April 2025: Please note, this case has been appealed (see R (On the Application Of A) v North Central London Integrated Care Board [2025] EWCA Civ 485) and this webpage will be updated in due course.

Case overview

This judicial review case concerned a child with complex health needs who received NHS Continuing Care and had an EHC plan. The claim was against the integrated care board (ICB) but the local authority (the London Borough of Haringey) was involved as what’s called an “interested party”.

While the contents of his EHC plan was being appealed in the SEND Tribunal, his Continuing Care package was reviewed and increased to include a personal healthcare budget for a health assistant and carer to provide 2:1 support amounting to a total of 126 hours per week. He would also receive 14 hours per week of 1:1 support from social care.

The SEND Tribunal recommended that the child’s EHC plan include the 2:1 care at all times provided by Band 4 carers (which it described as having a high level of experience and existing knowledge of complex seizures and challenging behaviours), including 13 hours during the six week summer holiday period. It also recommended 14 hours per week of social care support be provided by two carers at all times.

The Continuing Care Panel disagreed with the health care recommendation stating there were no clinically assessed needs that supported an increase, beyond what it had decided the child required at the Continuing Care review.

The LA issued an updated EHC plan following the appeal in which Section G (amongst other things) included that the child “will be provided with a health care plan”.

The agency, a registered care provider, delivering the child’s health care provision struggled to meet the increase to 126 hours per week. The child’s mother covered significant periods of care and raised concerns about the provider. There were various issues with the ICB finding an alternative. The child’s mother ended up informing the ICB the family would privately contract one instead. Consequently the ICB stopped the funding for this and the parents paid almost £10,000 per week for the child’s care.

This judicial review case concerned three issues:

1. Whether the ICB had breached its duty to “arrange” the health care provision specified in the child’s EHC plan under section 42(3) Children and Families Act (CFA) 2014.

This point was about how the ICB had not provided a new “health care plan” since the child’s EHC plan was updated after the SEND Tribunal appeal to include this.

It was agreed that a health care plan can be drafted by a registered provider, so doesn’t have to be written by the ICB itself. However, the ICB acknowledged it still had a duty to make sure it was in place and adequate. The ICB said there was a health care plan in place, but it predated the child’s EHC plan. The ICB said, while it was out of date, it hadn’t breached its duty because it had asked the registered care provider to update it.

The High Court disagreed. It said the ICB’s duty is absolute and non-delegable and an ICB had to satisfy itself that health care provision specified in Section G of an EHC plan “has in fact been put in place and to take further reasonable steps to arrange it if it has not been”.

In this case, the ICB should have arranged for an updated health care plan reflecting the outcome of the Continuing Care review – asking the provider to update the plan five months after the review was not good enough. The ICB had breached section 42(3) CFA 2014.

2. Whether the ICB’s decision to end its contract with the registered healthcare provider and replace it with another one was irrational

In this case, it wasn’t. The Court emphasised that whether something it “irrational” or “unreasonable” in the legal sense is contextual. Some of the relevant context in this case was:

• the provider whose contract the ICB had terminated could not meet the requirements of the child’s care package without substantially sub-contracting to an unregistered provider and had not produced the updated health care plan when requested
• shortly before the new provider was due to start the child’s mother withdrew her consent to this, and due to her own health, asked for a pause on emails and meetings, and
• the new provider had been involved in substantial transition planning.

The ICB continued to try and engage the child’s parents. The Court said that due to its duties, the ICB couldn’t stand back and do nothing and while another ICB might have reached a different decision, this ICB’s choice was reasonably open to it.

3. Whether the child’s parents were entitled to get the money they had paid for the healthcare provision back (referred to as “restitution on the grounds of unjust enrichment”)

There were arguments about the extent to which this type of remedy is available in a judicial review case. The Court didn’t make a call on this. Instead it decided this case wasn’t the right way for the parents to try to recover the money they had spent. It noted that the child was the claimant in this case (not his parents) and could not show the ICB was unfairly enriched at the child’s expense. The Court said the parents might be able to recover the money they spent via a different claim in the County Court.

What does this mean?

The responsible commissioning body (usually the local ICB) has an absolute duty to arrange health care provision specified in Section G of an EHC plan. It cannot simply ask someone else to put it in place, it must make sure it has in fact been put in place and, if it hasn’t, take further reasonable steps to arrange it.

Whether a public body’s decision is “irrational” or “unreasonable” in the legal sense is a high threshold. Whether it is met is context specific. It won’t be if it’s within the range of reasonable decisions open to the decision maker. It will be if no sensible authority would have reached the same decision.

A judicial review about an ICB failing to meet its duties to a child is a claim in the child’s name, not their parents’. Therefore, parents should take advice on other options for trying to get money they have spent on healthcare provision back, like a County Court claim.

The full case report for R(A) v North Central London Integrated Care Board [2024] EWHC 2682 (Admin) is available online.

For more information see our pages on health care, EHC plans – health and social care needs, enforcing your EHC plan – health care provision (Section G) and judicial review.