Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust

This is a claim for judicial review of the decision of the Defendant, North Staffordshire Primary Care Trust ("the PCT") made on 13 October 2010 whereby it refused a renewed individual funding request ("IFR") by the Claimant, Mr Condliff, for laparoscopic gastric by-pass surgery to be funded by the NHS. Mr Condliff is morbidly obese, with various associated co-morbidities and his health is deteriorating. Accordingly, this claim has been dealt with on an expedited basis and by holding a frolled-up" hearing. The points raised before me are clearly arguable and therefore at the outset of this judgment I grant permission to apply for judicial review.

Mr Condliff is 62 and lives in Stoke on Trent, within the catchment area of the PCT. As a result of congenital problems, he developed diabetes and other health disorders. Following problems with treatment (or the lack of it due to a severe needle phobia), the insulin he should have received over a number of years was not delivered as timeously or as effectively as it might have been. The diabetes and other health problems associated with it worsened. Following a course of insulin delivered in an acceptable manner, the Claimant developed a gross appetite and began to gorge himself. His weight increased and his health problems multiplied. He tried all other relevant non surgical interventions including dietary and lifestyle and drug interventions for his gain in weight but was not successful. He is rendered morbidly obese with a BMI (body mass index) in excess of 40 kg/m2. His include renal impairment, hypertension and obstructive sleep apnoea.

Laparoscopic gastric by-pass surgery ('the Surgery") is a form of bariatric surgery. It is an alternative to open surgery which is too dangerous to be performed on Mr Condliff. It is common ground that it is clinically appropriate for Mr Condliff to seek the Surgery which may reduce his weight and alleviate his other serious symptoms.

The relevant primary policy of the PCT ('the Primary Policy") was to provide the Surgery as a routine operation to all those whose BMI was more than 50, for whom the clinicians say it is necessary and who then consent to it. Mr Condliff was not eligible because his BMI was less than 50. He was however able to make an IFR for the Surgery on the grounds of exceptionality which he did on 2 February 2010 through his GP Dr Linney, supported by various specialists who had been treating him. At a meeting of the PCT on 1 1 March 2010, this was rejected, as notified to him in a letter dated 17 March 2010. Over the next 6 months his condition deteriorated and a request was made to the PCT by Dr Linney in a letter dated 22 September 2010 with enclosures to ask the PCT to reconsider the IFR application. But originally they were sent to the wrong address. Later the letter was forwarded by e-mail to the PCT but without any enclosures. Accordingly, the only material before the PCT was the letter itself. See paragraph 25 of Dr Harvey's witness statement.

In the letter Dr Linney referred to Mr Condliff's various clinical conditions on page I and on page 2 said that she had seen a real deterioration in his physical and mental condition in the three months while she had been away on leave and asked for the earlier decision to be reconsidered. She referred to the fact that he now had to use a wheelchair and apart from medical visits was housebound. He could no longer attend Church, one of his previous interests, nor could he play the guitar due to swelling and pain in the hands. His diabetes had caused problems in the left eye and as he had almost reached the limit for laser therapy and

The PCT did not consider that these factors mentioned merited reconsideration, as it said in the decision letter under challenge dated 13 October 2010. It said that the public health consultant who reviewed the letter felt that there was no new evidence for the panel to consider and that the additional information contained in Dr Linney's letter did not demonstrate exceptionality.

The PCT's IFR policy provides at paragraph 4.1.2:

It then explains that treatment will only be funded for individual patients by the PCT, where it is refused to other patients with similar clinical circumstances, if the patient is able to show that he or she is exceptional. The test for exceptionality is in paragraph 4.2.4:

The IFR policy then provides at paragraph 4.2.5:

The justification for this approach is contained in Appendix 1 to the IFR policy ('the Appendix") as follows:

It is not in dispute that this policy was known to Mr Condliffs medical advisers including Dr Linney, and indeed it is available on the internet.

There is no challenge under judicial review or human rights law to the Primary Policy which excluded en bloc those who sought the Surgery but who had, like Mr Condliff, a BMI of less than 50, although there was such a challenge, originally. Nor is there any challenge to the IFR policy generally including the test for exceptionality.

The only aspect of this policy which is challenged is the Social Factors Exclusion. This is said to contravene Article 8 of the ECHR ("A8"), and so the decision made in conformity

Ground 2 is an allegation that even if the decision was justified under A8, it contained no reasons as to how that conclusion was reached, as required by Article 6 of the ECHR

Ground 3 alleges that the decision of 13 October involved various breaches by the PCT of its own IFR policy.

There is no challenge to the original decision of 17 March 2010 though Mr Condliff says that it is necessary to have regard to it when considering the challenge to the later decision.

This provides as follows:

The Social Factors Exclusion is set out at paragraphs 9 and 10 above. One notes that in the Appendix the term "non-clinical factors" is sometimes used including the heading. Some social factors might have direct clinical implications and if they do it would seem unlikely that they would be ruled out. This view is supported by the examples given in the policy of those social factors which would be ruled out eg social value judgments about smokers, an applicant's contributions to society, the value of keeping an employed person in work, where there would be no possible clinical connection.

This approach is also reflected in the policies adopted by two other PCTs to which I was referred (on the question of proportionality). First, NHS Bedfordshire's IFR Policy states as follows under "Determination of Exceptionality":

I was also referred to the East Lancs. Blackburn with Darwen PCT IFR Policy. Under "Equity" this states that:

Although the two other policies appear to be somewhat more nuanced, I do not see any essential difference between their approach and the Social Factors Exclusion. If the social factors have a clinical significance they will not be "non-clinical factors".

Mr Clayton QC for Mr Condliff questioned whether the statement in the Appendix at [4], "Generally, the NHS does not take into account social factors in deciding what treatment to provide." was really correct. In the absence of clear evidence to the contrary I would be slow to conclude that such a statement in a PCT document was significantly inaccurate. The particular examples given of the NHS's general approach concerned its policy not to deny treatment to smokers or those who engage in dangerous sports. There is no reason to suppose that this is not so. No evidence has been shown to me which suggests that the NHS does take into account purely social factors when allocating treatment.

Mr Clayton did, however, refer me to a document produced by The NHS Confederation which is an independent body for the organisations that make up the NHS. It is not an NHS policy document. The document is called "Priority Setting: managing individual funding requests." It is said that this document shows that there is no general approach in the NHS to exclude social factors when considering what treatment to provide. But what it said, in 2008, was that the PCTs are increasingly adopting policies that only allow clinical considerations and the document itself urged caution against taking a different approach unless what might otherwise be regarded as a social factor, like employment, has clinical implications in that particular case (see page 5). This is similar to the approach taken by the Bedfordshire and East Lancs. PCTs. I do not regard this document as demonstrating that the statement in [4] is wrong.

These two sets of factors are not synonymous. First, some private life factors may have clinical significance in which case they will not be rejected. Second, some social factors do not amount to private life matters. It all depends on what the social factors are. For example factors advanced on behalf of the applicant concerned with employment status or ethnicity may have nothing to do with A8 at all. So to characterise the Social Factors Exclusion as a blanket exclusion of A8 factors is simply wrong in my view.

The only material before the PCT was the letter of 22 September 2010. See paragraph 5 above. In his submissions Mr Clayton concentrated on the factors set out in paragraph 28 of his skeleton argument but these, drawn from Mr Condliffs witness statement in these proceedings, were somewhat more extensive than the contents of Dr Linney's letter.

Mr Condliffs challenge to the decision of 13 October proceeded upon the basis that the Social Factors Exclusion was actually applied to the factors invoked in his case by Dr Linney. In fact I have very considerable doubt about that. In paragraph 26 of his witness statement, Dr Harvey, the physician who considered whether Dr Linney's letter of 22 September 2010 amounted to material to justify a reconsideration of exceptionality (and who had sat on the original IFR panel in March 2010), stated that he reviewed the letter to see if it contained any fresh evidence that could potentially demonstrate exceptionality. He said that it did not. He said that the material in the letter showed how Mr Condliffs condition had worsened in the last six months but that sadly this deterioration in his clinical condition was consistent with his co-morbidities which was foreseeable if he could not otherwise lose weight. In paragraph 27 he said that he formed the view that the changes in Mr Condliff's condition were well within the range of clinical indicators which could be expected for someone in his situation and while the information showed a sad but predictable decline, it was not evidence that his condition could now be said to be exceptional. (For the reasons given in paragraph 94 below I see no reason not to have regard to Dr Harvey's witness statement.)

There is nothing in that passage to indicate that Dr Harvey disregarded the factors advanced by Dr Linney because they were merely "social". Rather, he found that they did not advance the case on exceptionality because they arose from the existing co-morbidities.

That said, since Dr Harvey's evidence did not address specifically whether he disregarded any factor because it was "social" and because the Social Factors Exclusion is at least capable of excluding factors which might fall within the wide definition of private life under A8, and finally because some of the matters raised in Dr Linney's letter could be regarded as A8 private life factors, it is still necessary for me to consider the lawfulness or otherwise of the Social Factors Exclusion itself.

While it is alleged that the Social Factors Exclusion (and thus any particular decision which applied it) amounts to an unjustified breach of A8 it is not alleged that this is because the PCT was guilty of interfering with Mr Condliffs A8 rights, prohibited by the first part of A8 (2). Rather it is said that this is one of those cases where a positive obligation upon the public authority (here the PCT) has arisen and the Social Factors Exclusion put the PCT in breach of it. In this regard I accept the submission made by Mr Lock that the ECHR is principally negative in quality and the primary purpose of A8 is to prevent arbitrary state action which restricts private and family life. The duty is to "respect" private life not to deliver an unrestricted private and family life for all. Any positive obligations which arise are likely to be limited.

The nature of the claimed positive obligation is stated in paragraph 38 of Mr Clayton's skeleton argument as follows:

It must follow from this characterisation of the breach that Mr Condliff contends more specifically in this context that when considering whether his was an exceptional case under its IFR policy, the PCT was specifically obliged to have regard to A8 and in particular to any A8 factors which were invoked by him and which would not otherwise be considered. If there was no such obligation then the Social Factors Exclusion could not render the decision unlawful to the extent that it ruled out any such factors on the grounds that they were social

The PCT accepted, as it was bound to do, that its decision not to treat Mr Condliffs case as exceptional had an impact on aspects of his private life including among other things his physical integrity in the sense that his position would be much improved if he could have the Surgery. That much would be true of any case where a PCT refused treatment of any significance to one who wanted it, whether by dint of the operation of a general policy (like the PCT's Primary Policy here) or by rejecting an IFR.

But Mr Lock for the PCT contends that it does not follow from this that A8 is engaged when a PCT considers an IFR in the sense that it is then positively obliged to have regard to any A8 factors invoked by the applicant insofar as they would not be considered anyway because clinically relevant. In the alternative Mr Lock contends that even if A8 was so engaged, the Social Factors Exclusion was, to the extent that it would rule out an A8 consideration, justified.

I accept, as does the PCT, that I am obliged to take account of the jurisprudence of the European Court of Human Rights ("the Court") in considering whether it has acted in breach of Mr Condliffs A8 rights.

I deal first with the cases concerned with A8 and the allocation of medical resources by a public authority like the PCT. In my judgment these are highly relevant to the present case even though Mr Condliff does not contend that there was a breach of his A8 rights simply because the Surgery was denied to him.

It is not in dispute that the delegated obligations imposed upon all PCTs by virtue ofs3 of the National Health Service Act 2006 to provide medical services amount in general to target duties having regard to a PCT's obligation to break even each year (see s229 of the 2006 Act) and the fact that resources are limited. A PCT must therefore make choices about what treatments to fund and not to fund. See, for example, R v North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213 at paras. 24-26. And provided that it acts rationally, a PCT may set policies allocating medical resources and treatments even though the effect thereof is that some people will be denied treatment from which they would undoubtedly benefit. As Lord Bingham said in R v Cambridge Health Authority ex parte B [1995] 1 WLR 898:

It is not the role of the court to second-guess such decisions. Its role is generally limited to seeing that the decision-making is within the law. See R (AC) v Berkshire West Primary Care Trust & Anor [2011] EWCA Civ 247 per Hooper LJ at para. 56.

The general position of this PCT in relation to allocation of medical resources and the detailed steps it took in deciding and formulating its policy on bariatric surgery and in particular the threshold of showing a BMI of 50 or more, is set out in paragraphs 7 — 70 of Mr Warnes' first witness statement and in his second statement. As noted above there is no challenge to the PCT's Primary Policy here. It must therefore be assumed that the decision to adopt that Primary Policy was itself lawful (by reference to ECHR considerations and otherwise) even though its effect was to provide treatment to some who needed it, but not to others.

The UK Courts have consistently held that generally A8 is not engaged when a decision is made to allocate medical resources. In the Court of Appeal case of R v North West Lancashire Health Authority exparte A [2000] I WLR 977 Auld LJ said at 995G:

Mr Clayton invites me to disregard this case first because the remarks of their Lordships were strictly obiter and secondly because this case was decided before the Human Rights Act came into force (though after it had been passed). I agree that I am not strictly bound because of the first reason but as to the second the Court dealt fully with the A8 point and Buxton LJ made clear (at pl OOOF-G) that if there was a legitimate complaint about a breach of the ECHR the Court of Appeal would take it extremely seriously. In my judgment I should accord considerable weight to this decision.

It has been cited in later first instance decisions, too. In R (on the application of) v West Middlesex University Hospital NHS Trust [2008] EWHC 855 (Admin) Miffing J said at para. 31 :

And in another medical allocation case, R (AC) v Berkshire West Primary Care Trust [2010] EWHC 1 162 (Admin) Bean J said at para. 37:

I agree that Mr Justice Bean was there dealing with a different claim — by a transsexual to breast augmentation surgery. But his endorsement of North West Lancashire is not qualified in any way.

This decision was the subject of an unsuccessful appeal to the Court of Appeal (see the reference in paragraph 39 above) which challenged among other things para 37 of the judgment below. But the PCT was not called upon to respond on that point. That cannot amount to a positive approval by the Court of Appeal of North West Lancashire. But nor does it indicate any significant concern with it.

Finally, in R (T & ors)v London Borough of Haringey [2005] EWHC 2235 (Admin) Ouseley J considered whether a positive duty arose on the PCT to provide the nursing care by virtue of Articles 2, 3 and 8 of the ECHR where a patient sought additional respite care. He held that it did not and said at paras. 135 and 142:

As for the decisions of the European Court, in Sentges v. The Netherlands (Application no 27677/02) the Court said that while the essential object of Article 8 was to protect the individual from arbitrary interference by the public authorities there may be positive obligations inherent in respect for private or family life and that A8 may 'impose such obligations on a state where there was a direct and immediate link between the measures the state was urged to take and the individual's private life. However,

In that case the court rejected the admissibility of an A8 claim to a robotic arm from the claimant's insurers whose decision to refuse it was upheld by the domestic appeals court.

In Pentiacova v Moldova (Application No. 14462/03: 4 January 2005) (2005) 40 E.H.R.R. SE23 the applicants suffered from chronic renal failure, needing haemodialysis, and complained about the State's failure to provide all the medication necessary for haemodialysis at public cost. The Court said that:

While the Court said that A8 was relevant it held as it had in Sentges that the margin of appreciation was even wider than usual where what was involved was the allocation of medical resources and it rejected the complaint as inadmissible.

In my judgment the clear thrust of the cases referred to above is that generally speaking when a state's public body (like a PCT) decides how to allocate its medical resources among those who seek them A8 is not engaged. From the perspective of the Court it has a wide margin of appreciation (in the domestic context to be equated to a "wide area of discretionary judgment") in such an exercise. A refusal to fund treatment to an applicant is not an interference with his A8 rights in breach of A8 (l) nor is there any positive obligation to provide it.

In paragraph 34 of his Skeleton Argument, Mr Clayton submits that "It is therefore plain that the adverse effects of withholding medical treatment breach the Claimant's right of respect for private life and right of respect for the family contrary to Article 8(1)." That was said in the light of the decision of the Court in Pretty v UK to the effect that A8 included the right to die with dignity and to avoid further suffering, and therefore if the state prevented by law the exercise of that right (in that Mrs Pretty's husband would be committing the offence of assisting suicide) there was a breach. I see that, but Pretty was a case of interference, not breach of some positive obligation. While failing to provide treatment will have an impact on the quality of life and physical integrity of the person denied it, that does not, without more, amount to a breach of his A8 right on the part of the public authority so that justification is required.

Accordingly, when a PCT makes a policy decision about where to allocate its limited medical resources, assuming it does so on a rational basis, the A8 rights of any particular person who may be denied treatment as a result of a decision which applies that policy need not be considered by reason of some positive duty. If that be so, it is hard to see why the position should be any different when the PCT is considering an individual's application under an IFR.

However, Mr Clayton contends for a positive obligation upon the state to create a framework for the PCT within which its IFR decisions should take account of the individual's A8 rights (over and above A8 factors which are also clinical factors which will be considered anyway). As noted above, he contends in paragraph 38 of his skeleton argument that "the PCT.. [has a] positive obligation to put in place a regulatory framework of adjudicatory and enforcement machinery in place to safeguard the Claimant's Article 8 rights", so that the Social Factors Exclusion is a breach of that obligation.

The absence of any A8 engagement in the prior general policy decision process is a powerful factor militating against a positive duty to consider A8 rights in the IFR context. Mr Clayton says that there is no case which expressly says that and of course he is right. But on the other hand there is no case directly supporting the existence of the positive obligation for which he contends in the IFR context. That is not necessarily fatal if it could be established clearly that such an obligation arises as a matter of principle.

Here it is necessary to examine the ECHR cases relied upon in support of the alleged positive duty. In Tysiac v Poland (2007) 22 BHRC 155 the state permitted therapeutic abortions as an exception to the usual rule against abortions. Certain conditions had to be fulfilled but in practice the machinery to enable such abortions to be approved did not work so that the right of a qualifying woman to such an abortion was more apparent than real.

Having noted that the essential object of A8 was to prevent arbitrary interference by public authorities, the Court stated in paragraph 110 that

In paragraph I I I the Courts stated much the same as it said in Pentiacova in the passage quoted in paragraph 50 above. In paragraph 1 12 it stated that:

In the case before it, the Court went on to find that the state was regulating an area which touched the applicant's private life and there was a positive obligation to put in place a proper adjudicative framework to deal with where there was controversy as to whether she was entitled to a therapeutic abortion or not. See paragraphs 124 and 128 of the judgment. The important role of the rule of law was also emphasised. This was a case where it was necessary for the state to take further steps to ensure that a particular right which had been provided for and which was within A8 could properly be exercised. The later abortion case ofA, B & C v Ireland (201 m ECHR 25579/05 was to the same effect.

As already noted, the Court in Tysiac referred to the earlier case ofX and Y v Netherlands (1986) 8 EHHR 235 (as has the Court in other A8 cases) as the exemplar for the existence of a positive obligation to provide a "regulatory framework of adjudicatory and enforcement machinery protecting individual's rights and the implementation, where appropriate, of special measures." The problem in X and Y was that there appeared to be no effective criminal sanction under the law against a person who had committed rape against a mentally-handicapped victim because of the procedural requirements relating to the making of a complaint which could be satisfied neither by the victim nor by anyone else acting on her behalf. So there could be no prosecution. It was accepted that A8 applied because the relevant facts concerned the victim's private life. The Court held that the existing criminal law did not provide her with any practical or effective protection in an area where fundamental values and essential aspects of private life were at stake. There was a positive obligation on the state to have an effective enforcement system in place and as it did not, there was a breach. It should be noted that the procedural problem which stymied the prosecution had not been foreseen by the Dutch authorities. There was a substantive offence covering the wrong committed — it was just that it could not be proceeded with.

Both of these cases are very different from Mr Condliffs. I accept that in and of itself this does not mean that they are irrelevant. But the principle with which they were concerned needs to be properly understood. A framework was positively required so that recognised A8 rights could be properly adjudicated upon (Tysiac) or enforced (X and Y). Without it the relevant right was in jeopardy. But the case before me is not about a framework to safeguard A8 rights which is somehow missing. A8 rights are not, generally, engaged in healthcare resource allocation given the margin of appreciation afforded to states when they make such decisions. The IFR process is just one further aspect of such decision-making. So to talk of the need for a framework here to safeguard A8 rights simply makes no sense. The Court itself has emphasised on numerous occasions (including in Tysiac itself) that whether a positive obligation arises at all varies from case to case.

Indeed here the framework itself is not alleged to be missing. Mr Clayton says that the underlying framework is the whole of the NHS system. But if the workings of that system as far as medical resource rationing is concerned do not generally attract A8 then a restriction on (potentially) some non-clinical A8 factors cannot be said to be an unlawful interference

In my judgment, for the reasons set out above, the particular positive obligation contended for by Mr Condliff does not exist and so there can be no breach of A8 by reason of the Social Factors Exclusion. But insofar as is necessary, I would further justify that conclusion by saying that the Social Factors Exclusion, as part of the IFR policy, is itself a result of a fair balancing exercise which militates against the positive obligation. In the usual negative interference case, the fair balance to be struck between the competing interests of the individual and the community as a whole is part of the justification under A8 (2) if invoked. In the context of positive obligations the case-law generally sees fair balance as part of the determination as to whether the obligation exists at all. See the cases cited above.

In this regard it is necessary to consider the factors set out in the Appendix. See paragraph 1 0 above. By reference to the numbered paragraphs:

There is the further point that if social factors were permitted there would be many more applications which would take longer to process with inevitable consequences for resources which would otherwise be available for others. See paragraph 78 of Mr Warnes' witness statement.

In my judgment it is impossible to see how the Social Factors Exclusion, as part of the PCT policy of medical resource allocation, does not amount to a fair balance between the individuals seeking treatment under the IFRs and the medical requirements of the community as a whole. And in relation to the approach of the Court to that question, the wide margin of appreciation would no doubt be factored in, as noted by Ouseley J in T— see paragraph 47 above.

Both Mr Clayton and Mr Lock addressed me on the question of proportionality generally. Both did so on the assumption that the positive obligation was found to exist and if so, the breach caused by the Social Factors Exclusion needed to be justified. For my own part I consider that the factors under A8 (2) fall more naturally within the question as to whether there was a positive obligation at all. Either way, however, and insofar as it is necessary to have regard to proportionality I now consider it.

As to legitimate aim there is a statutory duty on PCTs to break even and to allocate scarce resources on the footing that there are not enough to provide for everyone's medical requirements. In the context of providing for a limited exception to the Primary Policy of refusing bariatric surgery to those with BMIs of less than 50, not itself challenged, the Social Factors Exclusion is clearly rationally connected to that aim. It is required, for the reasons given by the PCT in the Appendix. As to whether it is no more than necessary, Mr Clayton says that it is too much of a blunt instrument because it is a blanket exclusion which cannot be justified — see for example Hirst v UK No. 2 [2005] ECHR 74025, the prisoners' voting case, at paras. 77, 80 and 82. But this is a very different kind of exclusion and as already noted it is hard to see how a policy of this kind — which is designed to keep the exceptionality consideration to clinical matters — could be framed other than by excluding social factors generally. Mr Clayton says that the policies of other PCTs can be much less than a total exclusion — so that the Social Factors Exclusion here is not necessary. But for the reasons already given I doubt whether in reality there is much difference between this PCT's policy and that of the two others to which I was referred. Finally, I have dealt with fair balance in paragraphs 65- 67 above.

Accordingly, in my judgment, the Social Factors Exclusion does not violate A8 either because the claimed positive obligation never arose or because, if it did, it is then justified.

Mr Clayton then contends that this is not the end of the story because the object of challenge here - as it must be - is not simply the Social Factors Exclusion but the decision of 13 October 2010 directed to Mr Condliff. He says that there is no evidence that this decision was itself proportionate. I do not accept this argument. If the Social Factors Exclusion, as a policy, does not violate A8 (in other words there is no need to consider non-clinical social factors insofar as they would not be considered anyway and insofar as they touched upon A8 rights) I fail to see how any decision which applied it is subject to some yet further A8 scrutiny. There is no need to conduct some other A8 exercise at that point just as there is no need for such an exercise when a person is denied treatment on the basis that he simply fails to qualify under the Primary Policy.

Accordingly, I reject Ground l .

Article 6(1) states:

Mr Condliff contends that if his civil rights were determined by the PCT he was impliedly entitled to adequate reasons for its conclusion. He then alleges (a) that his A8 rights are "civil rights" (b) that they were "determined" by the decision of 13 October but (c) the PCT gave no adequate reasons as to why it had in fact acted compatibly with A8.

In my judgment, if my primary analysis of the A8 position is correct, there is no scope for A6 to operate with reference to A8 because no A8 positive obligations arose at all. While I have in this judgment determined that A8 is not engaged, the PCT made no determination to that effect. If A8 is not engaged, the fact that the decision may have rejected some private life factors in reaching the conclusion that Mr Condliffs case was not exceptional, does not mean that it "determined" his A8 rights, assuming for present purposes that they constituted civil rights.

However, I consider the matter further lest that view be wrong or if the proper analysis of the PCT's success on Ground I is to say that A8 was engaged by means of a positive obligation but its breach occasioned by the Social Factors Exclusion was nonetheless

According to Lord Nicholls in Re S [2002] 2 AC 291 :

Mr Lock contends that this must now be read in the light of the decision of the Supreme Court in Tomlinson v Birmingham City Council [2010] UKSC 8. This held that an application for and refusal of, accommodation to a homeless person under Part VI of the Housing Act 1996 did not engage A6 because the right to claim such accommodation was not itself a civil right. This was because the whole process involved a series of evaluative judgments by the provider as to whether statutory criteria were met and how they should be satisfied. See in particular paras. 30, 39, 43 and 49 of the judgment. Had the matter not involved any assertion of A8 1 would have had no hesitation in applying the same reasoning to the application and decision process involved in the IFR. The decision of the PCT was an administrative one, allocating or not allocating medical resources on the basis of evaluative judgments where there is no underlying "right" to any particular medical treatment, only a target duty on the PCT to provide it.

Does the fact that A8 rights are also invoked here make a difference? In my judgment it does not. I of course accept what Lord Nicholls says in Re S, noted above, but the context there was the fact that civil rights had to relate to domestic law, so that until "domesticated" by the HRA 1998, A8 could not possibly amount to a civil right. He was not considering the point from the perspective of the nature of the application and decision in question, as was the Supreme Court in Tomlinson. I therefore agree with Mr Lock that the decision in Tomlinson and nature of the process involved here (the possibility of Mr Condliff benefiting from an administrative decision of the PCT exercising its evaluative functions in the context of exceptionality) means that A6 (l) was not engaged, irrespective of whether there was or was not a positive obligation to consider any A8 factors invoked.

If I am wrong about that, there then arises the question whether there were adequate reasons given for considering that the decision did not violate A8 because it was justified.

Certainly one cannot find such reasons in the letter of 13 October 2010. But in my judgment this is the wrong place to look. The basis for the justification lies in the reasons for the Social Factors Exclusion given in the Appendix. As was accepted, this was a publicly available document and it was not suggested that Dr Linney was not aware of it. The justification was expanded somewhat by Mr Warnes and in argument before me but the essence was there in the document itself. For the reasons already given in paragraph 71 above, there was no further social factor A8 assessment when it came to making the decision. Adequate reasons were therefore given.

If I am wrong about that and there was, strictly, a breach of A6 (l), I would not here award any substantive remedy because the reasons are found in the Appendix and the evidence of Mr Warnes. Mr Condliff (or rather his legal advisers) have had no difficulty in formulating the challenge to this decision which, by the time the Grounds were served, included the specific challenge to the Social Factors Exclusion which was made under Ground 1.

Accordingly, my primary conclusion is that there was no breach of A6 but if there was, I would not award any substantive relief.

As refined, the particular points now in issue are summarised in paragraph 68 (b) and (d) of Mr Clayton's skeleton argument as follows: the PCT

In argument Mr Clayton did not lay any great stress on the first point, regarding it as tied in with an earlier complaint that the wrong person had dealt with the renewed IFR, a matter resolved by the service of some further evidence. But the complaint may also have related to the fact that the renewed IFR was dealt with by Dr Harvey who effectively screened it to see if there was any fresh evidence which could potentially demonstrate exceptionality so as to warrant the case going back to a full IFR Panel. But I can see nothing wrong in this approach. When an initial IFR is made, this is also screened to see if there is prima facie evidence of exceptionality. There is no obvious breach of the policy committed because of how Dr Harvey dealt with the matter in October 2010 and it is not suggested that the process was irrational or unfair.

The second claim is really to the effect that no reasonable physician undertaking the task which Dr Harvey did could have concluded that there was no new prima facie evidence of exceptionality. In my judgment that is a hopeless submission. Dr Harvey has explained his clinical thought-processes in paragraphs 26 and 27 of his witness statement as set out in paragraph 28 above and, especially in the context of an exceptionality test which suggests that the number of successful applicants will be small and which is not itself challenged, this court will be very slow indeed to interfere. It should not do so here.

I therefore reject Ground 3.

Pursuant to powers granted by section of the 2006 Act, the Secretary of State issued the "Directions to Primary Care Trusts and NHS trusts concerning decisions about drugs and other treatments 2009". Direction 3(3) states that:

The PCT was thus obliged to give reasons for its decision of 13 October 2010 both as a result of that provision and pursuant to its common-law duty of fairness.

Mr Condliff contends that no or no adequate reasons were given for the decision which said simply that the public health consultant who reviewed the letter felt that there was no new evidence for the panel to consider and the additional information provided did not demonstrate exceptionality.

Mr Condliff cannot now, and does not, challenge the decision of 17 March 2010 rejecting his original IFR. In fact, both in relation to that decision and the decision in question, Mr Condliff invoked neither his right of appeal nor the complaints procedure. But it is necessary to go back to the March decision so that the later decision can be seen in context. On I l March Mr Condliffs application was considered by the full panel. It concluded that he did not meet any of the three exceptionality criteria which were required, as set out in paragraph 8 above, and which are not themselves challenged. The reasons were brief because they were showing a negative — a failure to meet the particular exceptionality points. In relation to criterion I (that he was not part of some definable group however small) the decision letter said that there was a definable group of patients with morbid obesity and comorbidities. It was said by Mr Clayton that this was unsatisfactory because the size of this

When it came to the October decision made after further information was submitted there was no real explanation given as to why it did not amount to anything new. I consider that more than this was required especially given that Mr Condliff was making a further application and needed at least some kind of steer as to what might or might not prove acceptable in the future. The essence of the PCT's thinking has only appeared in paragraphs 26 and 27 Dr Harvey's witness statement, summarised in paragraph 28 above.

It is of course possible for a Defendant to rely upon reasons for a decision not articulated at the time with a view to asking the court not to quash it. In this regard I was referred to the case of R v City of Westminster Ex p Ermakov [1995] EWCA Civ 42. This was concerned with a statutory obligation on a local authority to give reasons when declaring that a person was intentionally homeless. In that case the wrong reasons were given at the time and the true reasons were not disclosed. They only appeared later in an affidavit in the judicial review claim. The Court of Appeal reversed the decision of the Judge to dismiss the claim notwithstanding this, on the basis that the matter should be remitted for reconsideration because the only reasons given for the decision were defective in that they were not the true reasons and were not relied upon. In the course of his judgment Lord Justice Hutchison stated as follows:

In this case, there is no question of contradictory reasons being given. Rather the given reason is very truncated. The core reasoning behind the conclusion that there was nothing new did not appear in the letter at all. It only appears in Dr Harvey's witness statement. As to that it is said that I should not admit it for these purposes at all. I reject that. I see no basis for saying that Dr Harvey's recollection is likely to be defective even though the witness statement came something over 4 months after the decision. In truth his was a short and simple clinical point. Nor is it suggested that it is implausible. He did make some other comments in his paragraph 26 about bariatric surgery not being the only solution and that it was not a panacea but these were clearly not the key reasons why he regarded the further information as not being new — this was because the information showed a worsening of the existing clinical conditions which in his view did not make his case (now) exceptional. Mr Telford submitted that Dr Harvey's reference to para. 5.5.3 of the IFR policy must have been mistaken because he was not acting as the panel but only to screen the information. But Dr Harvey never suggested he was the panel. He correctly stated that he was assessing the information to see if there was enough to form a new case of exceptionality to go to the panel.

The real question is whether, given that the reasons have now been given, I should quash the decision on Ground 4. Here I take into account the fact that it was open to Mr Condliff following the decision in October (and indeed in March) 2010 to ask for clarification about the decision and for an explanation as to why the further information was not new. He could have done so at any time and could if necessary have invoked the complaints procedure. Indeed, of the many grounds of challenge enunciated in the letter before action of 15 November 2010, lack of reasons is not one of them. I cannot see that any useful purpose is served in remitting the decision for reconsideration simply so that the PCT can give the reasons already given by Dr Harvey which I do not consider to be themselves inadequate. As I have said his point is a short one.

Accordingly although there was a breach of the duty to give reasons, I would not quash the decision on that ground.

It was also said as part of Ground 4 that the paucity of reasons means that the decision itself should be regarded as irrational. I reject that contention also. The evidence of Dr Harvey shows that it was not irrational.

I have very considerable sympathy for Mr Condliff and the unfortunate and serious condition in which he finds himself. But for all the reasons given above I have to conclude that his claim for judicial review must fail.

In the course of the hearing, some updating evidence about Mr Condliff was produced. I have not referred to it above because it was not relevant to my considerations. But I should record that Mr Lock very fairly pointed out that it remains open to Mr Condliff to make a yet further IFR, if thought appropriate, which can be dealt with swiftly by the PCT.

I am most grateful to Counsel for their excellent oral and written submissions.