MP, R (On the Application Of) v Secretary of State for Health And Social Care

The appellant, MP, had the misfortune to learn in 2015 that he was suffering from a form of blood cancer. That same year, he was refused indefinite leave to remain in the United Kingdom despite having lived here for very many years. He has since succeeded in an appeal to the First-tier Tribunal (Immigration and Asylum Chamber), but his immigration status is still subject to a degree of uncertainty because of a pending appeal to the Upper Tribunal by the Home Secretary. The result has been that MP has been viewed as an “overseas visitor” and so asked to pay large sums for treatment he has received from the National Health Service (“the NHS”).

The present appeal relates to provisions relating to advance payment and the recording of certain information which were included in the National Health Service

Regulations providing for overseas visitors to be charged for NHS treatment were first introduced in 1982. In 1989, new regulations replaced those of 1982 and consolidated revisions to the 1982 regulations which had been effected in the interim. Over the succeeding years, the 1989 regulations were amended in various respects and, in 2011, they were superseded in their entirety by the National Health Service (Charges to Overseas Visitors) Regulations 2011. Those regulations were in turn replaced in

The 2017 Regulations, which are the focus of the present appeal, amended the 2015 Regulations. Both sets of regulations were made pursuant to section 175 of the

Several other provisions of the 2006 Act provide for prior consultation. Thus, section 251, which enables the Secretary of State to make regulations in relation to the processing of prescribed patient information, provides by subsection (9) that, before making any regulations under the section, the Secretary of State “must, to such extent as he considers appropriate in the light of the requirements of section 252, consult such bodies appearing to him to represent the interests of those likely to be affected by the regulations as he considers appropriate”. Provision for consultation is also to be found in section 25 (relating to the establishment of NHS Trusts) and section 28 (relating to the establishment of Special Health Authorities). In contrast, no such requirement is included in section 175.

In their original form, the 2015 Regulations stipulated that a “relevant NHS body” must make and recover charges for any “relevant services” provided to an “overseas visitor” (i.e. “a person not ordinarily resident in the United Kingdom”). By regulation

However, Parts 3 and 4 of the 2015 Regulations provided respectively for certain services and certain “overseas visitors” to be exempt from charges. There was to be no charge, for example, for accident and emergency services, family planning services, services provided for the diagnosis and treatment of a condition listed in schedule 1 or, by regulation 9(b), “services provided otherwise than at, or by staff employed to work at, or under the direction of, a hospital”. Overseas visitors exempt from charges included refugees, asylum seekers, “looked after children” and victims of human trafficking. There was also an exemption in respect of services covered by a reciprocal agreement with one of the countries or territories specified in schedule 2.

On 7 December 2015, the Government launched a public consultation on the extension of charging overseas visitors and migrants using the NHS in England, with responses to be submitted by 7 March 2016. The paper explained that it was the

One of the proposals on which the consultation paper invited comments was “to standardise the rules so that NHS-funded care is chargeable to non-exempt overseas visitors wherever, and by whomever, it is provided”. The paper did not include any proposal to change the law in respect of advance payment for services which were chargeable under the 2015 Regulations nor to introduce any requirement to record status as an overseas visitor against a person’s NHS number.

The Government published its response to the consultation on 6 February 2017. This explained that the Government intended “to proceed with the extension of charging overseas visitors for most NHS services they can currently access for free, although this will be taken in a staged approach” and detailed ways in which it intended to amend the law from April 2017 in this context. The document then said this:

to charge overseas visitors upfront and in full for any care not deemed by a clinician to be ‘immediately necessary’ or ‘urgent’ and/or cease providing such non-urgent care where payment is not received in advance of treatment beginning

require relevant NHS bodies to identify and flag an overseas visitor’s chargeable status, starting with NHS trusts ….”

The 2017 Regulations were made by the Secretary of State on 17 July 2017, were laid before Parliament on 19 July and came into force later that year. The Regulations amended the definition of “relevant body” so as to extend to “any other person providing relevant services” and deleted regulation 9(b) from the 2015 Regulations. The charging regime was hence extended to a range of NHS-funded services provided in the community rather than in a hospital.

As foreshadowed in the response to the consultation, the 2017 Regulations also included provisions relating to advance payment and the recording of the fact that a person was an overseas visitor liable to be charged. Taking those in reverse order, a

the fact that the person has been determined to be an overseas visitor;

the date on which that determination was made; and

whether Part 4 (overseas visitors exempt from charges) provides for no charge to be made.”

As regards advance payment, regulation 3 of the 2015 Regulations was amended to contain a new regulation 3(1A) as follows:

an immediately necessary service; or

an urgent service.”

“Immediately necessary service” and “urgent service” are defined in regulation 3(7) of the 2015 Regulations, as amended by the 2017 Regulations. “Immediately necessary service” means:

a person who is pregnant;

a person who has recently given birth; or

a baby; and

to save the recipient’s life;

to prevent a condition becoming immediately lifethreatening; or

to prevent permanent serious damage to the recipient from occurring”.

The evidence indicates that the advance payment and recording of information requirements which came to be included in the 2017 Regulations had not been under consideration when the 2015 consultation was launched. Ms Mia Snook of the Department of Health and Social Care has explained in a witness statement that these proposals were developed following an inter-departmental “deep dive” review of best practice in charging overseas visitors which was conducted in July 2016 and the preparation by Ipsos MORI Social Research Institute of a report, “Overseas Visitor and Migrant NHS Cost Recovery Programme, Formative Evaluation – Final Report”, which the Department received in draft in August 2016.

In November 2017, the Government undertook to conduct a review of matters relating to the 2017 Regulations. Among other things, the review was into “the impact of the Amendment Regulations in respect of upfront charging, patient records, community services and non-NHS providers, with a particular focus on the extent to which there are any unintended consequences on delivery of care in the community for the most vulnerable, and how any such unintended consequences could be addressed”. There was engagement with a wide range of organisations, but not a full public consultation. Following the conclusion of the review at the beginning of June 2018, the Secretary of State decided that no changes were required to the 2017 Regulations themselves.

Over the years, the Secretary of State has on several occasions given providers guidance on charging. Guidance issued in 2004 included this:

Revised guidance issued in 2011 included these passages:

It was common ground before us that providers had to have regard to such guidance and to have clear reasons for departing from it (see R (Fisher) v North Derbyshire Health Authority [1997] EWHC 675 (Admin), (1997-98) 1 CCL Rep 150, at 163). On the other hand, there was also “discretion to allow treatment to be given when there [was] no prospect of paying for it” (see R (A) v Secretary of State for Health [2009] EWCA Civ 225, [2010] 1 WLR 279, at paragraph 77).

Before the Judge, MP challenged the advance payment and recording of information provisions in the 2017 Regulations on several grounds. For the purposes of the present appeal, only one of the issues which were before the Judge matters. The Judge identified this as follows in paragraph 60 of his judgment:

So far as the first limb of this issue is concerned (“The Way In Which The Consultation Was Carried Out”, in the Judge’s words), the Judge said this:

As regards the second limb (“whether there was a legitimate expectation”), the Judge concluded in paragraph 73:

After reviewing events from 1982 onwards, the Judge said in paragraph 84:

The Judge continued:

Before us, as before the Judge, Mr Jason Coppel QC, who appeared for MP with Mr Christopher Knight, contended that the advance payment and recording of information provisions in the 2017 Regulations should be quashed because the Secretary of State had failed to undertake due consultation before promulgating them. Mr Coppel advanced two alternative arguments. He submitted first that, having chosen to consult on changes to the 2015 Regulations, it was incumbent on the Secretary of State to do so fairly and hence to include in the exercise the proposals on advance payment and recording of information. Secondly, Mr Coppel said that the Secretary of State was anyway under a duty to consult on those proposals because a legitimate expectation of consultation had arisen from previous practice.

For his part, Mr Robert Palmer QC, who appeared for the Secretary of State with Mr Joseph Barrett, supported the Judge’s decision and maintained that the Secretary of State had had no obligation to consult on the advance payment and recording of information provisions of the 2017 Regulations. He further argued that, even if that were wrong, relief should be denied because section 31(2A) of the Senior Courts Act 1981 would apply and/or relief should be refused as a matter of discretion.

There are thus three issues:

Did the fact that the Secretary of State elected to undertake the 2015 consultation mean that he had to consult on the advance payment and recording of information requirements even if he would not otherwise have been obliged to do so?

Was the Secretary of State under a duty to consult on the advance payment and recording of information requirements because there was a legitimate expectation of consultation?

Should any relief be granted?

I shall take these in turn.

Where a public body embarks on a consultation, then, whether or not the law required there to be one, the consultation must be carried out properly. That means, as the Court of Appeal explained in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 at paragraph 108, citing R v Brent Borough Council, Ex p Gunning (1985) 84 LGR 168, that:

Proper consultation may sometimes require disclosure of materials which have come to light only since the consultation was launched. Thus, in Edwards v Environment Agency [2006] EWCA Civ 877, [2007] Env.L.R. 9, Auld LJ noted at paragraph 94:

We were also referred to R v East Kent Hospital NHS Trust, Ex p Smith [2002] EWHC 2640 (Admin), where Silber J had to consider whether there was an obligation to re-consult because the defendants wished to pursue proposals differing from those set out in the consultation document. Silber J said at paragraph 45:

The East Kent Hospital case was, however, one in which there was a statutory requirement to consult (see paragraph 31). It follows that there was an obligation to consult on the new proposals unless the consultation which had taken place on the original proposals sufficed. For the purposes of the issue I am now considering, in contrast, it is to be assumed that the Secretary of State did not have an independent obligation to consult on the advance payment and recording of information requirements. The East Kent Hospital case is not, therefore, directly in point.

As I have said, the Judge did not consider the fact that the Secretary of State had chosen to consult on other proposals relating to charging to mean that he had to consult on the advance payment and recording of information requirements, which he said were “discrete, self-contained issues”. Mr Coppel challenged this description. The advance payment and recording of information requirements were and are, he submitted, intrinsically linked to the subject of the 2015 consultation and the adoption of those requirements significantly affects the impact of the proposals which were consulted upon. In particular, consultees considering the potential extension of charging to community services were unaware that the charges would have to be paid upfront. Moreover, consultation on the advance payment and recording of information requirements could have been expected to excite considerable interest and opposition. The Judge, Mr Coppel argued, ought to have used fairness as the touchstone, but he failed to do so.

In my view, however, the Judge was correct.

Where a public body chooses to consult on a set of proposals, it has to conduct the consultation in respect of those proposals properly. The public body need not necessarily disclose, let alone consult on, other proposals it has in the same field. The focus is on what is required in the context of the particular proposals on which it has elected to consult. There might well be scope for criticism if a public body failed to disclose a plan it had which significantly affected a proposal on which it was consulting, but that would not be because of failure to consult on the plan as such but because of the plan’s implications for the subject matter of the consultation. Moreover, non-disclosure of the plan would be a ground for objecting to implementation of the proposal under consultation rather than the plan itself, at least if the plan did not represent a variant or development of a proposal in the consultation and there had not already been a sufficient opportunity to express views on issues raised by the plan.

Reference to fairness may be useful when determining whether proper consultation on a particular set of proposals requires consultees to be told of some different proposal. Fairness cannot of itself, however, act as a freestanding touchstone for when consultation on a proposal is necessary. Summarising the law in R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin), [2015] 3 All ER 261, the Divisional Court observed in paragraph 98(2) that there are four main circumstances in which a duty to consult may arise:

In the present case, it is far from evident that the plans to introduce the advance payment and recording of information requirements needed to be disclosed for the purposes of consultation on the proposals comprised in the 2015 consultation document. Neither requirement was yet under consideration in 2015 so there can be no question of the Secretary of State being vulnerable to criticism for failing to refer to them at that stage. Moreover, the advance payment requirement did not extend the circumstances in which an overseas visitor was to be liable to pay for services but dealt only with when payment was to be made, and even in that respect reflected previous guidance. As for the recording of information requirement, that was limited to NHS foundation trusts and NHS trusts and did not impose any new financial burden at all.

In any case, despite Mr Coppel’s submission that the additional requirements were and are intrinsically linked to the proposals comprised in the 2015 consultation, there is no challenge to implementation of any such proposal. What we are concerned with is the lawfulness of the advance payment and recording of information requirements. The Secretary of State not having elected to consult on these, it seems to me that the duty to carry out a consultation properly could not avail Mr Coppel unless the requirements could be said to represent variants or developments of proposals in the 2015 consultation. The fact that the Secretary of State had chosen to undertake the 2015 consultation could not otherwise, in my view, affect the lawfulness of the requirements.

However, the advance payment and recording of information requirements were not variants or developments of proposals in the 2015 consultation. Even if the requirements could be said to bear on the impact of those proposals, they were not tied to or derived from the proposals but were rather, in the Judge’s words, “discrete” and “self-contained”. Further, there is no basis on which we could interfere with the Judge’s conclusion to this effect. In fact, the requirements were always to apply across the board, not merely where charging was to be extended under the proposals which had been put out to consultation, and the requirements have been imposed even though the Secretary of State ultimately decided against extending charging to anything like the extent that had been contemplated in 2015.

In the circumstances, I do not think that the Secretary of State’s obligation to consult properly on the proposals which were the subject of the 2015 consultation provides any basis for impugning the advance payment and recording of information requirements.

In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (“CCSU”), which concerned the imposition of a bar on trade union membership for staff at GCHQ, Lord Fraser observed at 401 that legitimate expectation “may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue”. The test of whether the case before the House of Lords was of the latter type was, Lord Fraser said, “whether the practice of prior consultation of the staff on significant changes in their conditions of service was so well established by 1983 that it would be unfair or inconsistent with good administration for the Government to depart from the practice in this case”. Lord Fraser continued:

The expression “legitimate expectation” had, it seems, first appeared in the domestic case law in the context of procedural fairness (see United Policyholders Group v Attorney General of Trinidad and Tobago [2016] 1 WLR 3383, per Lord Carnwath, at paragraph 82) and CCSU was a case of that type. Lord Carnwath explained in United Policyholders Group v Attorney General of Trinidad and Tobago at paragraph 84 that the extension of legitimate expectation to substantive rather than merely procedural benefits remained controversial for some years, citing in this respect R v Secretary of State for the Home Department, Ex p Hargreaves [1997] 1 WLR 906, at 921.

In the meantime, Bingham LJ, sitting with Judge J in the Divisional Court, had said in R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd [1989] 1 WLR 1545 (“MFK”) at 1569 that, if it were to be successfully said that the Inland Revenue had represented that it would forgo tax, “the ruling or statement relied upon should be clear, unambiguous and devoid of relevant qualification”. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453, Lord Hoffmann cited these words approvingly at paragraph 60, and Lords Bingham, Rodger and Carswell also proceeded on the basis that a legitimate expectation claim depended on a “clear and unambiguous” representation (see paragraphs 73, 115 and 134). In R (Patel) v General Medical Council [2013] EWCA Civ 327, [2013] 1 WLR 2801, Lloyd Jones LJ, with whom Lord Dyson MR and Lloyd LJ agreed, accepted at paragraph 40 that the requirement had “certainly not been watered down as the principle of legitimate expectation has developed” and in R (Badger Trust) v Secretary of State for Environment, Food and Rural Affairs [2014] EWCA Civ 1405, [2015] Env LR 12 (“Badger Trust”), Bean LJ, with whom Davis and Christopher Clarke LJJ agreed, thought it uncontroversial that a “representation or promise which is clear, unambiguous and devoid of relevant qualification” is a requirement for establishing a substantive legitimate expectation (see paragraph 24).

Legitimate expectation was subjected to searching analysis by Laws LJ in R (on the application of Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755 (“Bhatt Murphy”). Having noted that there were two kinds of legitimate expectation, procedural and substantive, Laws LJ said this about the former:

Going on to comment on substantive expectation, Laws LJ said in paragraph 43:

Lord Wilson cited that last passage in R (Davies) v Revenue and Customs Commissioners [2011] UKSC 47, [2011] 1 WLR 2625 (“Davies”), in which it was

R (on the application of BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139 (“BAPIO”) and R (on the application of Brooke Energy Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2018] EWHC 2012 (Admin) (“Brooke Energy”) both involved an attempt to establish a duty to consult from past practice. In the former case, changes to the Immigration Rules were challenged on, among others, the basis that a practice of consultation had given rise to a duty to consult. Rejecting that argument, Sedley LJ said at paragraph 39:

Legitimate expectation contentions also foundered in Brooke Energy. Flaux LJ, sitting with Holgate J in the Divisional Court, explained in paragraph 53 that the claimant had contended in its amended statement of facts and grounds for a duty to consult because of an established practice of consultation, but had not pressed the point at the hearing. In this regard, Flaux LJ said:

The evidence shows that there are occasions when the Government has consulted over changes to the RHI scheme and occasions when it has not ….

It follows that there is no settled or uniform practice, let alone one that is unequivocal, such as to give rise to an expectation of consultation and no sense in which it could be said to be unfair for the Department not to have followed any such practice ….”

The most recent authority to which we were taken was R (on the application of Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213, [2020] 4 CMLR 17 (“Heathrow Hub”). In that case, the appellants argued that the Secretary of State had acted in breach of a legitimate expectation that he would select the “Extended Northern Runway” scheme to provide additional capacity at Heathrow

In the CCSU case, at 401, Lord Fraser of Tullybelton said that a ‘legitimate … expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue’ (our emphasis).

Furthermore, as subsequent decisions of the courts have made clear, a legitimate expectation will only be created if there has been some representation which is clear, unambiguous and devoid of relevant qualification: see the seminal decision of the Divisional Court in R. v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545, at 1569 (Bingham LJ).

The position has been recently explained in the Supreme Court decision of R. (on the application of Gallaher Group Ltd) v Competition and Markets Authority[2019] AC 96, in which the main judgment was given by Lord Carnwath JSC. Lord Carnwath considered earlier decisions, including the decision of the Court of Appeal in R. v Inland Revenue Commissioners, ex parte Unilever Plc [1996] STC 681. At paragraph 37 of his judgment Lord Carnwath referred to the ‘principles of legitimate expectation derived from an express or implied promise …’, thus recognising that what is required is a promise although it need not be an express one as it may be implied. At [40], Lord Carnwath said:

It is clear therefore, in our view, that, although an express promise is not required to found a legitimate expectation, there must be a consistent practice which is sufficient to generate an implied representation to the same effect.”

It will be seen that the Courts have used a variety of expressions when describing representations or practices that do, or do not, suffice to give rise to a legitimate expectation. In CCSU, Lord Fraser spoke of a “regular practice” that was “so well established … that it would be unfair or inconsistent with good administration … to depart from the practice”. In MFK, there was reference to a representation needing to be “clear, unambiguous and devoid of relevant qualification”, and similar formulations featured in the Bancoult, Patel, Badger Trust, Brooke Energy and Heathrow Hub cases. Judges have also referred to a practice having to be “sufficiently consistent to be regarded as more than an occasional voluntary act” (Sedley LJ in BAPIO), to an “unequivocal” or “plain” assurance (Laws LJ in Bhatt Murphy), to a practice being “so unambiguous, so widespread, so well-established and so wellrecognised as to carry within it a commitment” (Lord Wilson in Davies), to a practice being “sufficiently settled and uniform” (Brooke Energy) and to a “consistent practice” (Heathrow Hub).

Mr Coppel argued that procedural and substantive legitimate expectation need to be distinguished. On that footing, he submitted that the key authorities in the context of the present appeal are those dealing with the former, such as CCSU, BAPIO and Brooke Energy, and, as regards the last of these, he observed that the case was a bad one on the facts and that there was no reference in the judgments to either CCSU or BAPIO. The upshot, Mr Coppel maintained, is that a procedural legitimate expectation can be established by showing a “sufficiently settled and uniform practice”. There is, he said, no need for a practice to be “unequivocal”, and the Judge erred in law in approaching matters on the basis of such a requirement and by ignoring the qualifier “sufficiently” before “settled and uniform practice”.

In my view, however, the distinction which Mr Coppel sought to draw between procedural and substantive legitimate expectation is not justified. Mr Palmer argued that cases concerned with substantive legitimate expectation are also of relevance when considering procedural legitimate expectation, and I agree. The “clear, unambiguous and devoid of relevant qualification” formula first appeared when it was as yet still controversial whether legitimate expectation extended to substantive rather than merely procedural benefits and it and its analogues have not hitherto been held to apply only to substantive legitimate expectation. In fact, Flaux LJ referred to a practice needing to be “clear, unequivocal and unconditional” in Brooke Energy, a consultation case, and the Court of Appeal spoke of the “fundamental ingredients” of procedural and substantive legitimate expectation being the same in Heathrow Hub. It is true that in Badger Trust Bean LJ said that a “representation or promise which is clear, unambiguous and devoid of relevant qualification” is a requirement for establishing a substantive legitimate expectation, but he had no occasion to comment on whether procedural legitimate expectation also requires such a representation or promise.

The correct position appears to me to be as follows:

An express promise, representation or assurance needs to be “clear, unambiguous and devoid of relevant qualification” to give rise to any legitimate expectation, whether substantive or procedural;

A practice must be tantamount to such a promise if it is to found any legitimate expectation. It may be, as Sedley LJ said in BAPIO, that a practice does not have to be entirely unbroken, but it does have to be so consistent as to imply clearly, unambiguously and without relevant qualification that it will be followed in the future.

In the circumstances, I do not think the Judge can be said to have erred in referring either to “settled and uniform practice” (without adding “sufficiently”) or to “unequivocal practice”. Such expressions were apt to describe the sort of practice required to establish a legitimate expectation. For good measure, I do not read the judgment as treating an “unequivocal assurance” as crucial to the decision. Having concluded in paragraph 84 that there had not been a “settled and uniform practice”, the Judge went on to say that “[f]urthermore, and additionally, it would be difficult to regard any previous practice as giving rise to an unequivocal assurance that the two particular changes in issue … would be subject to public consultation”. Absence of an “unequivocal assurance” was thus an extra reason for rejecting legitimate expectation.

If, as I consider to be the case, the Judge cannot be said to have applied the wrong legal test, we must be cautious about interfering with the Judge’s evaluation. We should do so, as it seems to me, only if the Judge’s decision was an unreasonable one or can be seen to be wrong as a result of some identifiable flaw in his reasoning, “such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion” (see e.g. R (on the application of R) v Chief Constable of Greater Manchester [2018] UKSC 47, [2018] 1 WLR 4079, at paragraph 64, and also Re Sprintroom [2019] EWCA Civ 932, [2019] BCC 1031, at paragraphs 76 and 77). Absent such a deficiency, it is not for us to make our own assessment (compare in this respect the passage from Sedley LJ’s judgment in BAPIO quoted in paragraph 46 above).

The Judge considered in detail the extent to which the Secretary of State had consulted on regulations relating to the charging of overseas visitors. As he explained, there was public consultation on seven proposed changes to the regulations in 2003, on certain proposals in 2004, on five areas in 2010 and, in 2013, on matters leading to the 2015 Regulations. On the other hand, there was no consultation on the making of the 1982 regulations, on amendments to those regulations effected between 1982 and 1989, on the 1989 replacement regulations, on amendments made between 1989 and 2003, on two further proposals put forward in 2003 or on amendments made in 2006, 2008 and 2009. Moreover, although there was public consultation on five areas in 2010, the departmental response to the consultation indicated that two additional modifications, not consulted upon, would also be made. Thus, as the Judge noted in paragraph 82 of his judgment:

With regard, finally, to the 2015 consultation, the Judge said this in paragraph 83:

Mr Coppel did not dispute that changes to the charging regime have been made without consultation, but he pointed out that since 1989 almost all the changes on which there was no consultation have been either technical or to the advantage of patients. He argued that the Secretary of State could be seen to have consulted consistently on changes to the rules which would operate to the disadvantage of patients. Mr Palmer, in contrast, submitted that there is no logical basis on which to have regard to amendments to the regulations relating to overseas charging since 1995, but to ignore all the previous amendments; nor to have regard only to amendments that might be seen as “disadvantageous” to the patients directly affected by them.

On balance, it seems to me that we would not be justified in interfering with the

The conclusions I have reached on the previous issues mean that I do not need to consider the question of relief.

I would dismiss the appeal.

I agree.

I also agree.