Judicial review over reorganisation of air ambulance services in Wales fails

In Evans, R (On the Application Of) v Aneujrin Bevan University Local Health Board & Ors [2025] EWHC 1518 (Admin) (19 June 2025), Mr Justice Turner dismissed the claimant’s arguments that there had been a breach of consultation requirements and the public sector equality duty, concluding: “It is not the function of this court to usurp the decision making function of those to whom parliament has delegated the responsibility. In the absence of valid public law grounds of challenge, the decision of the Joint Commissioning Committee must stand.”

This case concerned a decision taken by the NHS Wales Joint Commissioning Committee (the JCC) on 23 April 2024. The decision approved plans for a significant reorganisation in the deployment of the EMRTS in Wales.

The judge noted: “An important part of the plans entailed the closure of two EMRTS bases in mid and north Wales (with limited operating hours) to be replaced by a single base (with longer operating hours).”

The main rationale for the decision was that it would result in the service meeting more need across Wales than is currently the case. However, the claimant contended the decision disadvantages those who live near the bases which are due to close.

The claimant argued that it was irrational for the defendants to have made the decision without also taking into account the costs of a decision made at the same time to develop a commissioning proposal for a bespoke road based critical care service in remote areas, to enhance the core service model.

Outlining the grounds of challenge, the judge said: “There were originally five grounds of challenge. Permission was granted only in respect of grounds 1, 2 and 5. Renewed permission was sought in respect of ground 4 which, by agreement between the parties, was argued before me on a rolled-up basis. The surviving grounds are:

• Ground 1: The Defendants acted irrationally in approving Recommendation 1 when they had not made any decision about the nature/extent of the mitigating measures required as part of Recommendation 4. It was irrational to assess the affordability/value for money of the proposals in Recommendation 1 when a bespoke road-based service for rural/remote areas was also to be commissioned, at unknown cost, as part of Recommendation 4.
• Ground 2: Further or alternatively, the Defendants breached the Tameside principle in approving the recommendations without having sufficient information about the nature/extent of the mitigating measures required as part of Recommendation 4 and/or the cost of providing those measures.
• Ground 4 (consultation):
  • Limb (a): failure to comply with section 15(3) and (5) of the Health and Social Care (Quality and Engagement) (Wales) Act 2020 (failure to have regard to representations made by Llais and the relevant statutory guidance); and/or
  • Limb (b): failure to have regard to the Welsh Ministers' guidance on changes to health services in Wales ("the Service Changes Guidance") and failing to recognise that the proposals amounted to a significant service change, requiring a full consultation; and/or
  • Limb (c): having decided voluntarily to carry out what was in substance a consultation, and/or having recognised that fairness required the Defendants to comply with the Gunning principles, failing to provide sufficient information at Phase 3 to allow those responding to provide an intelligent response to the consultation.
• Ground 5: Breach of the Equality Act 2010 ("the 2010 Act") (PSED and socio-economic duty [the latter of which applies to Wales but not to England]). The Defendants were not given any directions about what was required to comply with these duties, and the Equality Impact Assessment ('EIA') that was prepared fell far short of the requirements to exercise the duties "in substance, with rigour and with an open mind". No steps were taken to acquire the necessary material to properly assess the impact, and no attempt was made to consider whether the proposals would amount to indirect discrimination.

The defendants contended there was no merit in any of the grounds relied upon. They argued that, by the application of section 31 of the Senior Courts Act 1981, the court was, in any event, precluded from granting relief because it was “highly likely” that the outcome for the complainant would not have been substantially different even if the conduct complained of had not occurred.

Discussing grounds one and two, the judge said: “It is, of course, important that a reviewing court should scrutinise all the relevant documentary material before determining whether or not a decision is flawed. This I have done. However, there is a risk that, in the process of determining the central issues, too much weight may be placed upon the choice of words used in any given document or combination of documents selected from the voluminous material which has accumulated during the long process leading up to the making of the decision under challenge.”

He continued: “The following factors fall to be taken into account:

(i) Care should be exercised to avoid embarking upon a minute textual exegesis of the wording of all documents generated in the lead up to the making of a decision at the expense of discerning the broader factors underlying the reality of the process involved and the central purpose of the exercise in the context of which the decision fell to be directed. The reviewing court must, at the conclusion of its journey, be satisfied that it has been able to see the wood for the trees;

(ii) The exercise of such care is particularly appropriate in cases, such as this one, in which the volume of documentation involved is very considerable and the opportunities for the detection of infelicities in the choice of language and ambiguity of expression are necessarily broadened;

(iii) The choice of words must be seen in the context of the particular purpose or purposes for which the relevant document was generated and the role, expertise and depth of knowledge of its author. Not all documents or sources command equal status in the exercise of forensic interpretation.”

He said: “In this case, I am satisfied that, despite the points made on behalf of the claimant, Recommendation 4 genuinely related to a plan sufficiently distinct from the other recommendations to justify separate consideration by the JCC for all the reasons relied upon by the defendants.”

The judge concluded that that the decision of the JCC was “not irrational” and that the Tameside principles were “duly adhered to”.

Lastly, he rejected the claimant’s arguments that there had been a breach of consultation requirements and the public sector equality duty.

Dismissing the judicial review claim, Mr Justice Turner concluded: “I understand and readily appreciate the depth of feeling involved and the disappointment that this decision will bring to many people in mid and north Wales. However, it is not the function of this court to usurp the decision making function of those to whom parliament has delegated the responsibility. In the absence of valid public law grounds of challenge, the decision of the JCC must stand.”

39 Essex Chambers' barristers Fenella Morris KC and Katherine Barnes acted for the successful defendants, instructed by Sarah Whittle at Blake Morgan.

Lottie Winson