R (Unison) v Monitor

The Administrative Court has upheld a challenge to rules capping the amount of income that NHS Foundation Trusts can earn from private health care. The rules, made by Monitor, the independent regulator of NHS Foundation Trusts, were challenged by the trade union Unison, with the support of the Secretary of State for Health.

Foundation Trusts have broader freedoms from central government control than ordinary NHS trusts. In order to ensure that Foundation Trusts focus on providing NHS care, section 44 of the National Health Service Act 2006 requires Monitor to exercise its powers with a view to securing that a Foundation Trust’s income derived from private charges does not exceed a specified cap.

Mr Justice Cranston decided that Monitor had adopted too narrow a definition of “income derived from private charges”. He held that it was necessary to look at the “reality” of where the income came from, and that the cap applied even where the Foundation Trust received income from a provider of private health care which it did not control. 

Michael Fordham QC and David Pievsky appeared for Monitor
Javan Herberg and Mark Vinall appeared for the Secretary of State for Health