The Queen (on the Application of MP) v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis,THE HONOURABLE |
| Judgment Date | 10 December 2018 |
| Neutral Citation | [2018] EWHC 3392 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4870/2017 |
| Date | 10 December 2018 |
[2018] EWHC 3392 (Admin)
The Honourable Mr Justice Lewis
Case No: CO/4870/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jason Coppel Q.C. and Christopher Knight (instructed by Deighton Pierce Glynn) for the Claimant
Andrew Henshaw Q.C., Joe BarrettandDaniel Isenberg (instructed by Government Legal Department) for the Defendant
Hearing dates: 10 and 11 July 2018
Approved Judgment
INTRODUCTION
This is a claim for judicial review of the National Health Service (Charges to Overseas Visitors) Amendment Regulations 2017 (“the 2017 Regulations”). By those regulations, amendments were made to the regulations governing the charging of those not ordinarily resident in the United Kingdom for certain treatment. In brief, for present purposes, the 2017 Regulations provided that (1) charges would need to be paid in advance of the provision of treatment which was not urgent or immediately necessary (2) NHS trusts were required to record the fact that a person was an overseas visitor liable to be charged and (3) liability to pay charges was extended to cover certain NHS-funded services provided in the community (whereas charging previously related to services provided by NHS bodies in or under the direction of a hospital).
The claimant contends that the first two changes were introduced without public consultation and were unlawful for that reason. The claimant also contends that the defendant failed to discharge his duties under section 149 of the Equality Act 2010 (“the 2010 Act”), or his duties under section 1B and 1C of the National Health Service Act 2006 (“the 2006 Act”) to have due regard to certain matters before making the 2017 Regulations.
Permission to bring a claim on a third ground, namely that the defendant had failed to make sufficient enquiries about the alleged deterrent effect of the changes as required by common law or section 1A of the 2006 Act, was refused. The claimant applied at the hearing for that refusal to be reconsidered and for permission to be granted on that third ground.
The claimant is a 58 year-old man who, sadly, suffers from a form of blood cancer and required medical treatment. Fortunately, it transpired at the hearing on 10 July 2018 that the claimant had had the necessary treatment prior to the hearing and the urgency had been removed. Furthermore, I was informed at the hearing that the First-tier Tribunal (Immigration and Asylum Chamber) had allowed an appeal against a decision by the Secretary of State for the Home Department that the claimant did not have leave to enter or remain in the United Kingdom and had determined that the claimant had a right of abode in the United Kingdom. I was told in written submissions dated 31 October 2018 that indefinite leave to remain had not been granted at that date but was expected to be granted by the end of November 2018. The consequence of that would be, it seems, that the claimant would not in future be liable to be charged for NHS-funded services in any event. It has not been suggested that the actual provision of medical treatment or the imminent grant of indefinite leave to remain rendered this challenge academic.
It also transpired at the hearing of the claim in July 2018 that the defendant had not provided all the relevant facts relating to the claim that the making of certain changes involved a breach of a legitimate expectation arising from a past practice of public consultation. Permission having been granted, the defendant is under an obligation to provide sufficient information to enable the court to assess the challenge. That obligation has been recognised since at least 1986, see R v Lancashire County Council ex p. Huddleston [1986] 2 All E.R. 941. The defendant had, it seems, understood, or decided to treat, the claim as a claim that an expectation arose out of a practice of consultation based on consultations conducted in 2010, 2013 and 2015. I doubt, on a fair reading of the claim form, that the claim was so limited. In any event, if a defendant understands, or chooses to read, the claim in a limited way, and thereafter limits the information provided pursuant to its duty of candour accordingly, it is appropriate for a defendant to tell the court in its evidence what it has done. Ideally, that will enable any issues in relation to disclosure to be dealt with in advance of the hearing. In the present case, the course taken by the defendant only emerged at the hearing itself and was not apparent from its evidence. In the event, that necessitated an adjournment to enable the defendant to provide relevant evidence. By a consent order dated 16 October 2018, a timetable was fixed to enable the parties to make submissions on that evidence by the end of October 2018. A hearing was fixed for 22 November 2018 to hear further oral submissions but the parties indicated that they considered that they had had sufficient opportunity to make submissions in writing and the hearing was, therefore, not required.
THE FACTUAL BACKGROUND – REGULATIONS MADE BETWEEN 1989 AND 2015
In view of the claim that there was a past practice of public consultation giving rise to an obligation to conduct a public consultation before making the changes relating to advance payment and record keeping, it is necessary to set out briefly the background relating to the way in which regulations providing for charging non-residents for NHS medical treatment have been made and amended. A fuller description is set out in the fourth witness statement of Ms Mia Snook.
Regulations introducing charging of overseas visitors were made in 1982. There was consultation with specific interested bodies on the details of the proposed scheme but there was no consultation with the public generally.
Between 1982 and 1989, amendments were made on various occasions to the 1982 Regulations. These amendments included, by way of example, increases in 1983 and 1984 in the prescribed charges for services. They also dealt with other matters.
The 1982 Regulations were replaced in 1989 with a new set of regulations. There was no public consultation on the proposed 1989 regulations which, it seems, largely consolidated the 1982 regulations and the amendments made to them.
Between 1989 and 2003, amendments were made to the 1989 regulations on various occasions. These included, by way of example, amendments in 1994 which, amongst other things, removed the exemption from charging for services provided in a dental or ophthalmic emergency department. There was no public consultation on the changes made between 1989 and 2003.
In 2003, the defendant undertook a public consultation for the first time. He consulted on seven proposed amendments to the category of persons exempt from charging. Amendments giving effect to the seven proposed changes were made by regulation in 2004. The amending regulations made in 2004 also made certain changes which had not been the subject of consultation in 2003. These were changes exempting accident and emergency services provided at walk-in centres from charges, providing power to exempt specified overseas visitors from charging on humanitarian grounds and adding one medical condition to the list of conditions exempt from charges.
There was intended to be a public consultation in 2004 on whether to exempt treatment for a particular medical condition (Severe Acute Respiratory Syndrome or SARS) from charging but, it seems, the consultation was never carried out although SARS was added to the list of conditions exempt from charges.
A public consultation was carried out in 2004 on, amongst other things, whether to charge non-residents for NHS primary medical services. Following consultation, the defendant decided not to make any changes to charging for primary care.
Amendments to the 1989 regulations were made in 2004. Some of these had been the subject of the public consultation in 2003. Some had not. Amendments were also made in 2006, 2008 and 2009. These were not the subject of a public consultation (although, on it seems one occasion, other government departments were consulted).
In 2010, the defendant carried out a public consultation on five main areas concerning charging non-residents. These included (but were not limited to) consolidating the 1989 regulations, whether new guidance should be issued on certain topics, exemptions, and the provision of personal information by overseas visitors. The departmental response to the consultation indicated that two further modifications, not the subject of public consultation, would be included in any amendments, namely to exempt participants in the 2012 Olympic Games from charges and redefining the circumstances in which the exemption for treatment provided in connection with pandemic flu arose. The 1989 regulations were replaced by regulations made in 2011. These regulations also included the matters which were the subject of public consultation in 2010 and the two matters (the changes relating to participants in the 2012 Olympic Games and pandemic flu) which had not been the subject of public consultation.
In 2013, the defendant undertook a public consultation on migrant access and their financial contribution to NHS provision in England. The consultation was entitled “Sustaining services, ensuring fairness”. The response of the Department of Health to that consultation was published in December 2013. The National Health Service (Charges to Overseas Visitors) Regulations 2015 (“the 2015 Regulations”) were made setting out the basic framework for charging overseas visitors described below.
THE...
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