We continue to advise commissioners on a number of service reconfigurations, focussing on ensuring compliance with their statutory obligation to involve the public, usually by way of consultation. We are often asked When are we out of the woods? on potential court challenges to service redesign. What is the cut off date before which a service user or campaign group can bring a judicial review claim. The short answer is that such claims must be brought promptly and in any event within three months of the decision that is challenged. This limitation period is shorter than for many other types of claim in order that public bodies and others can have some certainty that they can proceed with their plans.
What happens when a claim is brought late? This was recently considered by the High Court in the case of Elway and Cardiff County Council. This was a planning law case but the same principles would apply in the event of a late claim brought to challenge a service reconfiguration.
The judgment contains a useful discussion of delay and extension of time limits to bringing such claims. The Claimant's case essentially related to a development which began in July 2012 but the judicial review claim was not begun until January 2013. The Council argued that the Claimant was guilty of inexcusable delay which ought to preclude her being able to bring her application.
The judge in the present case emphasized that the primary requirement is always one of promptness and permission may be refused for delay even where the claim form is filed prior to the three month deadline. There is no general legislative framework to guide the courts when deciding issues of delay but the judge set out a number of factors which would be taken into account. These include whether the claimant had prior warning of the decision they are seeking to challenge and whether there was any delay between the taking of that decision and its communication to the claimant. He added that there could be good reasons for delay such as time taken to obtain legal aid the importance of the point of law at stake or that the claimant is awaiting the outcome of consultation. It is at the discretion of the Court to decide whether there has been any delay and whether such delay was reasonable given the particular circumstances.
As readers will know the first stage of a JR claim is the permission stage - decided purely on the papers. This is the stage where we would always try to defeat a late claim if it is brought after the deadline. However the judge in this case ruled that if the court is minded to grant permission on the general merits of the claim and it is arguable whether there has been a delay in bringing said claim or whether an extension ought to be given then the delay issue ought to be considered at the full hearing. These comments are not helpful to an NHS body facing a challenge to a service redesign that it needs to get on with.
In short - you're not out of the woods even after the three months is up. Commissioners can help themselves by ensuring that their consultation exercises and final decisions on service reconfigurations are well publicised. But if a court is interested in the merit of a challenge you may find yourself facing a full JR hearing many months after taking a decision on changes to services. This would seem to run counter to the government's desire to limit what it describes as the abuse of the judicial review process. Recent procedural changes in the field of judicial review have yet to reach the healthcare sphere but it may only be a matter of time. We will let you know.