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High Court rejects challenge to NHS charging rules for overseas visitors

10/12/18

R (MP) v Secretary of State for Health and Social Care [2018] EWHC [3392] (Admin)

The Administrative Court (Lewis J) has rejected a challenge to amendments to the regulations for charging ‘overseas visitors’ (those not ordinarily resident in the UK) for NHS services.

The claimant sought judicial review of the National Health Service (Charges to Overseas Visitors) Amendment Regulations 2017 (“the 2017 Regulations”).  Those regulations enshrinedinto law that (i) charges need to be paid in advance of the provision of treatment that is not urgent or immediately necessary, (ii) NHS trusts are required to record the fact that a person is an overseas visitor liable to be charged, and (iii) liability to pay charges is extended to cover certain services provided in the community (whereas charging previously related only to services provided by NHS bodies in or under the direction of a hospital).

The claimant contended that (i) and (ii) above were introduced without public consultation and were unlawful for that reason. He also contended that the Secretary of State failed to discharge his duties under section 149 of the Equality Act 2010, or his duties under section 1B and 1C of the National Health Service Act 2006 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 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 court held that:

(1)        Although the Secretary of State chose to consult on some aspects of the changes reflected in the 2017 Regulations, including change (iii) mentioned above, it did not follow that he was also obliged to consult on changes (i) and (ii), and his failure to do so did not make the consultation unfair.

(2)        Despite there having been various previous consultations in relation to charging, there was not a settled and uniform practice of public consultation before exercising the power to make regulations relating to the making and recovery of charges for NHS services provided to persons not ordinarily resident in the United Kingdom. There was certainly no unequivocal practice of public consultation such as to give rise to a legitimate expectation of consultation.

(3)        The Secretary of State complied with the public sector equality duty under section 149 of the Equality Act 2010, and with his duties under sections 1B and 1C of the NHS Act 2006.  His assessment was that even though the proposals would, in different ways, affect particular groups with particular protected characteristics more, that was justified as the measures contributed in a proportionate way to a legitimate aim, namely the sustainability of the NHS.

(4)        It was not arguable that the Secretary of State had failed to take reasonable steps to acquire the information relevant to any consideration which was relevant to his decision (Secretary of State for Education v Tameside [1977] AC 1014 at 1065B-C). It was for the Secretary of State to decide the manner and intensity of the inquiries: see R (Khatun) v Newham London Borough Council [2005] QB 37 at paragraph 35, and the court would therefore not interfere unless the measures taken to obtain information were irrational. Permission to argue this ground of challenge was therefore refused.

A link to the judgment is available here.

Andrew Henshaw QC appeared for the Secretary of State for Health and Social Care.