The Queen (on the application of Carolyn Challis) v The Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 01 September 2022 |
| Neutral Citation | [2022] EWHC 2269 (Admin) |
| Docket Number | Case No: CO/3319/2020 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 2269 (Admin)
THE HON. Mrs Justice Steyn DBE
Case No: CO/3319/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
David Lock QC and Hannah Gibbs (instructed by Leigh Day) for the Claimant
Rory Dunlop QC and Benjamin Tankel (instructed by Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 20 and 21 June 2022
Approved Judgment
This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.30 AM on Thursday 1 September 2022.
A. Introduction
The English Infected Blood Support Scheme (‘EIBSS’), set up by the Secretary of State for Health and Social Care (‘the Secretary of State’), makes provision for payments to be made, subject to certain eligibility criteria, to those who contracted Human Immunodeficiency Virus (‘HIV’) or hepatitis C virus (‘HCV’) from or via NHS contaminated blood or blood products. It is administered by the National Health Service Business Services Authority (the interested party). The eligibility criteria for primary beneficiaries with HCV provide that to be eligible “ the individual must have been infected … with hepatitis C through treatment with NHS blood or blood products prior to September 1991 [‘the cut-off date’], or have acquired it from someone who was” (emphasis added).
By this application for judicial review, the claimant challenges a decision of the Secretary of State made on 10 January 2022 to maintain the cut-off date rule pending the outcome of the Infected Blood Inquiry (‘IBI’). The sole issue (aside from the question of the appropriate relief, if it arises) is agreed in these terms:
“Was the decision taken by the Defendant on 10 January 2022 (“the January Decision”) to maintain, pending the outcome of the IBI, the cut-off date rule irrational?”
B. The claimant
Ms Carolyn Challis was diagnosed with Hodgkin's disease in April 1992. In her first statement to the IBI she has given evidence that between 3 March 1992 and 1 July 1993 she received three blood transfusions from the National Health Service (‘the NHS’), during the course of her diagnosis and treatment for Hodgkin's disease. In August 1993, she was diagnosed with HCV.
On 10 December 2004, Ms Challis made an application for an ex gratia payment to the scheme, known as the Skipton Fund, which had been established that year for the benefit of those infected with HCV through treatment with NHS blood or blood products. The eligibility criteria for the Skipton Fund introduced the rule that the individual must have been infected with HCV through treatment with NHS blood (or blood products) prior to the cut-off date of September 1991 (or have acquired it from someone who was). On 14 December 2004, Ms Challis's application was rejected on the grounds that “ your doctor has advised us that the date of infection was in February 1992 and accordingly outside the scheme guidelines”.
On 18 February 2005, the Scheme Administrator for the Skipton Fund wrote to Ms Challis's doctor:
“As I am sure you will appreciate when the Department of Health established the fund last year expert, specialist advice was taken regarding the mechanical aspects of the fund and this included the screening of blood products for Hepatitis C. In this respect the information provided to the fund by the Blood T ransfusion Service was that all blood products after 5 th September 1991 [sic] used within the NHS will have been screened for Hepatitis C.
In the case of Ms Challis the application completed by Dr Cramp shows that her operations requiring blood products were dated February 1992 onwards, which is within the screened period. …” (Emphasis added.)
On 1 September 2006, the Skipton Fund established an appeal panel to which Ms Challis applied. On 26 March 2007, the appeal panel refused her appeal, observing:
“the treatment which you believe gave rise to your infection with Hepatitis C took place after 1 September 1991. Unfortunately this takes your application outside the terms of the Skipton Fund and we have no discretion to change the time limits.”
On 1 November 2017, the Secretary of State established the EIBSS which brings together and replaces five earlier ex gratia payment schemes, including the Skipton Fund. In September 2019, Ms Challis made an application for an ex gratia payment to the EIBSS. Her application was rejected on 22 October 2019. Ms Challis appealed on 31 December 2019. On 17 June 2020, the EIBSS Appeals Panel rejected her appeal (‘the 17 June 2020 decision’). In doing so, the panel accepted the evidence of Ms Challis's treating clinicians that she was infected with HCV “ as a result of the transfusions received during 1992 and 1993”. Nonetheless, her appeal was rejected on the ground that her application fell outside the scheme rules as she had contracted HCV after September 1991.
Although the eligibility criteria exclude Ms Challis from the ex gratia payment scheme, her individual situation is not the focus of this claim. She does not contend that the terms of any rational scheme must be such as to include her. Her complaint is that the Secretary of State made an irrational decision to exclude anyone infected on or after 1 September 1991 from the HCV payment scheme.
Mr Rory Dunlop QC emphasised at the outset of his submissions that the Secretary of State is acutely aware of the human context in which a large number of people have lost their lives or suffered debilitating illnesses. Whatever the causes, which are not a matter for this judgment, that is terrible. Mr Dunlop disavowed any intention, through the legal arguments presented in this case, to minimise her suffering. Ms Challis has undoubtedly suffered greatly. Nothing in this judgment should be taken to indicate a lack of sympathy for her suffering.
C. Procedural history
In her original claim form, the claimant sought to challenge the 17 June 2020 decision, which was described in the claim form as a “ decision by the secretary of state to bring into force and/or maintain the cut-off date as a rule within the EIBSS scheme”. The claimant advanced five grounds. On 22 March 2021, Mostyn J granted permission on grounds 2 and 3, refused permission on grounds 1, 4 and 5; and granted an extension of time to bring the application on ground 2. In respect of ground 2, by which the claimant contended the decision was irrational, Mostyn J observed:
“I am satisfied that Ground 2 is arguable. Whenever a point in time is used to define an entitlement there will always be hard cases that fall on the wrong side of the line. However it seems to me to be arguable that where the claimant does not know when she was infected, or whether she was infected by old blood, that the operation of the bright line in this case is arbitrary and irrational.”
The claimant filed a renewal notice in respect of grounds 1 and 5. Following the grant of permission by Mostyn J, and prior to the oral renewal hearing, the Secretary of State made a fresh decision to maintain the cut-off date pending the outcome of the IBI. A submission dated 19 November 2021 (‘the November Submission’) invited the Secretary of State to choose between two options: (i) maintain the cut-off date, at least until the IBI reports or (ii) start the process of reconsidering the cut-off date. Officials recommended the Secretary of State choose option (i) and he did so on 30 November 2021.
At a hearing before Jay J on 7 December 2021, the reasoning in the November Submission was criticised by the claimant. The defendant was ordered to file and serve a witness statement and to provide proportionate disclosure. The claimant was granted permission to amend her statement of facts and grounds to address the Secretary of State's fresh decision and evidence; and the claimant's renewed application for permission was re-fixed.
The criticisms of the November Submission prompted officials to ask the Secretary of State to reconsider the two options, and make a fresh decision, based on a further submission dated 6 January 2022 (‘the January Submission’). Officials again recommended the Secretary of State choose option (i) and he did so on 10 January 2022 (‘the January 2022 decision’).
At a hearing on 4 February 2022, Jay J granted permission on ground 4C and refused permission on grounds 1, 1A, 4A, 4B, 4D and 5. Although, overall, the claimant was granted permission on three grounds, the sole ground pursued is the rationality challenge in respect of the January 2022 decision (ground 4C). The head of challenge raised by both grounds 2 and 4C was rationality, and the claimant accepts that the January decision should be the focus of this judicial review. The claimant has chosen not to pursue her claim based on ground 3, having been refused permission on the parallel ground raised in respect of the January 2022 decision (ground 4D).
D. The facts
The government set up a series of ex gratia payment schemes starting in 1987 to provide support to those infected with HIV or HCV from NHS contaminated blood. The schemes cover some dependants of victims. The schemes commenced in 1987 with the Macfarlane Trust which made payments to people with haemophilia who had contracted HIV from NHS blood or blood products. From 1993, a new scheme, the Eileen Trust, was created to make payments to non-haemophiliacs who contracted HIV from NHS blood or blood products.
At that time, no equivalent payments were made...
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