Court of Appeal considers duty of consultation on public bodies

In R. (on the application of MP) v Secretary of State for Health and Social Care [2020] EWCA Civ 1634, the Court of Appeal clarified the common law duty of consultation upon public bodies based on fairness, and the test for when a legitimate expectation will be established.

Key points

• The common law duty of fairness upon public bodies is not in itself enough to found a duty to consult.
• When a public body undertakes a consultation, it has a duty to carry out that consultation properly, but that duty is confined to the proposals included in the consultation and does not necessarily extend to consultation on other proposals.
• The legal test for establishing a procedural or substantive legitimate expectation requires:

1. 1. an express promise, representation or assurance which is "clear, unambiguous and devoid of relevant qualification" ; or
   2. a practice tantamount to such a promise.

Background

In 2015, the Appellant (an individual referred to as “MP”) was diagnosed with a form of blood cancer and began receiving NHS chemotherapy treatment. In the same year, MP was refused indefinite leave to remain in the UK. MP’s immigration status was unclear due to a pending appeal to the Upper Tribunal.

As a result of MP’s pending immigration status, MP was classed as an “overseas visitor” for the purposes of his next stage of treatment and under the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017 he was required to pay for his treatment upfront.

The 2017 Regulations introduced three changes to the rules governing NHS charges for certain treatment for those not ordinarily resident in the UK:

• 1: Charges to be paid in advance for non-urgent treatment;
• 2: NHS trusts to be required to record the fact that a person was an overseas visitor liable to be charged; and
• 3: Liability to pay charges to be extended to cover certain NHS-funded services provided in the community.

Prior to making the 2017 Regulations, the Government had in 2015 undertaken a public consultation into proposal 3 above but did not include proposals 1 and 2 above in the consultation.

MP commenced judicial review proceedings, alleging that the advance payment and recording of information provisions in the 2017 Regulations (1 and 2 above) should be quashed because the Secretary of State had failed to undertake due consultation before promulgating them. He was unsuccessful in the High Court. On appeal the Court of Appeal considered two grounds:

1. Did the fact that the Secretary of State elected to undertake the 2015 consultation mean that he had a duty to consult on proposals 1 and 2 even if he would not otherwise have been obliged to do so?
2. Whether the Secretary of State was under a duty to consult on the advance payment and recording of information requirements because there was a legitimate expectation of consultation.

Judgment

The Court of Appeal dismissed the appeal on both grounds.

Duty to consult

The Court held that, having chosen to undertake a consultation on a set of proposals in the 2015 Consultation created a duty upon the Secretary of State to consult on all proposals contained within it “properly” (R. v North and East Devon HA Ex p. Coughlan [2001] QB 213 applied). However that duty to consult did not extend to the disclosure or consultation of all other proposals it might have considered in the same field. Proposals 1 and 2 were held to be “discrete, self-contained issues” which were not linked to the proposals consulted upon within the 2015 consultation.

Legitimate expectation

The doctrine of legitimate expectation has two aspects: procedural as well as substantive. Procedural legitimate expectation refers to the expectation of an individual that they have a right to a certain procedure, such as the right to a hearing or a consultation, in advance of a decision being taken by a public body. Substantive legitimate expectation refers to a scenario where an individual or entity seeks a substantive benefit from a public body.

The Court of Appeal held that cases concerned with substantive legitimate expectation were relevant when considering procedural legitimate expectation and that the “fundamental ingredients” of procedural and substantive legitimate expectation were the same, applying R. (on the application of Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213. The Court clarified these fundamental ingredients by setting out the legal test for when a legitimate expectation (substantive or procedural) would be established in relation to a practice undertaken by a public body, namely that there must be:

1. an express promise, representation or assurance which is "clear, unambiguous and devoid of relevant qualification"; or
2. a practice tantamount to such a promise.

The Court concluded that in this case no legitimate expectation of consultation had been established, in circumstances where the Secretary of State had not previously consulted on all amendments to the regime governing NHS charges for those not ordinarily resident in the UK, and that when there was consultation not all the changes made had been consulted upon.

Commentary

The common law duty of fairness on public bodies is not enough to found a duty to consult on its own. Careful consideration is needed of all of the circumstances in a case to determine whether such a duty arises. The Court of Appeal noted with approval the identification by the Divisional Court in R. (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 of the four main circumstances in which a duty to consult may arise. First, where there is a statutory duty to consult. Secondly, where there has been a promise to consult. Thirdly, where there has been an established practice of consultation. And fourthly where, in exceptional cases, a failure to consult would lead to conspicuous unfairness.

The judgment makes clear that a procedural legitimate expectation cannot be established merely by showing a “sufficiently settled and uniform practice” which is not unequivocal. The test for such an expectation is a high bar as it is for a substantive legitimate expectation, namely that of a clear and unambiguous promise or representation.