Unison, R (on the application of) v Monitor & Ors

Unison, R (on the application of) v Monitor & Ors

Monitor's adoption of option 2 was unlawful because it failed to apply the correct statutory test for 'income derived from private charges' under section 44 of the National Health Service Act 2006. The statutory concept requires looking at the real source of income, not just income over which the NHS foundation trust has control or significant influence. Option 2's limitation to controlled entities was inconsistent with the statutory purpose and language.

Parties
Claimant: Unison; Defendant: Monitor; Interested Party: Secretary of State for Health; Interested Party: Foundation Trust Network
Jurisdiction
England and Wales
Judgment Date
09 December 2009
Procedural Posture
Judicial Review / Judgment After Full Hearing
Outcome
Declaration granted; Monitor's adoption of option 2 on 26 November 2008 was unlawful. No relief granted in relation to prior operation of option 1.
Legal Topics
Judicial Review of Regulator, Statutory Cap on Private Patient Income, Interpretation of 'income Derived From Private Charges', National Health Service Act 2006
Administrative Law Health Law Statutory Interpretation Judicial Review of Regulator Statutory Cap on Private Patient Income Interpretation of 'income Derived From Private Charges' National Health Service Act 2006

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Parties

Unison

Claimant

Monitor

Defendant

Secretary of State for Health

Interested Party

Foundation Trust Network

Interested Party

Procedural Posture

Judicial Review / Judgment After Full Hearing

Legal Issues

  1. 1 What is the correct interpretation of 'income derived from private charges' under section 44 of the National Health Service Act 2006?
  2. 2 Was Monitor's adoption of 'option 2' for calculating the private patient income cap lawful?

Ratio Decidendi

Monitor's adoption of option 2 was unlawful because it failed to apply the correct statutory test for 'income derived from private charges' under section 44 of the National Health Service Act 2006. The statutory concept requires looking at the real source of income, not just income over which the NHS foundation trust has control or significant influence. Option 2's limitation to controlled entities was inconsistent with the statutory purpose and language.

Court Disposition

Declaration granted; Monitor's adoption of option 2 on 26 November 2008 was unlawful. No relief granted in relation to prior operation of option 1.

Orders

  • Declaration that Monitor's adoption of option 2 as to the application of the statutory cap on private patient income for NHS foundation trusts was unlawful.
  • No relief in relation to Monitor's operation of option 1 for previous years.