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

The Trust also relies on s23 Children and Families Act 2015. That provides for the duty to bring to the attention of the local authority children who, in the trust’s opinion, have (or probably have) special educational needs or a disability (SEND). This is only relevant to children health visiting services. Although it is correct that it does impose an obligation on NHS foundation trusts,we do not consider this section helps the Trust in establishing the existence of a special legal regime.The relevant obligations apply just as much to a private operator through the contract terms stipulated for all providers under the relevant tender. (Clause 4.3 requires delivery against the SEND code of practice responsibilities as are then referred to in Appendix 3 (the reference to Appendix 2 in that clause appears to be in error.)) The Appendix explains that the practice sets out certain obligations including, at paragraph 5.15, that where the health body:

“is of the opinion that a young child under compulsory school age has, or probably has SEN they must inform the child’s parents and bring the child to the attention of the appropriate local authority…”.

Similarly, the “best value” duty (pursuant s 3 of the Local Government Act 1999) under which the local authority must continuously improve the way its functions are exercised having regard to a combination of economy, efficiency and effectiveness and to applicable guidance (for instance that issued by the Treasury)is incorporated into the general terms of public health services contracts (clause 9.1 of the health visiting contract stipulates for instance “The Provider must to the extent reasonably practicable co-operate with and assist the Authority in fulfilling its Best Value Duty”) and again it is not explained in any case how such duty affects the way NHS providers carry out services to local authorities differently to private operators.

Finally, Mr Edwards’ submissions also mentioned s3 of the Care Act 2014, which provides for the promotion of the integration of care and support with health services. However, as HMRC point out, this applies to local authorities, not to the NHS trust. Nor, again, is it explained how the promotion obligation would have a real impact on the way the Trust provides its services to the local authority compared with private operators.

Mr Edwards made a more general submission contrasting the role of the NHS foundation trust as a “mover and shaker” in the field compared to a private operator as a “taker” of the relevant regulations; however, we saw no basis for that kind of characterisation. There was nothing in the tender arrangements shown to us to suggest such a distinction in practice.

In conclusion, we are not persuaded that any of the provisions relied upon, whether individually, or together, constitute a special legal regime.