The Queen (on the application of Cushnie) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Singh |
| Judgment Date | 05 November 2014 |
| Neutral Citation | [2014] EWHC 3626 (Admin) |
| Docket Number | Case No: CO/16731/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 November 2014 |
[2014] EWHC 3626 (Admin)
The Honourable Mr Justice Singh
Case No: CO/16731/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Karon Monaghan QC and Ben Chataway (instructed by Deighton Pierce Glynn Solicitors) for the Claimant
Marie Demetriou QC and Sarah Love (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 16–17 September 2014
Introduction
In this claim for judicial review the claimant challenges provisions of the National Health Service (Charges to Overseas Visitors) Regulations 2011 (SI 2011 No. 1556) ("the Regulations"), in particular regulation 11(c).
In brief, the Regulations provide, so far as material, that former asylum claimants are entitled to NHS treatment free of charge only if they are receiving accommodation and support from the Home Office pursuant to certain statutory provisions. The claimant submits that he would qualify for such support but for the fact that he is disabled and requires help with personal care. Under the relevant legislation this means that the support he receives must come not from the Home Office but from a local authority. As a result, the claimant contends, he has been refused important medical treatment free of charge which he cannot otherwise afford. His main grounds of challenge are that the Regulations discriminate against people like him on grounds of disability, contrary to Article 14, read with Article 8, of the Convention rights, as set out in Sch. 1 to the Human Rights Act 1998; and that, in making the Regulations, the Secretary of State breached the public sector equality duty in section 149 of the Equality Act 2010.
Originally the claim arose out of an alleged refusal of treatment in August 2013, when the Regulations were applied to the claimant by the relevant local health service authorities in the area where he was then living. The claim was therefore originally issued against the Bristol Clinical Commissioning Group and the University Hospitals Bristol NHS Foundation Trust. However, since he has been placed outside the Bristol area, the claim against the Commissioning Group and the Trust has been withdrawn. Permission to bring this claim for judicial review against the Secretary of State was given by Lang J at a renewed oral hearing on 21 May 2014.
The claimant's factual circumstances
The claimant is from Jamaica and has been in the United Kingdom since 2002 but has no leave to remain in this country. He initially entered the UK in 1998 as a visitor. His application for further leave to remain was refused in 1999. On 4 April 2000 he was arrested on drugs charges. On 6 August 2000 he was removed from the UK to Jamaica. However, he returned to the UK on 23 March 2002 using a false identity and was granted leave to enter for six months but overstayed. In December 2002 and April 2003 he was convicted of drugs offences and sentenced to a total of 5 years imprisonment. He absconded from prison in December 2004. He was re-arrested and sentenced to a further 24 weeks imprisonment for absconding.
The claimant is a former asylum seeker, since he made a claim for asylum in around 2006 which was unsuccessful. He has been released from immigration detention, most recently in October 2012. However, he is subject to a deportation order. It is common ground that he could not be removed because he was considered unfit to fly. There is medical evidence before the court to the effect that he remains unfit to travel.
In around November 2012 the claimant first began receiving support from a local authority, Bath and North East Somerset Council, under section 21 of the National Assistance Act 1948 (the 1948 Act).
Between January and August 2013 the claimant was in custody for drugs offences. Since his release he has continued to be provided with accommodation under section 21 of the 1948 Act. His support package includes a £45 per week subsistence payment to cover his essential living needs.
The claimant was first diagnosed as suffering from ankylosing spondylitis, which is a chronic form of arthritis, in 2005 but had suffered symptoms from around 2002. According to medical evidence before the court, the claimant has a very severe form of that disease. The disease leads to progressive fusion of the spine, resulting in decreased mobility, increased deformity and disability. Without intensive physiotherapy the claimant's disability is likely to worsen. The claimant also suffers from mental health problems and has a history of self-harm.
In July 2013 the claimant was assessed by a consultant rheumatologist as requiring treatment at a specialist rheumatology clinic. Funding was requested from the Bristol Clinical Commissioning Group but on 6 August 2013 this was refused by reference to the 2011 Regulations. This decision was adopted by the local NHS Foundation Trust and the claimant was refused further treatment from the clinic.
Since then the claimant has been moved by Social Services into new accommodation in Bath. He has renewed his request for secondary health care. As things stand it is unclear whether he will be provided with funding for that or otherwise provided with the treatment despite his inability to fund it. The circumstances in which it is permissible for a person in the claimant's position to be given NHS treatment even when he cannot pay for it upfront is a topic to which I will return later in this judgment.
Legislative framework
Section 1 of the National Health Service Act 2006 , so far as material, provides:
"(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to ensure improvement –
(a) in the physical and mental health of the people of England,
(b) in the prevention, diagnosis and treatment of physical and mental illness. …
(4) The services provided as part of the health service in England must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed."
Section 175 of the same Act gives power to the Secretary of State to make regulations as follows:
"(1) Regulations may provide for the making and recovery, in such manner as may be prescribed, of such charges as the Secretary of State may determine in respect of the services mentioned in subsection (2).
(2) The services are such services as may be prescribed which are –
(a) provided under this Act, and
(b) provided in respect of such persons not ordinarily resident in Great Britain as may be prescribed.
(3) Regulations under this section may provide that the charges may be made only in such cases as may be determined in accordance with the Regulations. …"
The relevant Regulations at the present time are the 2011 Regulations. In those Regulations the phrase "overseas visitor" is defined by the Interpretation Regulation (Regulation 2(1)) to mean a person not ordinarily resident in the United Kingdom.
Regulation 3, so far as material, provides:
"(1) A relevant NHS body must make and recover charges from the person liable under Regulation 4 where it provides an overseas visitor with relevant services and the condition specified in paragraph (2) applies.
(2) The condition specified in this paragraph is that the relevant NHS body having made such enquiries as it is satisfied are reasonable in all the circumstances, including in relation to the state of health of that overseas visitor, determines that the case is not one in which these Regulations provide for no charge to be made. …"
Regulation 4 provides that the person liable to pay charges under these Regulations is, unless an exception specified in that Regulation applies, the overseas visitor in respect of whom the relevant services are provided.
There are certain exemptions to the charging duty set out in part 3 of the Regulations. First there are certain types of services which are exempted. Regulation 6 provides that no charge may be made or recovered in respect of any relevant services provided to an overseas visitor which fall within the paragraphs then set out. Paragraph (a) covers accident and emergency services. Other Regulations provide exemptions in respect of certain types of person.
Regulation 11 is at the heart of the present proceedings for judicial review. It provides:
"No charge may be made or recovered in respect of any relevant services provided to an overseas visitor who –
(a) has been granted temporary protection, asylum or humanitarian protection under the immigration rules made under section 3(2) … of the Immigration Act 1971;
(b) has made an application, which has not yet been determined, to be granted temporary protection, asylum or humanitarian protection under those rules;
(c) is currently supported under section 4 or 95 of the Immigration and Asylum Act 1999; or
(d) is a child, taken into local authority care under the Children Act 1989."
At the heart of the present claim is the complaint that Regulation 11(c), although a welcome exemption, does not go far enough because it is argued that the claimant is in an analogous position to anyone supported under section 4 or 95 of the Immigration and Asylum Act (the 1999 Act) and yet is not protected by the exemption from charges in Regulation 11.
I turn therefore to the relevant provisions of the 1999 Act.
The interpretation provisions of section 94 provide that "claim for asylum" means a claim...
To continue reading
Request your trial
-
West Berkshire District Council Reading Borough Council v Department for Communities and Local Government
...Secretary [2007] EWHC 199 (Admin) at paragraphs 64–70 and the decision of Singh J in R (Cushnie) v Secretary of State for Health [2014] EWHC 3626 (Admin), [2015] PTSR 384 at paragraphs 95 to 117. 180 In the BAPIO case Stanley Burnton J accepted that before certain changes to the Immigration......
-
Friends of the Earth Ltd v Secretary of State for Business, Energy and Industrial Strategy
...v Secretary of State for the Home Department [2007] EWHC 199 (Admin) at [64] – [70]; ( R (Cushnie) v Secretary of State for Health [2015] PTSR 384 at [95] – [117]). The statutory framework Climate Change Act 2008 28 Part 1 of the Act deals with “carbon target and budgeting”. Section 1(1) pr......
-
R Marfo v Secretary of State for Health
...in the Regulations was disproportionate to that aim; and that the same high threshold was not crossed in R (on the application of Cushnie) v Secretary of State for Health [2014] EWHC 3626 (Admin) at paragraph 92 in the judgment of Singh J, who referred to the high threshold and the test tha......