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The JR Background

Permission to Appeal

Click here to read more about our march into the courts.

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We need to return to Court - urgently.

After much discussion with our legal team and the 999 Steering Group we are now in the process of applying for permission to Appeal the ruling against our Judicial Review.

 

We were "disappointed" by the Courts ruling last month - but we're more than "disappointed" we're furious! And we are determined that the courts should have the opportunity to scrutinise our case again.

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WHY ARE WE APPEALING?

The court accepted that Ministers had assured Parliament that the Health and Social Care Act 2012 would not lead to price competition between providers bidding for NHS contracts, and that competition would be based on quality and patient choice. Despite recognising this the Court found that even if the ACO contract encourages price competition - a key part of our legal argument -  this is not unlawful but “is a political objection and not a matter for the court”.

 

We could not disagree more strongly.

 

While we are no fans of the 2012 Health and Social Care Act - which increased private companies’ access to NHS contracts, fragmented the NHS and removed the Secretary of State’s duty to provide a universal, comprehensive health service in England -  we think that it is vital for the future of the NHS that the court of appeal be given an opportunity to scrutinise the Judicial Review arguments and ruling, in order to ensure that decisions in relation to the future of the NHS are made lawfully and are enacted.

 

A vital matter of public interest

 

On two counts...

 

First, the new ACO Contract introduces a form of payment, called a Whole Population Annual Payment, which is designed to “manage demand” in order to meet a £22bn+ NHS and social care funding shortfall by 2020/21.  It is basically a fixed annual sum paid to an accountable care provider, to cover each person in the area that the ACO contract applies to, regardless of the number or complexity of NHS services provided.

 

The effects of this payment mechanism, if introduced into the English NHS, would be to restrict access to NHS treatments; speed up the creation of a two-tier health system where people with money pay to go private while the rest make do with a limited NHS;, and increase privatisation.

 

Second, the fact that NHS quangos are spending considerable sums of public money, on the assumption that the ACO Contract is lawful, means it is in the public interest to determine the legality of the ACO Contract as soon as possible.

 

Another reason why we strongly feel this decision requires further scrutiny from the Court of Appeal is that our judicial review is about the current Accountable Care Organisation contract 2017/18-2018/19. It isnot about some hypothetical future contract, where NHS Improvement could change the rules about NHS payment arrangements that NHS England is required to follow - which the ruling seems to assume.

 

We are particularly concerned by the Court’s observation that “the current draft of the ACO contract may need adjusting...”  – while ultimately ruling that the ACO contract payment mechanism is lawful.

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Thanks to all who helped raise the £1600 needed to cover the costs of applying for permission to appeal.

1. The Permission to Appeal papers are with the courts. Our legal team have asked them to expedite (speed up on grounds of public interest) the process.

2. We wait to hear if permission is granted - this could be decided solely on our Permission to Appeal papers. Or the judge could decide it's complicated and pass them on to an Oral Hearing.

3. If permission is granted on the papers alone, the case will proceed to a substantive Court of Appeal hearing.

4. If the appeal is expedited, and the judge decides to pass the decision on to an oral hearing, we can expect to be in Court for this permission hearing before the end of July (at the latest).

5. If permission is granted we will then need to launch Stage 5 CrowdJustice crowdfunder to cover the costs of the Appeal.

6. We are told that the Court of Appeal is very slow at the moment. If permission is granted (and they respond to our request for speed) then we would probably be in the Court of Appeal for our appeal hearing between October – December 2018.

 

We are carrying on the fight for #Justice4NHS and it means a great deal to know you are sticking with us.

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If it is lawful, why might it need adjusting?

 

There is extra urgency to the need for the Court of Appeal to consider the issue because we are aware that some Clinical Commissioning Groups are already introducing the WPAP payment mechanism - regardless of NHS England’s statements that the ACO contract will now not be used until after a 12-week public consultation.

 

Altogether our application for permission to appeal identifies 7 grounds of appeal.

 

Many thanks to Rowan Smith and Anna Dews at Leigh Day, as well as David Lock Q.C. and Leon Glenister at Landmark Chambers, for taking our appeal forward. And to all the campaigners and members of the public who have supported the 999 Judicial Review.

 

We hope you will stick with us as we apply for permission to appeal.

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The Process now...