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

The Trust also pointed to the Secretary of State’s power of direction in s253 2006 Act “to give directions” if he or she “considers that by reason of an emergency it is appropriate to do so”. Under s253(1) and (2), such directions can be given to NHS bodies a) about the exercise of any of the body’s functions, b) directing the body to cease exercise of any of its functions for a specified period c) to exercise any of its functions concurrently with another body or person for a specified period and d) to exercise any function conferred on another body or person under or by virtue of the 2006 Act for a specified period.

Mr Mantle’s first point in response is that there was no evidence of such directions being exercised in the relevant period. We do not agree the lack of any such direction during the relevant period precludes the potential relevance of the provision. In principle, it is at least possible that the risk of such direction could mean that the way in which the services was provided was different. The more relevant point, which means the provision does not constitute a special legal regime, is that such directions can be made to other bodies (under s253(1)(d)) direction can also be made to “a body or person, other than an NHS body providing services in pursuance of arrangements made…iii) by a local authority for the purpose of the exercise of its functions under or by virtue of section 2B or 6C(1)…”).

In reply, Mr Edwards noted that s253(2A) provided for a narrower scope of direction for “other bodies” as compared with NHS bodies such as the Trust. It is true that the scope of direction is worded differently as between NHS bodies and other bodies but we do not regard the differences as material. As regards both types of body, the direction can require cessation of service. The only apparent difference is the way in which the power is worded in respect of the taking on of other functions. Whereas for NHS bodies, the direction extends to taking on functions, either concurrently or to the exclusion of, another body or person who has functions under the 2006 Act for a specified period, in respect of non-NHS bodies, the power is “to provide other services for the purposes of the health service for a specified period”. Thus, in substance, private operators providing the relevant services to local authorities appear to be just as amenable to the kind of power of direction that NHS bodies are. In any case, no explanation is apparent from the face of the provisions or in the evidence before us that s253 gave rise to any real impact in the way operators carried out the relevant services.