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Campaigners bid to take NHS payment mechanism row to Supreme Court

Campaigners challenging the lawfulness of a payment mechanism known as the ‘Whole Population Annual Payment’ (WPAP) under the proposed integrated care provider (ICP) contracts for the NHS have applied to the Supreme Court for permission to appeal.

Their challenge was dismissed by the Court of Appeal last month in Jennifer Shepherd (On Behalf of 999 Call for the NHS), R (On the Application Of) v (1) NHS Calderdale Clinical Commissioning Group (2) Monitor [2018] EWCA Civ 2849.

The case concerns the statutory construction of the pricing provisions of the Health and Social Care Act 2012 ("the 2012 Act").

The draft ICP Contract was developed by the respondents, NHS England and Monitor, as an alternative to the current model for payment of health care services known as "Payment by Results" ("PbR").

The appellant, who acted on behalf of campaign group 999 Call for the NHS, appealed the dismissal of her claim by Mr Justice Kerr in May this year.

She contended that the proposed change in the payment system from PbR to WPAP was unlawful and would put the quality and safety of NHS services for patients at risk.

The respondents contended that the appellant's claim was premised on an incorrect construction of the pricing provisions of the 2012 Act and the WPAP mechanism would help promote integration and innovation in NHS services.

Mr Justice Kerr held that the WPAP scheme was lawful under the 2012 Act and dismissed the appellant's claim. Ms Shepherd appealed.

Lord Justice Haddon-Cave, with whom the President of the Family Division and Lady Justice Nicola Davies agreed, concluded that Kerr J had been right to hold that there was nothing unlawful about the proposed WPAP scheme.

He also said that the High Court judge had been right to hold that s.115 of the 2012 Act did not require visible prices fixed in advance for each individual episode.

Lord Justice Haddon-Cave therefore rejected the appellant's case on construction of the 2012 Act and, accordingly, dismissed the appeal.

On applying to the Supreme Court, 999 Call for the NHS claimed that the Court of Appeal ruling had not properly addressed vital public interest issues and legal points about the pricing methods.

It will shortly launch a new crowdfunding appeal, via the online CrowdJustice platform.
 
999 Call for the NHS campaigner Jenny Shepherd, the appellant, criticised NHS England’s claim before the Court of Appeal that the new payment method promoted innovation and integration, which are statutory goals for the NHS. She said NHS England had not explained how the payment arrangement did this, nor did the Court of Appeal judges ask them to.

“The judges may not have been bothered - but outside the court, NHS England’s smokescreen of ‘innovation and integration’ has people worried,” Shepherd said. “A GP told me it is all about cost cutting and not in the public interest.

“In her experience, NHS England's version of innovation means getting someone with less qualifications to do the job. And integration means getting one person to do the work of two people (and letting the other one go)."

999 Call for the NHS campaigner Steve Carne added: "The Court of Appeal judgement against us is pretty scathing. But we can't see that it has grappled with the case, or provided proper reasons why what we said is wrong. So we hope that the Supreme Court will accept the need for a judgement that really engages with the important public interest issues that our case is based on."

The campaign group’s legal team is Rowan Smith and Anna Dews from law firm Leigh Day, and David Lock QC and Leon Glenister from Landmark Chambers.