The power of the National Health Service Commissioning Board, under section 14Z10 of the National Health Service Act 2006, as inserted, to “provide assistance or support to a clinical commissioning group” is not limited to the provision of funding, goods and services and includes a power to issue guidance. The giving of guidance to bodies who consider that it would be of assistance to them constitutes the provision of both assistance and support to those bodies. The power to issue guidance under section 14Z10 is not precluded by the existence of a specific power and duty, in section 14Z8, to give guidance on certain matters. Moreover, in so far as the section 14Z8 power concerns the giving of guidance to clinical commissioning groups on “the discharge of their commissioning functions”, it does not cover the provision of guidance to assist clinical commissioning groups in supporting and guiding primary care prescribers, which is not a commissioning function. The function of arranging for the provision of primary medical services is a function of the National Health Service Commissioning Board, not of clinical commissioning groups (paras 103–104).

Where, therefore, with a view to achieving efficiencies in the primary care budget the defendant board issued guidance to clinical commissioning groups on “Items which should not routinely be prescribed in primary care”, including items for which where there was a lack of robust evidence of clinical effectiveness, and the claimant sought judicial review challenging the lawfulness of the guidance, in particular the inclusion of homeopathic products in the list of such items, on the ground, inter alia, that the defendant had no power to issue the guidance under section 14Z10 of the National Health Service Act 2006 as it purported to do but was instead required to proceed under the specific provision in section 14Z8 relating to the publication of guidance for clinical commissioning groups on the discharge of their commissioning functions—