R CN v The Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos,Lady Justice King,Lord Justice Dingemans |
| Judgment Date | 04 February 2022 |
| Neutral Citation | [2022] EWCA Civ 86 |
| Docket Number | Appeal No: C1/2021/0825 |
| Court | Court of Appeal (Civil Division) |
| Year | 2022 |
and
[2022] EWCA Civ 86
Sir Geoffrey Vos, MASTER OF THE ROLLS
Lady Justice King
and
Lord Justice Dingemans
Appeal No: C1/2021/0825
Case No: CO/2809/2020
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mrs Justice Stacey [2021] EWHC 1770 (Admin)
Royal Courts of Justice, Strand
London WC2A 2LL
Christian J Howells (instructed by Watkins and Gunn) for the claimant
Benjamin Tankel (instructed by Government Legal Department) for the defendant.
Hearing date: 25 January 2022
Approved Judgment
Sir Geoffrey Vos, Master of the Rolls:
Introduction
The England Infected Blood Support Scheme (EIBSS) was established on 1 November 2017 to provide ex gratia support to those who had contracted hepatitis C virus (HCV) and human immunodeficiency virus (HIV) in general terms from unscreened blood and blood products provided by the National Health Service (the NHS). The EIBSS replaced five pre-existing schemes 1 (known together as the Alliance House organisations), which had provided similar support.
Mrs Justice Stacey refused the appellant, CN, permission to apply for judicial review of a decision allegedly contained in an email dated 12 May 2020 from Joanne Miles (the Response), writing on behalf of the Department of Health and Social Care (the Department). 2 Whether or not the Response constituted a decision, CN put the claim on the basis that there had been a refusal to include persons in his position within the EIBSS. CN suffers from hepatitis B virus (HBV) which he alleges he contracted when he was given blood transfusions on or after 14 April 1989, when he underwent a bone marrow transplant at Hammersmith Hospital. It is now accepted that the NHS screened blood and blood products for HBV at least from the mid-1970s. 3
The Response explained why the Department had no plans to expand the eligibility criteria of the EIBSS to those in CN's position as follows:
“The eligibility criteria for support implemented by the Alliance House organisations were carried over to the EIBSS. [These] criteria [did] not include infection with hepatitis B because blood donors were screened for hepatitis B from 1972. There was therefore a significantly lower probability of blood being contaminated with hepatitis B in the 1980s than for HIV and hepatitis C, for which screening was introduced in 1985 and 1991 respectively”.
CN was granted permission to appeal Stacey J's decision by Holroyde LJ on 27 August 2021 (amended on 1 September 2021).
The central question in this appeal against the refusal of permission to apply for judicial review is whether it is arguable that the exclusion of HBV sufferers from the EIBSS is discriminatory and unreasonable. CN submits that it is, primarily on the grounds that it is arguable that it was contrary to article 14 read with article 8 and article 1 protocol 1 (A1P1) of the European Convention on Human Rights (the Convention). CN says that he is in a relevantly similar situation to HIV and HCV sufferers covered by the EIBSS, and that the Secretary of State for Health and Social Care (the respondent) cannot justify
The four grounds of appeal are, to be clear, that it was arguable that (i) CN was in a relevantly similar position to HIV and HCV sufferers, (ii) the Secretary of State could not justify the different treatment, (iii) the failure to include HBV sufferers was unreasonable, and (iv) the judge was wrong to decide that the application was out of time and to refuse to extend time for it to be made.
The Secretary of State has filed a Respondent's Notice in which he asked the court to uphold the judge on the additional basis that that the conduct complained of was not within the ambit of either article 8 or A1P1. It will be convenient to deal with that issue first.
I have concluded that this appeal must be dismissed. In essence, like the judge, I do not think it is necessary to decide either whether the Secretary of State's conduct is within the ambit of article 8 or A1P1 or whether the grounds upon which CN has been treated differently constitute a status. I am prepared to assume these points in favour of CN. The three crucial questions are (a) whether it was arguable that CN was in a relevantly similar position to HIV and HCV sufferers, (b) whether the Secretary of State can, in any event justify the different treatment, and (c) whether the application is out of time. On those questions, I have concluded that it is not arguable that CN is in a relevantly similar position, because the true comparison is either (a) with HCV sufferers who contracted their condition from unscreened blood or blood products, or (b) with HIV sufferers who would be very unlikely to be able to claim if they received treated blood or blood products. Even if there were different treatment of persons in a relevantly similar position, it is not arguable that the Secretary of State is unable to justify that different treatment. A sliding scale of intensity of review is appropriate in this case, which is concerned with judgments of social and economic policy and with disability, but the Secretary of State must nonetheless be given a wide margin of appreciation in creating an ex gratia scheme of this kind. Even if that were wrong, the judge was right to decide that this application was out of time, because the failure to include HBV sufferers in a support scheme was not a continuing act, but an act when the relevant schemes were introduced in 2004 and 2017.
I will first deal with the essential factual background, the relevant authorities and legislation and the judge's reasons, before considering the issues raised by the appeal.
The essential factual background
CN was, as I have said, infected with HBV on or after 14 April 1989. As a result, CN has suffered serious health problems including chronic liver disease, renal failure, high blood pressure, regular loose bowels, short term memory loss, degeneration of joints, a compromised immune system, and breathlessness. He has been forced to abandon a successful food catering business in Sydney and return to the UK to receive medical treatment. He has relied on state benefits for the last 13 years. Nothing in this judgment should be taken to indicate a lack of sympathy for CN's suffering and his economic plight.
On 29 March 1995, CN issued a civil claim against the NHS and the National Blood Authority. Although CN had obtained an expert report to the effect that his infection was obtained from infected blood, he discontinued the claim when legal aid was withdrawn.
CN is a core participant in the Infected Blood Inquiry (the Inquiry), chaired by Sir Brian Langstaff. The Inquiry is considering whether wider support should be available to those affected by infected blood products.
On 11 August 2020, CN issued this claim contending that the decision contained in the Response or to exclude HBV sufferers from the EIBSS was (a) contrary to article 14 read with article 8 and A1P1, (b) disability discrimination contrary to section 15 of the Equality Act 2010, and (c) unreasonable. A further issue arose as to whether the claim was out of time, for the reasons detailed above.
On 15 February 2021, Martin Spencer J refused CN permission to apply for judicial review on paper on the basis that the application was manifestly out of time and was not brought within time by setting up an “artificial decision through correspondence”. The government had to have an ambit of discretion in setting up an ex gratia scheme, and it was not arguably irrational or unlawful to exclude those infected with HBV.
The relevant legislation and authorities
Article 14 of the Convention is entitled “Prohibition of discrimination” and provides:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status.
Article 8 of the Convention is entitled “Right to respect for private and family life” and provides:
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for...
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