UT/2023/000021 - [2024] UKUT 00334 (TCC)

S242 of the 2006 Act (Public involvement and consultation) imposes an obligation on certain bodies (including NHS foundation trusts) to “make arrangements, as respects health services for which it is responsible, which secure that users of those services … are involved (whether by being consulted or provided with information, or in other ways) in the” planning of the provision, service provision changes, and decisions affecting the service operation.

HMRC submitted that it was questionable whether this provision even applied to the Trust. They point out that the definition in s242(3) of what is meant by a body being “responsible for health services” is written in terms of a body which “provides or will provide, those services to individuals” contrasted with the services here being provided by the Trust to the local authority. For our part, we do not see any difficulty with, on the one hand, the services (the VAT treatment of which is in issue) being the service provision to the local authority (those services being to provide certain health services to the public), and, on the other, the Trust also being a body “responsible for health services” for the purposes of s242. There is no dispute that, pursuant to the various agreements, the Trust did provide various health services to the public. However, for present purposes, we do not need to decide the scope of interpretation of s242 because, even on the basis the section does apply to the Trust, it was not established that the consultation obligation had a real impact on the way the Trust carried out its activities as compared with private operators.

In a similar vein, the Trust relies in respect of sexual health services provision on National Guidance (MEDFASH 2005). That guidance is stated to be produced by “Medical Foundation & Sexual Health a charity supported by the British Medical Association”. The front page of the guidance carries the Department of Health logo and is described as being endorsed by that Department. A number of standards are set out including standard 3 “Empowering and involving people who use services” which, it is explained, set out how service users should be involved in planning and monitoring services.

Mr Edwards notes the guidance refers to s11 Health and Social Care Act 2001 (the predecessor provision to s242) and sets out Recommended Standards for Sexual Health Services. Arguing that this is binding on NHS foundation trusts and noting that some NHS bodies have been judicially reviewed for their alleged failure to consult, Mr Edwards submits that this sort of consultation obligation is a “world away” from how private sector contractors operate. We do not agree. According to its own terms, the application of the guidance is not restricted to public bodies such as the Trust; it applies to all who carry out the relevant services to the public. (The front page of the guidance refers to it being “For all settings providing NHS-funded sexual health services including general practice, hospital and community-based clinics, pharmacies, voluntary and independent sector organisations.” At paragraph 3 the guidance goes on to note:

“Sexual health services are provided in a range of settings, in primary care and acute trusts, in other statutory sector settings such as prisons, as well as in the community, voluntary and independent sectors. This document promotes consistent standards of care and a coordinated approach to service delivery, while recognising that clinical activity in different settings will vary in scope. Sexual health service networks are recommended to support development of a cohesive and comprehensive local service.”

It is also appears that all operators, whether or not NHS foundation trusts would, because of the local authorities’ tender terms, be expected to comply with the MedFASH guidance (Clause 5 of the 2015/16 contract (Integrated Sexual Health Service for Stoke-on-Trent and North Staffordshire sets out in respect of Discharge Criteria and Planning that services providers comply with various specified general principles and also under 5.2 “Other General Quality Standards” mentioning that the MedFASH Recommended Standards for Sexual Health Services are “of particular note”)). These points are sufficient for us to consider that the guidance does not constitute a special legal regime. (We do not therefore address HMRC’s further submission that the guidance was not capable of constituting law in the sense envisaged by the Court of Appeal in Northumbria as it was not statutory guidance generating a duty to adhere.)