A recent Administrative Court decision is a useful reminder that judicial review remains a remedy of last resort. Where an effective alternative route is available, such as the NHS complaints process, claimants will be expected to use it before turning to judicial review.
For Integrated Care Boards managing increasingly complex care packages within constrained budgets, this decision is worth noting.
In R (GVH) v Leicester, Leicestershire and Rutland Integrated Care Board (ICB), in which Mills & Reeve acted for the ICB, the court refused an application to judicially review a decision to reduce the funding for a care package. Leicester City Council, which provided the social care support, did not participate.
The claimant, a significantly disabled 17-year-old boy, had his funding reduced from 56 hours a week to 32 hours a week following an assessment and review, and acting through his mother brought the challenge by way of judicial review.
Discussion on alternative remedies
Before considering the substantive grounds of challenge, the court examined whether the claimant should first have used the NHS complaints process to challenge the funding decision.
The ICB argued that its complaints procedure, governed by the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009, provided an effective route for challenging the decision, and that the National Framework for Children and Young People’s Continuing Care expects disputes to be resolved through internal complaints processes.
The claimant argued that the process would not provide an “equivalent efficacious remedy”, would be protracted, and that judicial review offered a swifter route to resolution.
The decision
The court agreed with the ICB’s case and refused the claimant’s application for judicial review, finding that none of the claimant’s grounds were arguable.
Drawing on established case law, it emphasised that judicial review is a “remedy of last resort”. Where an alternative administrative procedure exists, particularly one created by statute, as here, the courts will require the claimant to use that procedure before judicial review is sought.
In conclusion, the court confirmed:
• “…the complaints procedure provides an effective mechanism which would provide redress conveniently and effectively.”
• “…litigation can sometimes unhelpfully hinder effective dialogue between a patient and those caring for the patient.”
• “…the complaints procedure could offer more effective redress than a quashing order.”
Comment
For ICBs facing challenges to funding, eligibility and care package decisions, GVH is reminder that, where an effective statutory complaints process exists, courts will be reluctant to allow claimants to bypass it and proceed directly to judicial review.
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