• Second of two judicial review hearings against NHS England’s ACO plans heard today
  • Claimants say ACOs amount to an unlawful usurping of CCG responsibilities under the Health and Social Care Act 2012
  • NHS England argues nothing in draft ACO contract that would allow unlawful delegation of powers from CCGs to ACOs
  • National commissioner also argues challenge is based on “policy intent” and is not an apt subject for judicial review

NHS England’s promotion of integration is an unlawful “usurping” of the Health and Social Care Act, the High Court has heard.

The claim was part of a legal challenge brought by five claimants, including Dr Colin Hutchinson and Professor Allyson Pollock, against NHS England and the health and social care secretary at the High Court today.

The claimants allege that the accountable care model pursued constitutes a “radical and substantial” change, which involves “unlawful delegation” of CCGs’ responsibilities to a single provider, that may be a private, for profit organisation.

They also argued NHSE and the Department of Health and Social Care had failed in their duty of transparency.

However, NHSE argued the claimant’s challenge was based upon “policy intent”, which is not a permitted subject for judicial review, and its draft accountable care organisation contract “expressly prohibits” any “unlawful delegation” by a CCG.

This is the second of two judicial review hearings against NHS England’s ACO contract, the first of which was dismissed earlier this month.

Jennifer Richards QC, representing the claimants, said: “An ACO [taking] most decisions about resource allocations and the design of care is ultra vires, which means ACOs [would be] usurping [the] functions of clinical commissioning groups…

“It is the scale of what is proposed for an ACO which is central to our submission. The distinguishing features of an ACO, are not integrated care, it is a single organisation holding the majority of a health budget for a defined population for 10 years [and] will be responsible for the health and care of those populations for the duration of those years.”

When asked by the judge, Mr Justice Green, whether she was suggesting NHSE and the DHSC intended to act in an unlawful manner, Ms Richards said: “We are not suggesting there is a deliberate intent to do something unlawful [by the defendants], we are suggesting the effect of it is unlawful.”

The claimants also argued the main aim of the Health and Social Care Act 2012 “was not the promotion of integration” but “the pursuit of quality through competition and the completion of the purchaser/provider split”, which they argued was “antithetical to service integration.”

They also cited a statement from NHSE chief executive Simon Stevens to the Commons health committee, when he said ACOs “will for the first time since 1990 effectively end the purchaser/provider split” and that NHSE would “push as hard as we can get there without Parliament itself having to legislate”.

Mr Justice Green asked Ms Richards what a CCG’s role would be once an ACO was in place.

Ms Richards said: “What would be left would be a role of monitoring and regulation which is very far from what the act envisaged.” She added that ACOs would be able to undertake major decisions, hospital closures for example, which are currently undertaken by CCGs.

NHSE’s skeleton argument said: “Asking the court to adjudicate in these proceeding upon a draft contract (or policy intention) in such circumstances is wrong. It usurps administrative functions improperly and amounts to seeking an advisory judgement.”

It added that integration is “not just a matter of policy” it is a statutory obligation and claim there is nothing in its draft ACO contract that is prohibited by legislation.

NHSE and the secretary of state’s defence arguments are yet to be heard by the court.

The hearing continues.

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