Win for NHS England on the judicial review of the Accountable Care Organisation contract

The High Court has found in favour of NHS England in the judicial review brought by a campaign group, 999 Call for the NHS, who challenged the lawfulness of the payment mechanism in the draft Accountable Care Organisation (ACO) contract.

The campaign group’s legal team argued that it was unlawful for a contract between a clinical commissioning group and an ACO to include the Whole Population Annual Payment (WPAP) as a payment mechanism – the WPAP is linked to the number of people living in the area in which the ACO operates.

The group also complained that the WPAP “imposes budgetary control at the expense of not being "demand led": the ACO does not know how many hip replacements it will have to fund from its fixed budget." This, the campaign group argued, “encourages the very price competition which the 2012 Act was supposed to banish and which, politicians have said publicly, does not work.”

In finding for NHS England , the judge said: “That is a political objection and is not a matter for the court. There are no doubt advantages and disadvantages to every payment system. The WPAP can be judged in the political arena but this court does not find anything unlawful in its use as the law stands.” You can read the decision here.

The campaign group has said it will appeal the decision, which they believe is “seriously flawed”.

The decision will be welcome news for our commercial health team who have been working with Dudley CCG on their plans to be the first to implement the ACO contract. Dudley was set to award a contract for April this year, but plans were postponed pending the judicial reviews (this being one of two hearings) and NHS England’s consultation.  

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