From: Rear Admiral Philip Mathias
The Rt. Hon. Lord Justice Bean 27 January 2022 The Court of Appeal - Civil Division
Members of the Supreme Court
Dame Meg Hillier – Chair of the PAC
Mr Wes Streeting MP – Shadow Secretary of State for Health & Social Care CEOs of the CHC Alliance Charities
The National Media
Dear Lord Justice Bean,
REFUSAL TO GRANT PERMISSION FOR A JUDICIAL REVIEW INTO NHS CONTINUING HEALTHCARE
Having reflected on your recent decision to refuse permission for a Judicial Review into the £multi-billion NHS Continuing Healthcare (CHC) scandal, I wanted you know that in my view, shared by many thousands, you have made a serious error of judgement. No one is infallible, not even Judges.
Your inflexible ruling on the legal issues of Delay and Standing, without recourse to legal precedent, means that irrespective of the evidence, in practice it will never be possible for any organisation or member of the public to make a legal challenge, in order to hold the NHS and the Government to account for systemic and widespread unlawfulnessregarding CHC funding. This has resulted in many thousands of very ill and vulnerable people having to pay huge sums for their healthcare, which by law should be funded by the NHS. Any expert body would already be aware of the CHC scandal, so would be disqualified on Delay and a member of the public would not have sufficient Standing to represent others. Your proposition that a solicitor could mount a challenge based on 'one or more clients' is absurd. It would not prove systemic failure at a national level – the whole point of this Judicial Review application, supported by 800 pages of evidence.
In your ruling, you note: "the Public Accounts Committee (PAC) has found that there are systemic failures in the funding of patients with continuing healthcare needs. If they and the Clamant (sic) are right, the remedy is in the political sphere, not the courts". You seem to have missed the unambiguous statement by the PAC: "NHS England is not adequately carrying out its responsibility to ensure CCGs are complying with the legal requirement to provide CHC to those who are eligible.” So the highly regarded and well informed PAC, which relies on extensive and expert witnesses, has reported that the NHS is not complying with the law but it has no powers of legal enforcement. So who does - other than the Courts?
You have denied many thousands of desperately ill and vulnerable people the opportunity for justice. One day you, or a loved one, may experience this disgraceful state of affairs but perhaps you are sufficiently wealthy for this not to be of concern.