructed by the Interested PartyHearing Hearing dates: 23 July 2018
Judgment ApprovedHH JUDGE JARMAN QC:
[1]The Claimant Mrs Buckingham is a founder member of the Save Corby Urgent Care Action Group (the Group), founded in 2017 after press reports that the Urgent Care Centre (the Centre) in Corby may be closed. She challenges a decision made on 30 January 2018 (the Decision) at an extra-ordinary meeting of the governing body of the Defendant (CCG) to change the provision of health services provided by the Interested Party (Lakeside) at the Centre and to rename it a Same Day Access Hub (the Hub). CCG is under a statutory duty to commission acute and community health care services under part 1 of the National Health Service Act 2006 (the 2006 Act), as well as primary healthcare services under part 4.[2]Mrs Buckingham was given permission to bring this challenge on all three grounds by Garnham J on 19 June 2018. At the same time, he gave Lakeside permission to advance the additional grounds set out in its acknowledgment of service and limited its oral submissions to no more than 30 minutes. He expedited the hearing of the claim to be heard in Cardiff in the week commencing 23 July 2018.[3]The three original grounds of challenge are as follows. First, there was a legitimate expectation that CCG would consult users or potential users of the Centre before making the Decision and failed to do so without good reason. Second, the failure to consult or at least involve such users was a breach of the duty imposed on CCG to do so by section 14Z2 of the 2006 Act. Third, when making the Decision CCG failed to have due regard to the need to reduce inequalities between patients with respect to their abilities to access health services pursuant to section 14T of the 2006 Act and/or to the differential impacts on people with protected characteristics within the meaning of the Equality Act 2010 (the 2010 Act).[4]Lakeside challenges the decision on three additional grounds. Fourth, the failure to consult amounts to a breach by CCG of its duty under section 14Z13 of the 2006 Act which requires consultation in respect of a commissioning plan prepared by CCG under section 14Z11. After some prevarication the final position of CCG is that the plan to fulfil these statutory duties is a two-year plan prepared adopted in 2017. That includes the proposal to change health care provision at the Centre but has not been consulted upon. Fifth, in making the Decision CCG made a number of fundamental errors, the most serious of which was to use a tool called the Manchester Triage Tool (MTT) to conclude that 88% of patients seen at the Centre could have been routinely dealt with by their GPs. There is common ground in the medical evidence filed in these proceedings that the MTT is a tool to assess the level of urgency of patients attending A&E whose conditions are true accidents or emergencies and excludes patients whose conditions do not fall into that category. Sixth, a conflict of interest was not identified, let alone managed, in making the Decision. The CCG Governing Body has GP members who are already contracted to provide appropriate GP services in Corby. As one of the primary purposes of the proposed Hub is to supplement the health services provided by local GP practices, in effect CCG is cutting acute care services to provide GP services which some of the members of CCG Governing Body are already contractually obliged to meet.[5]Each of these grounds is disputed by CCG. First, it is accepted that for some months before the Decision, CCG intended to consult and made public statements to that effect, but those were made at a time when a number of options, including closure, were being considered. Moreover, some of those statements were qualified by reference to assurance or assessment by NHS England (NHSE). The idea of the Hub re-emerged at a public workshop in December 2017 and the view was taken that the health services to be offered were not significantly different from those already offered at the Centre. CCG has a raft of statutory duties which it must comply with, including a duty to exercise its functions effectively, efficiently and economically. Both NHSE and the Chair of the Overview and Scrutiny Committee (HOSC) of the local authority were content that the proposed consultation was no longer necessary. Even if there were unqualified statements that there would be consultation, there was good reason why this was not done. Second, on the facts there was sufficient involvement with the public, in particular at the public workshop in December 2017 and at the public meeting on 30 January 2108 where Mrs Buckingham amongst others were present and took part in a questions and answer sessions before the Decision was taken. Third, an Equality Impact Assessment (EIA) was carried out by CCG which was adequate in the circumstances.[6]In respect of Lakeside’s additional grounds CCG submit as follows. Fourth, upon a proper interpretation of the statutory provisions as to the commissioning plan, it is not a prerequisite to consult before any decision to reconfigure the provision of health services. Fifth, for an error of fact to vitiate a public law decision the error must be uncontentious and objectively verifiable. Here there was a reasonable body of opinion to support the CCG’s contention that the vast majority of people attending the Centre could have been dealt with routinely by their GPs. Sixth, CCG have a policy to deal with conflicts of interest which are inherent in the system and that policy was complied with in the present case.[7]Before I deal in turn with those issues I shall set out the background. The Centre was set up in 2013 by CCG’s predecessor who contracted with Lakeside for the provision of health services there. When in the following year CCG assumed the responsibility for commissioning such services the contract was assigned to it, which contractual arrangements were due to end in March 2017. These have now been extended to the end of March 2019.[8]The Centre is a purpose-built facility to treat patients with an urgent and necessary need for health care and accordingly offers services not provided in primary health care, including x-ray, ultrasound, resuscitation facilities and observation bays. Its facilities are open 7 days a week and are available on a walk-in basis to all patients. It is staffed by GPs and nurses experienced in emergency care, who carry out triage there.[9]Unsurprisingly it has proved very popular with use of the Centre increasing each year so that currently there are about 70,000 attendances. Some of these are made by people who attend many times. This is against a background where some patients experience difficulty in making appointments with their GPs, due to a failure of recruitment to keep up with the growing population of Corby.[10]In the early part of 2017 CCG began to engage with the public and stakeholders to test views about aspects of local health care services, including primary care services. It engaged consultants called Arch Communications (UK) limited (Arch) to assist with this engagement. The initial phase, known as the pre-engagement phase, included the development of a community database, a survey of about 700 people and workshops with patients, public and community groups. Findings from this engagement were reported to the CCG Governing Body in June 2017, with key themes including service quality and ease of access.[11]This was disrupted by, among other events, a legal dispute between CCG and Lakeside regarding the provision of services at the Centre which was eventually determined. At a public meeting of the CCG Governing Body on 29 August 2017, two documents were considered. One was an Urgent Care Centre Review and the other was a Patient Public and Stakeholder Engagement and Consultation Framework (the Framework). The latter proposed a more intense engagement with all key stakeholders about the challenges faced by CCG in relation to primary and urgent care services. There then followed the following sentences:
“All stakeholder input gathered during this period will be used to inform the shaping of options to be put out to public consultation. November to January Subject to assurance process, public consultation about potential changes in care services will be launched on 1 November. It will run for 13 weeks (three months), to 31 January 2018. Building on the earlier period of engagement, it will include: A consultation document outlining how we got to where we are. It will provide information to help the public understand the process and options, and an outline of the options themselves. People will be asked to indicate which option they prefer and why.”

November to January

[12]The CCG Governing Body adopted the Framework at the meeting. It envisaged a second pre-consultation phase from September to October and then the public consultation as set out above. At this stage, closure of the Centre was still an option. Just under 40 engagement events were held at various venues. In October two workshops were organised attended by 5 and 19 people respectively. In the former, there was unanimous support for change, and recognition for improved need for ease of navigation. In the latter there was strong support for the Centre, but recognition that it was misused. The CCG website was updated to include the case for change, the public hand-outs, and dates and venues where the public could engage with CCG.[13]In October and November, CCG circulated newsletters. In the former, reference was made to the resumption of engagement activity, which it was said would continue in the run up to public consultation about healthcare services in Corby, which was expected to start in the coming months. In the November newsletter, it was said that the consultation would start in early 2018. An update was given on the key emerging themes from the pre-consultation engagement. These included: difficulty for some in accessing primary health care; strong support for the Centre, but most were using it as a back-up primary care service. These themes emerged from a report by Arch to CCG, one of the key conclusions being that the Centre was “…popular, both for its ease of access and quality of service. Any change to it has the potential to be seen as a loss to Corby.”[14]In the November newsletter, notice was also given of a public workshop to be held the following month, in the following terms:
“Prior to going to consultation, the CCG is planning to run a further workshop for the public to look at the insights it has gained from them, alongside the financial, safety and clinical evidence, to ask them to help further shape the options.”
[15]Also in December, the East Midlands Clinical Senate (the Senate) reported to CCG on options to go out to consultation. The Senate is an independent body whose members include consultants, GPs, nurses and patient representatives. CCG had originally asked the Senate for a review of the options in October. Two options were put forward both of which involved a triage navigator system through the NHS 111 telephone facility. The Senate had concerns about that aspect, as that was not then the norm for in-hours access to GPs. The Senate accordingly then recommended consultation on a single model but also recommended that such consultation should not take place until the patient navigation system and inequality issues were addressed.[16]After teleconferences, on 4 December 2017 the Senate accepted CCG‘s clarification that the patient navigation system would include the training of clinical and non-clinical staff and that additional analysis of service use at the Centre showed that the activity was largely core primary care. The Senate made a number of further recommendations, including that CCG consider removing the walk-in facility, that patients would be seen in their usual GP practice or at the Hub, and it should be clarified what would happen at 6.30pm when most GP practices close for the day. There was also a recommendation however that CCG should demonstrate that there would not be a disproportionate impact on Corby’s most deprived communities by withdrawing the facility at the Centre. The Senate, in its updated report after the teleconferences, agreed that CCG “is now ready to go out to consultation, as the case for change is understood.”[17]The final event in the pre-consultation phase was a public workshop held on 14 December 2018 attended by 13 people including 3 representatives of CCG and Arch. Shortly beforehand, CCG issue a press release giving details of the workshop and which continued:
“This will be the last chance for people in Corby to help shape the proposed changes to healthcare services before the consultation in 2018.”
The chair of CCG Governing Body was then quoted as saying:
“We will be sharing our initial findings from this work at this event, as well as providing the latest information on the financial and clinical challenges we face. We will then ask them to work with us to develop the proposals that we will then go to public consultation with in 2018.”
[18]Slides were presented at the workshop, and one dealt with next steps as follows:
“Completion of proposals for consultation Assessment by NHS England 2018: 3-month public consultation Analysis and CCG decision”
Assessment by NHS England Analysis and CCG decision”

Assessment by NHS England

[19]CCG analysed the information obtained from the pre-consultation engagement and concluded that there was no need to close the Centre. It devised a single option, termed a same day access hub, which was one of the options considered as early as February 2017. Caron Williams is the Director of Commissioning Strategy at CCG and a member of its Governing Body. In her witness statement she refers to the options considered at that stage and says this:
“It was not the only option discussed but it was agreed to be the CCG’s preferred clinical model at that stage. However, critically, none of those options explored or considered the possibility of a triage arrangement before the patient accessed the system. The triage and navigating arrangement is something which was only arrived at following the engagement carried out.”
[20]On 22 December 2017 the CCG Governing Body adopted an outline business case for that single option, which largely followed the recommendations of the Senate. In particular, the walk-in element at the Centre was to be removed and instead all patients would be triaged and navigated to the most appropriate clinical service by trained navigators. Those patients who needed a same day appointment would be directly booked into one, but patients with certain conditions would be better managed in primary care.[21]CCG still intended to consult on this option at this stage and so on 24 December 2017 submitted to NHSE the outline business case and an outline consultation plan, with a request for NHSE to approve this plan and to agree upon consultation so this could be put to the next CCG Governing Body meeting scheduled for 30 January 2018. It also submitted the EIA. However, the requested approval and agreement was not forthcoming.[22]The crucial decision-making process which then ensued until the Decision is set out in the witness statements of Caron Williams and of Carole Dehghani, who is the Chief Executive and Accountable Officer of CCG.[23]There followed an email exchange between NHSE and CCG. NHSE asked for further information including a comparison of what changes were proposed at the centre beyond the means of access. It was also indicated that Nigel Littlewood, Regional Head of Strategy and Planning, NHSE, had raised queries as to whether consultation was required. Caron Williams sent the information in an email on 8 January 2018 in which she also said: “The removal of people who should never have been in the service is not consultable and is just part of our public quality and value duties as a CCG. As such the only change is access route and triage point to support the public to make safe sections of support. We have taken legal advice on whether what we are proposing is lawful under 14Z2 but almost more importantly lines up with what we have said we will do as such is OK [there then follows redacted references to legal advice]. The scale of the change has now been managed back to a place where discussing next steps would be really helpful there has been a lot of hard work to get this to a position – your advice and guidance is sought at this stage.[24]The reply came on the same day from the Locality Director, Central Midlands, Roz Lindridge. She said that she had discussed the matter with Nigel Littlewood and Graeme Jones, Regional Director of Operations and Delivery (Midland and East) NHSE. She then said:
“I recognise the changing conversations and context as outlined…; however, in essence, if the CCG is planning to consult, then the NHSE Assurance guidance (and therefore panel process) applies. As we discussed, there is a useful potential conversation with HOSC re consultation vs detailed engagement plan around the proposed changes.”
[25]The guidance referred to is statutory guidance issued by NHSE in October 2015 entitled “Planning, assurance and delivering change for patients.” That provides that there must be clear and early confidence that a proposal for service change satisfies governmental tests including strong public and patient engagement. An external assurance process by NHSE is set out to give confidence to patients, staff and the public that proposals are well thought through, have taken on board their views and will deliver real benefits.[26]In relation to HOSC, the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013 require NHS bodies to consult with local authorities on any proposal for a substantial variation or development of service in the locality.[27]By letter dated 9 January 2018 Graeme Jones wrote to Carole Dehghani which included the following:
“While we recognise the amount of work that has been undertaken and the progress made, having reviewed the documentation, the Panel agrees it is not sufficiently robust to base a successful Panel meeting on the 11th as planned. Therefore I am standing down the Panel at this stage in order to give you time to strengthen the business case and to enable a successful Panel meeting in the future. We are also aware that you have taken legal advice as whether you need to consult on these changes now that the model has been further refined and therefore whether you need to move through the NHS England assurance process”
[28]Key lines of enquiry were enclosed to help with improving the business case and it was indicated that when a redrafted business case and updated consultation document had been considered, “we can agree when we should reconvene a Panel.”[29]By email on 22 January Caron Williams sought the “initial” views of the Chair of HOSC. She set out a summary of the background and concluded by saying that CCG felt that they had and would continue to discharge its statutory duties and asked whether he concurred. It was stated that the timeline was challenging in that papers for the CCG Governing Body meeting would have to be published on the next day. The background included the following passages:
“The CCG are proposing for your consideration, that the change outlined in the attached diagram is not a substantial variation. It is worth noting the confidence of the CCG in asking you to offer your views in this area after testing our thinking with NHSE, our legal team and external clinical support from the East Midlands Clinical Senate. …The [Senate] recommended that [CCG] engage on a single model of care, ensuring that the phased journey to this model was clearly articulated to the pubic during any further engagement. [CCG] intends to follow this advice.”
[30]The Chair responded by email the next day as follows:
“Having read through this and attending a briefing by the CCG I would suggest a extended conversation with the public of Corby on the suggested changes was enough. There has already been a long and in depth public consultation with many partners and considerable numbers of the public and I believe many of the publics views have been listened to and took on board.”
[31]On 30 January an agenda was published for an extraordinary meeting in public of the CCG Governing Body, set for 6pm later that day. The agenda allowed for questions from members of the public which had been submitted in advance restricted to 3 minutes per person which would be responded to verbally. The Governing Body would then be asked to approve two papers, an Engagement Plan and “Resetting Corby Healthcare-Local Urgent Care Model.”[32]The executive summary in relation to the Engagement Plan read:
“There has been significant public input into the CCG’s plans for service change. A three-stage process has reached people face to face and online in unprecedented numbers. This process has run over a period of 11 months. This engagement exercise has directly influenced the plans of NHS Corby CCG and led to a service solution being developed. The service developed retains the elements that the local population have said are really important to them. There is a change in the service plan that requires continued engagement with the public for finalising the development for the proposal -Same Day Access Hub. This change does not constitute a significant material change in the model of care. As a result of this therefore we believe is no requirement for formal consultation about the plans which we have tested with colleagues. The CCG will continue with its commitment to engagement by involving people in shaping how the service will be accessed. This will build on existing work and feed directly into the contract specification. There is a plan in place to deliver this activity in the next couple of months.”
[33]The executive summary in relation to the Urgent Care Model read:
“The work undertaken to review the clinical model for Urgent and Emergency Care -specifically within Primary Care has confirmed that the CCG as the commissioner of services must introduce a delivery model which reflects clinical need. That model requires a mechanism for navigated access to ensure that patients are directed to the correct point of care first time to ensure best clinical outcomes and minimise delays in receiving appropriate care. All of these changes need to be refined through engagement and scrutiny and then safely procured.”
[34]At the outset of the meeting, the Chair confirmed that a response would be given to questions posed in advance from members of the public but there would be no opportunity for a response from the questioner as it was a meeting in public rather than a public meeting. In response to a question from the Group as to why CCG was not honouring its promise to consult, it was stated that the CCG had a focused plan which had been directly and substantially influenced by public opinion and which did not significantly materially change the model of care so there was no need for formal consultation “and NHS England agrees.” On the Engagement Plan, again a point was raised that the public may feel misled on consultation. Matt Youdale, a director of Arch said that he understood why people might feel misled but relied on the reasons previously given.[35]Both the documents were approved. On the 6 March 2018 CCG presented its case at a full meeting of HOSC, which confirmed the view that rather than statutory consultation, CCG should continue with public engagement, with the focus being on shaping proposals for means of access at the front door. This was confirmed in these terms by Carole Dehghani in a letter dated 9 March 2018 to NHSE. She concluded:
“Therefore, we no longer require an assurance panel and, instead, will continue to work NHS England and our system partners to ensure successful implementation of our proposals.”
[36]Such engagement continues, and no issues about that process were canvassed before me. Rather, I must focus on whether the Decision is unlawful on any of the grounds summarised above.[37]The principles relating to legitimate expectation were not in dispute before me and are drawn largely from the judgment of Laws LJ in R (Niazi) v Secretary of State [2008] EWCA Civ 755, in which he reviewed the leading cases on this well-known public law headline, as he put it. They may be summarised for present purposes as follows with references to the relevant paragraphs in the judgment: i) Legitimate expectation broadly encompasses two kinds; procedural and substantive [27]. ii) An expectation of either kind may (not must) arise where the decision maker changes or proposes to change an existing policy or practice where to do so would be unfair or an abuse of power [28]. iii) The court is generally the first, not the last, judge of what is unfair or an abuse of power and these “march together” [28]. iv) Those ills are expressed in general terms and what is or is not fair will depend upon the circumstances of the case [28]. v) The paradigm case arises where a public authority has provided an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation before it changes an existing substantive policy [29]. vi) In the paradigm case, the court will not allow the decision maker to effect the proposed change without notice or consultation, unless the want of notice or consultation is justified by an overriding legal duty owed by the decision maker, or other countervailing public interest such as the imperative of national security [30]. vii) In such a procedural case the unfairness or abuse of power which the court will check is not merely to do with how harshly the decision bears upon any individual but arises because good administration generally requires that where a public authority has given a plain assurance, it should be held to it. It is the objective standard of public decision making on which the courts insist [30].[38]The first question is whether unequivocal or plain assurances were given in this case that consultation would be held. In my judgment the whole of the engagement process ending with the workshop in December 2017 was put on the basis that that process was a “pre-consultation” exercise which would shape options to put out for public consultation.[39]The only qualification which Ms Morris QC for CCG was able to point to in submitting that there was no unequivocal assurance, was the reference in the Framework to consultation being subject to assurance process and the reference in the slides at the December workshop to assessment by NHSE preceding the consultation process. She accepted that the reference to assurance process was a term of art. It is clear in my judgment that the purpose of that process was to assure the public that proposals satisfied governmental tests including strong public engagement. If not, as Ms Sackman for Mrs Buckingham submitted, then the proposal would be unlikely to proceed to consultation.[40]In my judgment, the reference in the Framework means nothing more than this. Moreover, the setting out of the next steps in the workshop slides cannot sensibly be read as indicating that CCG might decide not to hold a consultation exercise. It is noteworthy that in the responses to public questions on consultation at the meeting of 30 January 2018, the suggestion that CCG was not honouring a promise to consult was not disputed. Rather it was accepted that the public may have been misled and reasons were given for the change of mind.[41]In my judgment the assurances given by CCG to the public, as summarised above, that consultation would follow the pre-consultation engagement so as to give the public a say on the proposals shaped by the engagement exercise were plain and unequivocal.[42]The next question is whether the failure to consult was justified by an overriding legal duty owed by CCG or some other countervailing public interest such as national security. It can readily be accepted that the reasons given at the 30 January meeting, that the CCG had a focused plan influenced by public opinion which did not substantially materially alter the model of care, might justify a very much more simplified consultation exercise then that envisaged when there were a number of potential options including the closure of the Centre.[43]It is a separate question as to whether those reasons justify the lack of any consultation on the proposal at all. In my judgment they do not, either singularly or cumulatively. The fact that there was only one proposal does not amount to such justification. The Senate recommended that only one option be consulted upon. Nor does the fact that the proposal had been shaped by public engagement. The purpose of that exercise was expressly to shape proposals on which the public would be consulted. The fact that CCG considered that the model of care would not be substantially materially changed under the proposal did not justify the lack of consultation either. The Arch reports to CCG, including the final report, concerning key themes which emerged from the pre-consultation engagement made clear that it was not only the quality of service which made the Centre popular but ease of access, and that anychange to it had the potential to be seen as a loss to Corby.[44]Ms Morris, whilst not accepting that there needed to be shown a change of circumstance to justify a failure to consult, relied also upon the views taken by NHSE and HOSC regarding consultation as such justification. The former could have directed CCG under section 14Z21 of the 2006 Act to discharge its functions in such manner as may be specified, including a direction to consult on the proposal. It did not do so. In my judgment, these views do not amount to the sort of overriding duty or public interest contemplated in the authorities as summarised in Niazi.[45]Although the Regional Head of Strategy NHSE queried the need for consultation when the one option proposal was sent in December 2017, it is clear that the reason the proposal was not put to the NHSE Assurance Panel was that the business case needed to be more robust and the consultation document needed updating. NHSE noted that CCG had taken legal advice as to whether there was a need to consult, but also indicated a willingness to reconvene a panel when CCG had considered what needed to be done in respect of the business case and consultation document.[46]In respect of HOSC, the request for its view was made the day before documentation had to be published for the CCG Governing Body meeting and only the Chair was consulted at that stage. His view that there had been a long and in depth public consultation was in my judgment clearly not justified on the facts as CCG knew them to be. There had been no consultation on any proposal. What there had been was public engagement to shape the proposals on which to consult.[47]Finally, Ms Morris relied upon other statutory duties of CCG including the duty under section 14Q of the 2006 Act to exercise its functions “effectively, efficiently and economically.” This is not a reason which CCG relied upon in justifying its change of mind on consultation at the 30 January 2018 meeting. It was known by then that the contractual arrangements in respect of the Centre will run until the end of March 2019. The Engagement Plan adopted at that meeting provided for engagement on the detail of the proposal until April 2018. In my judgment a period of consultation as to whether to adopt the proposal could have been accommodated without jeopardising CCG’s other duties.[48]In my judgment there was no good reason for not fulfilling the legitimate expectation of consultation which the CCG had raised. In fairness to Caron Williams, she recognised that doing “what we have said we will do” was as important if not more so than complying with the statutory duty under section 14Z2 of the 2006 Act and CCG sought legal advice on both these points. However, that fact does not alter the conclusion to which I have come on legitimate expectation.[49]I turn now to the duty under that section. Subsection (2) provides so far as material:
“The clinical commissioning group must make arrangements to secure that individuals to whom services are being or may be provided are involved (whether by being consulted or provided with information or in other ways)- … (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.”
[50]In my judgment, the implementation of the proposal by the Decision clearly will have an impact on the manner in which services at the Centre are delivered to the individuals accessing the Centre. It is clear also that there was high degree of involvement with such individuals in the development of the proposal, and the contrary was not argued.[51]Rather, Ms Sackman submitted that there was no involvement of such individual in the consideration of the proposal. Her primary submission was that consultation was the appropriate form of consultation. Given that there was one proposal which had emerged from the engagement process which did not involve closure I am not persuaded that consultation was necessary to comply with the duty.[52]Nevertheless, there must be involvement in the consideration of the proposal. Ms Morris relied on the December 2017 workshop and the 30 January 2018 meeting. In my judgment the former did not involve consideration of the proposal. The stated purpose of the workshop was to develop proposals on which to consult. As for the meeting, this was a meeting in public rather than a public meeting. The limited opportunity to put questions (rather to provide information or to give views) and the absence of any opportunity to respond to the response did not, in my judgment, amount to the involvement contemplated by the subsection. It follows from that conclusion that CCG were in breach of its duty thereunder.[53]Section 149(1) of the 2010 Act contains what is known as termed the public-sector equality duty which requires a pubic authority, in the exercise of its functions, to have due regard to the need to:
“(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited 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.”
[54]Subsection (7) sets out the protected characteristics, which include age, and disability[55]The principles were not in dispute before me and were summarised by McCombe LJ in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, which summary was approved by the Supreme Court in R (Hotak) v London Borough of Southwark [2015] UKSC 30). In the present case the following principles are particularly material: a) Such a duty is not a duty to achieve a result but to have due regard to the need to achieve the goals set out in the section; b) However, a vague awareness of the duty is not enough. The decision maker must have a focused awareness of each element of the duty and the potential impact on the relevant group; c) If the relevant material is not available, there is a duty to obtain it, often through consultation.[56]Section 14T of the 2006 Act imposes on CCG in the exercise of its functions a duty to have regard to the need to- a) Reduce inequalities with respect to their ability to access health services, and b) Reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services.[57]The most up to date EIA before the CCG Governing Body when it made the Decision was dated December 2017. Accordingly, it was prepared at a time when consultation was still envisaged.[58]The public-sector equality duty was set out and each of the protected characteristics dealt with in turn by considering relevant population statistics, Centre activity and outcome.[59]Attendance at the Centre was broken down by age group. It was stated that the proposed new model would deliver the same activity level to the current population attending the Centre and extra primary care capacity would be added. No negative impact was identified.[60]Data in relation to adults and children with disabilities in the locality were set out. In terms of Centre activity, reference was made to self- care programmes, meeting the needs of people with learning disabilities with specialised services when needed, disabled access and transport. Again, no negative impact was identified in the proposed new model of care.[61]Indeed, that was the conclusion in respect of each of the protected characteristics. The only risk identified was that barriers may be perceived by patients for Gypsy Roma and Traveller Communities and other BME communities. It was stated that further engagement would be carried out with communities to ensure that they are fully aware of the proposed changes and that they have “the opportunity to express their views.” Although the EIA is a detailed document it also stated:
“This EIA and the engagement that is underway informs NHS Corby of the different needs of each equality groups so that gaps in the CCG’s knowledge can be acted upon as part of the consultation process.”
[62]In the outline business case put to NHSE, the CCG acknowledged that there was a need to assess the full impact of the proposed changes on such communities and said that it would ensure this took place in the consultation process so that views on proposed changes “can be appropriately captured.”[63]No consultation was carried out, and no further engagement was undertaken before the Decision. There was no further discussion on these issues at the 30 January 2018 meeting.[64]Ms Sackman submitted that the EIA lacks analysis of impacts of the withdrawal of the walk-in facilities on those with learning difficulties, mental health problems, or difficulties with the English language. She further submitted that because of the failure to consult or carry out further engagement before the decision in question, there remained acknowledged gaps in the knowledge of CCG. There was no reference to the duty under section 14T of the 2006 Act, which is not limited to protected characteristics.[65]In my judgment there is force in each of these criticisms. The evidence does not establish that in making the Decision there was a focussed awareness by the CCG Governing Body of the need to advance equality of access to health care services for those with protected characteristics, or to reduce inequalities in such access. Although the public-sector equality duty was set out, the duty under section 14T of the 2006 Act, which is not related to protected characteristics, was not. Moreover, the duty to obtain further relevant information, as summarised above was not complied with. It is likely that such information could have been obtained as part of the consultation.[66]Ms Morris pointed out that at least some of this information has been obtained since the decision as part of the engagement process to refine the detail of the proposal. In my judgment, this should have been obtained and taken into account by the CCG Governing Body in deciding whether or not to approve the plans on 30 January 2018. These failures mean that the duties under the Acts of 2006 and 2010 were not complied with.[67]Mr Lock QC made very detailed written submissions in support of Lakeside’s additional grounds, which he expanded upon succinctly and clearly in oral submissions.[68]In respect of the commissioning plan regime under the 2006 Act, he submitted that what is required is the preparation of a plan before the start of each financial year after public consultation on the plan. In other words, there is an accountability framework on an annual cycle. The two-year plan adopted in 2017 does not comply with this regime. Plans can be changed, but any proposed change which is significant must be consulted upon beforehand. The proposal which lead to the Decision was such a proposed change, and the requirements of the regime is another reason why there should have been consultation.[69]Ms Morris did not accept that position. She submitted that as a matter of statutory interpretation the regime does not require consultation before any decision to change the plan.[70]It is important to bear in mind that this challenge is not made to the adoption of the plan as such, but as an additional reason for holding the consultation should have taken place before the Decision and should have informed it. Given that I have found that there should have been such consultation on the basis of legitimate expectation, then subject to the issue of relief, which I deal with below, it does not appear to me necessary or desirable that I go on to resolve interesting questions of statutory interpretation in relation to the regime on commission plans when it is the Decision only which is under challenge. With due deference to Mr Lock’s industry and skill, therefore, I do not do so.[71]Mr Lock acknowledged that in order to show that the Decision was vitiated by material errors of fact, the fact must be uncontentious and objectively verifiable (see E v Secretary of State for the Home Department [2004] QB 1044). It is not in dispute that the MTT is not the appropriate tool to justify the CCG proceeding on the basis (for example, in seeking the views of the Senate and NHSE and in information before the CCG Governing Body at the meeting on 30 January 2018) that 88% of attendances at the Centre should have been dealt with through the primary health care system.[72]In these proceedings there was medical evidence from Lakeside and CCG which give differing opinions on other indications in the engagement process that a high percentage of attendances at the Centre should have been dealt with in the primary health care system. CCG relies upon the evidence of Dr Spencer a GP who has not worked at the Centre or analysed data from it, but merely says that his “sense was” that the Centre was being used as a means of accessing same day care without the need for an appointment, rather than for treating urgent cases, in other words providing a primary care facility.[73]As Mr Lock submitted, that is at best a thin basis for CCG maintaining that there is a reasonable body of medical opinion which supports its position.[74]Ms Morris pointed to other information which was, for example, before the Senate and NHSE who would have been aware of the purpose of the MTT, which justified the CCG stance. To a large extent this is a matter of clinical judgment.[75]Ultimately, I am not persuaded that there was such an uncontentious and objectively verifiable error of fact in this regard which renders the Decision unlawful on public law grounds. However, I shall say more about this when dealing with relief.[76]The next error of fact which Lakeside relies upon is in the report of CCG’s officers to its Governing Body for the 30 January 2018 meeting that the Hub would not constitute a significant material change in the model of care. Mr Lock points to the proposed removal of the walk-in facility, of triage by doctors and nurses and of observation and resuscitation facilities.[77]It is important in my judgment to emphasise that CCG was expressly referring to the model of care and not to other aspects. Again, Ms Morris submitted that CCG was entitled to come to that conclusion and NHSE did not disagree or direct consultation which would have been appropriate if there would be a significant change in the model of care. Again, I am not persuaded that there was an uncontentious and objectively verifiable error of fact in this regard.[78]The final error relied upon is that the CCG Governing Body was misled by the officers’ claim that there had been a comprehensive programme of engagement on the proposal when there had not. Ms Morris submitted that again that is a matter of judgment. I do not accept that submission. Whilst there may be some debate about what amounts to “comprehensive,” in my judgment it is plain that there was no engagement at all on the proposal prior to the Decision. The engagement had helped to shape the proposal but that is different to engaging on the proposal once shaped. I accept that this was an error of fact which is likely to have played a material part in the decision making.[79]Ms Morris did not dispute that the conflict identified by Mr Lock existed and submitted that such conflicts are inherent in the system. Rather, she submitted that the conflict was dealt with appropriately. At the outset of the meeting of 30 January 2018 the member for governance noted the conflict of interest of all GPs and stated that they would not be involved in procurement decisions and would not participate in conversations where there was a direct conflict which could give them advantage in financial terms. 4 out of the 5 GPs present declared an interest including their practices.[80]Although the declarations did not identify with precision the conflict relied upon by Mr Lock, the indication that they would not be involved in conversations where there was a direct conflict which could give them advantage in any commercial terms was, in my judgment, sufficient to deal with such conflict.[81]Ms Morris submitted that even if there are grounds for finding that the Decision was unlawfully arrived at, as I have decided they are, I should nevertheless in my discretion refuse to grant relief, essentially upon three grounds.[82]The first is that the claim was not brought promptly and was issued close to the three-month deadline for issuing such claims. Ms Sackman submitted that the pre-action letter was sent on 26 February 2018 and received no substantive response until 12 March 2018. No issue of delay or urgency was then raised. A copy of the EIA was first requested on 26 February but was only supplied on 12 April 2018 after a reminder. There was a great deal of documentation to consider and the pre-action process clarified and narrowed the issues. I accept those submissions. In my judgment there was no undue delay in issuing the claim.[83]The second is that requiring consultation now could mean that any decision will not be implemented in time to replace the current arrangements when they expire at the end of March 2019, and this would have adverse financial consequence for the public purse. The evidence produced by CCG suggests that it could be the case that the whole process will take more than the time available before then. In my judgment that risk should not be discounted. On the evidence, however it is low. The proposal was formulated in a matter of weeks after the December 2017 workshop. Although the outline business case and consultation plan were rejected by NHSE, advice was given as to what was needed. The engagement process which followed the Decision is likely further to have refined the issues and developed the details of the proposal. Given that there is only one proposal on which to consult which does not involve closure, in my judgment it is likely that this can be achieved in time, and the risk that it may not is not disproportionate to the public interest in good administration.[84]The third reason which Ms Morris advances for not granting relief is that consultation is unlikely to make any material or significant difference. That is a possibility, but in view in particular of the proposed removal of the walk-in facility and of face to face triage by doctors and nurses, it cannot in my judgment be said to be a likelihood.[85]Accordingly, the Decision must be quashed. There should be an appropriate consultation exercise on the proposal, and an EIA which focuses attention on the requirement that due regard must be had to the need to promote equality in respect of the protected characteristics and to the need to reduce inequalities as to the access to health care. It would be sensible to clarify for the CCG Governing Body when re-considering its decision what is agreed about the MTT and what is the case on the Centre being used predominantly as for primary health care.[86]Counsel helpfully indicated that any consequential matters needing determination after judgment can be dealt with on the basis of written submissions, which I invite to be filed within 14 days of hand down.[87]I record my gratitude to all counsel for their respective focussed and helpful submissions, both written and oral.