Public Law Case Update ' Q2 2023

• Published date: 09 August 2023
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Trials & Appeals & Compensation
• Law Firm: Gowling WLG
• Author: Mr Kieran Laird, Lara Epsley and Catrin Headland

In this August 2023 edition of our quarterly case update, we offer a straightforward and concise overview of six public law and regulation cases from the second quarter of 2023 which highlight important points of principle and procedure.

Gowling WLG's team of public law and regulation specialists examine the following cases and identify the key points which can be taken from them. In particular, this quarter featured a number of interesting cases on policies, which can be found at the beginning of our list:

• To publish or not to publish a policy? - F v Surrey County Council and R (MXK & Ors) v Secretary of State for the Home Department
• Policies, exceptional cases and previous decisions by others - R (HRH The Duke of Sussex) v Secretary of State for the Home Department
• A reminder that the duty to undertake sufficient inquiry might include a duty to consult - R (PM) v Secretary of State for the Home Department
• The Secretary of State successfully defends his decision to enfranchise military accommodation - R (on the application of Annington Property Ltd) v Secretary of State for Defence
• The Court of Appeal rules there is no implied power for an office holder to revoke a decision and reopen an investigation - R (on the application of Piffs Elm Ltd) v Commission for Local Administration in England
• Welcome clarification on the role of juniors in decision-making - Secretary of State for Levelling Up, Housing and Communities v Smith and London Borough of Hackney

To publish or not to publish a policy?

In F v Surrey County Council, the claimant, who was a recovering alcoholic, challenged the decision of the defendant not to reimburse him for the cost of private medical treatment. The claimant's mother had arranged for him to receive medically assisted alcohol detoxification ('detox') treatment at a private facility, after she was allegedly told that her son could not receive detox treatment on the NHS until he had first undertaken an alcohol reduction programme. The defendant disputed that the claimant's mother was told this.

The claimant's grounds of challenge were that the defendant:

1. operated an inflexible and/or irrational unpublished policy (Ground 1); and
2. breached the claimant's rights under Article 14 ECHR read with Article 8 (Ground 2).

The policy clinicians in Surrey use to assess treatment for alcoholism is 'Surrey and Borders Partnership NHS Foundation Trust's Community Detox Team Operational Policy' dated June 2018 (the Operational Policy). The Operational Policy states that usually a patient would have to undergo an alcohol reduction programme before being eligible for detox treatment, but that the reduction programme could be foregone in exceptional circumstances.

The Operational Policy was not in the public domain and the claimant submitted that this was unlawful following the Supreme Court case of Lumba v Secretary of State for the Home Department. Effectively, the claimant's argument was that in light of Lumba, generally, "if a public authority has a policy relevant to the exercise of its discretion, it has an obligation to publish that policy".

It was not ultimately necessary for Chamberlain J to decide that issue, as the decision to refuse reimbursement did not hinge on what the claimant's mother had been told and, if it did, the claimant had not discharged the burden of proof in that regard. Therefore, the failure to publish the policy had no effect. However, he did comment on the relevance of context when considering whether a policy must be published following Lumba. He noted that Lumba concerned a secret detention policy that was at odds with a published one and was sceptical that the principle regarding publication could be transposed to the "very different" context of a policy for clinicians relating to the assessment of treatments options.

Chamberlain J also held that the Operational Policy was not inflexible or irrational as it did allow patients in exceptional circumstances to avoid the alcohol reduction programme, and this exception had been applied before (although not in the last three years). Therefore, the remainder of Ground 1 and Ground 2 fell away and the claim was dismissed in its entirety.

F can be contrasted with R (MXK & Ors) v Secretary of State for the Home Department which came before Chamberlain J some months later. MXK concerned the Secretary of State's policy to detain and question foreign nationals about NHS debts on their return to the UK.

In that case, Chamberlain J noted the proposition put forward by Lord Dyson in Lumba that, where the executive has a wide power of detention, there should be a clear statement of the circumstances...