R (A) v North Central London Integrated Care Board

R (A) v North Central London Integrated Care Board

Introduction This judicial review concerns the provision of continuing healthcare for the Claimant, A, an 11-year-old boy with a severe and rare medical condition, SLC13A5 Citrate Transporter Disorder. The Claimant, through his litigation friend B, challenges decisions made by the North Central London Integrated Care Board (ICB) regarding his care plan. The London Borough of Haringey is an Interested Party due to its involvement in A’s education and social care provision. The court examined three grounds of challenge:

1. The ICB’s failure to provide a lawful healthcare plan.
2. The irrationality of the ICB’s decision to terminate the contract with the previous care provider and appoint a new provider.
3. A claim for restitution due to the family self-funding A’s care at a significant cost.

Arguments of the Claimant The Claimant, represented by Mr Ian Wise KC and Mr Ollie Persey, argued that:

• The ICB had an absolute and non-delegable duty under Section 42(3) of the Children and Families Act 2014 to ensure a lawful healthcare plan was in place, as specified in Section G of A’s Education, Health and Care (EHC) plan.
• No lawful healthcare plan existed following the review process that led to the EHC plan dated 23 November 2023. The last care plan, produced by Enviva (the previous provider), was outdated and did not adequately reflect A’s needs.
• The ICB’s approach of leaving care plan drafting to the provider did not absolve it of the responsibility to ensure a lawful and adequate plan was in place.
• The ICB’s decision to terminate Enviva’s contract and replace them with a new provider, Nursing Direct, was irrational. The Claimant’s family had serious concerns about Nursing Direct’s preparedness and its staff’s knowledge of A’s needs.
• The Claimant’s family was forced to self-fund A’s care at an approximate cost of £10,000 per week due to the ICB’s failures, entitling them to restitution on the grounds of unjust enrichment.

Arguments of the Defendant (ICB) The ICB, represented by Mr David Lawson and Mr Jake Rylatt, countered that:

• The ICB had complied with its duty under Section 42(3) of the 2014 Act by arranging for a healthcare plan to be produced by the registered care provider.
• The June 2023 Enviva care plan met the basic requirements of a healthcare plan, and while outdated, the ICB had taken reasonable steps to request an updated plan from Enviva before terminating its contract.
• The decision to terminate Enviva’s contract was justified due to its inability to provide adequate staffing, reliance on an unregistered staffing provider (Practical Staffing), and concerns regarding governance and safety.
• The ICB acted reasonably in transitioning to a new provider and had ensured continuity of care by subcontracting Practical Staffing’s nurses through Nursing Direct during the transition.
• The claim for restitution lacked legal basis, as the ICB had attempted to provide a care package, but the family had rejected the new provider.

Reasoning of the Court Mr Justice MacDonald ruled as follows:

• Ground 1 (Failure to provide a lawful healthcare plan): The court found that the ICB was in ongoing breach of its duty under Section 42(3) of the 2014 Act. While the ICB could delegate the drafting of the healthcare plan to a provider, it retained ultimate responsibility to ensure a lawful and adequate plan existed. The court noted that the June 2023 Enviva plan was outdated and that repeated requests for an updated plan had not resulted in a satisfactory document. The absence of a current and lawful healthcare plan placed A’s welfare at risk.
• Ground 2 (Irrationality of termination decision): The court rejected this ground. The ICB’s decision to terminate Enviva’s contract was found to be rational and justified. The evidence demonstrated that Enviva had been unable to provide the necessary staff, had failed to update the healthcare plan, and had relied excessively on an unregistered staffing provider, Practical Staffing. The ICB had taken reasonable steps to identify a new provider (Nursing Direct) and had attempted to facilitate a smooth transition.
• Ground 3 (Restitution for unjust enrichment): The court declined to grant restitution. While the family had incurred significant costs due to the transition issues, the ICB had not unjustly enriched itself. The ICB had arranged for a care package, but the family’s decision to reject Nursing Direct contributed to the situation. The court acknowledged the difficulties faced by the family but concluded that restitution was not an appropriate remedy in judicial review proceedings albeit could be in another jurisdiction.

Overall Decision The judicial review succeeded in part. The court found that the ICB had failed to ensure a lawful healthcare plan was in place but upheld the rationality of the ICB’s decision to change providers. The claim for restitution was dismissed. The court directed the ICB to take immediate steps to ensure that a lawful healthcare plan was produced for A and to work collaboratively with the family to restore confidence in the care arrangements.

Conclusion This case underscores the importance of ensuring that healthcare plans for children with complex needs are regularly updated and legally compliant. While the ICB was justified in transitioning to a new provider, it had not adequately discharged its duty to ensure an up-to-date and lawful healthcare plan was in place. The ruling emphasises that ICBs must take active steps to monitor and enforce the provision of adequate care plans by commissioned providers. Hence an Integrated Care Board (ICB) is under an absolute duty to secure the provision detailed in Section G of an EHC Plan. This pertains to any healthcare support that is reasonably required as a consequence of the child or young person’s learning difficulties or disabilities, which, in turn, give rise to their special educational needs.

The full judgement can be found HERE