Cushnie, R (on the Application of) v Secretary of State for Health

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since he has been placed outside the Bristol area, the claim against the Commissioning Group and the Trust has been withdrawn.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 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.

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 that it would be contrary to the United Kingdom’s obligations under the Refugee Convention, or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the UK. “Asylum-seeker” means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined.

Under section 95 the Secretary of State may provide, or arrange for the provision of, support for asylum-seekers or dependants of asylum-seekers who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed. Section 95(3) provides that for this purpose a person is “destitute” if

“(a)

he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or

(b)

he has adequate accommodation or the means of obtaining it but cannot meet his other essential living needs.”

As will be apparent from its wording, section 95, read with section 94, does not apply in the case of an asylum-seeker whose claim for asylum has been rejected. Such failed asylum-seekers are dealt with by section 4 of the 1999 Act, which provides:

“(1)

The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons -

(a)

temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act; …

(2)

The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if –

(a)

he was (but is no longer) an asylum-seeker, and

(b)

his claim for asylum was rejected.”

Subsection (4) makes it clear that expressions such as “asylum-seeker” and “claim for asylum” have the same meaning in this section as in Part 6 (as defined in section 94).

Subsection (5) empowers the Secretary of State to make regulations specifying criteria to be used in determining whether or not to provide accommodation to a person under section 4 and whether or not to continue to provide such accommodation. In particular the regulations may (pursuant to subsection (6)) provide for the continuation of the provision of accommodation for a person to be conditional upon his performance of or participation in community activities in accordance with arrangements made by the Secretary of State.

The relevant regulations made under the 1999 Act are the Immigration and Asylum (Provision of Accommodation to Failed Asylum-seekers) Regulations 2005 (SI 2005 No. 930).

The interpretation provision in Regulation 2 provides that “destitute” is to be construed in accordance with section 95(3) of the 1999 Act.

Regulation 3 provides that:

“(1)

Subject to Regulations 4 and 6, the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a person falling within section 4(2) or (3) of that Act are –

(a)

that he appears to the Secretary of State to be destitute, and

(c)

that one or more of the conditions set out in paragraph (2) are satisfied in relation to him.

(2)

Those conditions are that –

(a)

he is taking all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure;

(b)

he is unable to leave the United Kingdom by reason of a physical impairment to travel or for some other medical reason; … or

(e)

the provision of accommodation is necessary for the purpose of avoiding a breach of a person’s Convention rights, within the meaning of the Human Rights Act 1998.”

No regulations have been made setting out the criteria to be applied under section 4(1) of the 1999 Act. However, Home Office guidance states that the power under that subsection should not be exercised in favour of asylum seekers or failed asylum seekers (who may qualify under either section 95 or section 4(2)).

It is common ground that the scheme in sections 4 and 95 of the 1999 Act is one of last resort. In particular a failed asylum seeker will not be regarded as destitute so as to qualify for support under that Act if he is entitled to support under another statutory provision, including section 21 of the 1948 Act. I therefore turn to that provision.

Section 21 of the 1948 Act provides:

“(1)

Subject to and in accordance with the provisions of this part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct, shall, make arrangements for providing –

(a)

residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; …

(1A) a person to whom section 115 of the Immigration and Asylum Act 1999 (Exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely –

(a)

because he is destitute; or

(b)

because of the physical effects or anticipated physical effects, of his being destitute.”

By section 21(5) references to accommodation are to be construed as including reference to “board and other services”, such as help with subsistence.

The Secretary of State has issued directions under section 21(1) in the form of Local Authority Circular (93) (10). The effect of that circular is that, where the criteria in section 21(1)(a) are met, social services authorities are under a duty to provide accommodation to persons who are “ordinarily resident in that area” and to persons who are in urgent need thereof.

The circumstances in which assistance can be provided by a local authority under section 21 of the 1948 Act are subject to restrictions set out in Schedule 3 to the Nationality, Immigration and Asylum Act 2002. A number of paragraphs in that Schedule specify categories of person who are ineligible for such support: paragraphs 4-7 of the Schedule.

In particular paragraph 6 applies to a person who was (but is no longer) an asylum seeker and who fails to co-operate with removal directions issued in respect of him.

Paragraph 7 applies to a person if he is not an asylum seeker and is in the UK in breach of the immigration laws within the meaning of section 50A of the British Nationality Act 1981.

There is then an exception set out in Schedule 3 to the 2002 Act, which has the effect of bringing certain persons back into the scope of eligibility for support under (for example) section 21 of the 1948 Act. Those exceptions are to be found in paragraph 3 of Schedule 3. So far as material it is provided that:

“Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of –

(a)

a person’s Convention rights…”

In February 2010 the Department of Health issued a consultation paper on “Review of Access to the NHS by Foreign Nationals”. In the introductory chapter it was stated that:

“The regulations and guidance on NHS access and charging have to support the provision of health care that meets residents’ entitlements, public health and humanitarian obligations, while also protecting finite NHS resources, and supporting wider government strategy on migration. Administrative processes to manage access and implement charging also have to be practical, proportionate and cost effective, and professional clinical staff, whilst having responsibility to help ensure that the charging regime is upheld, should not be held accountable for administering immigration rules. Charges should be applied to non-UK residents in a rational, non-discriminatory, consistent and defensible way.”

Chapter 3 set out proposals for change to the charging regulations. It was noted that people currently seeking refuge or asylum were exempt from NHS charges while their claim was still outstanding and any appeal was ongoing. However, those whose claims had been refused (failed asylum seekers) were chargeable for most treatment after their full appeals process had been exhausted. The consultation paper continued:

“We are not proposing any change to these arrangements for the vast majority of failed asylum seekers. We recognise that many failed asylum seekers have limited resources, meaning that debts to the NHS are often written off and the cost of administering charges is likely to outweigh the income recovered, and that some untreated non-urgent conditions may lead to subsequent more costly, urgent provision for which costs would be unlikely to be recoverable. However, automatic entitlement to full, free secondary care, including both urgent and non-urgent treatment, would not be consistent with the denial of leave to remain and may act as both a deterrent to leaving the UK on a voluntary basis and an incentive to others to travel here illegally.

Similarly, we are proposing no change to the current position for other people, such as illegal entrants and over-stayers, who have no lawful basis of stay in the UK and so are subject to charges.

We are proposing a specific exception for those Failed Asylum Seekers who are co-operating with UKBA and are supported under sections 4 or 95 of the Immigration and Asylum Act 1999:

•

Section 4 support is available to those adults who are taking reasonable efforts to leave the UK and where there is a genuine recognised barrier to leaving (such as being unable to obtain a passport). Support is provided in the form of accommodation and food vouchers/payment cards … Section 4 and section 95 support does not currently include free health care. The extension of free health care to these groups therefore is wholly consistent with this element of the government’s migration and asylum policy.”

The Secretary of State has issued guidance as to how relevant NHS bodies should deal with overseas visitors and charging: the current version, which was updated in October 2013, is Guidance on implementing the Overseas Visitors Hospital Charging Regulations. Chapter 4 of the guidance sets out when to provide NHS hospital treatment to those not entitled to it free of charge.

Para 4.2 states that para 2.3 sets out the legal obligations under the charging regulations of all relevant NHS bodies. However, para 4.3 goes on to state that such bodies must also ensure that treatment which is “immediately necessary” is provided to any patient, even if they have not paid in advance. It goes on to state that, whilst treatment provided in an accident and emergency department is free to any person, further emergency treatment after admission as an in-patient is not. The following sentence is underlined in the same passage: “Failure to provide immediately necessary treatment may be unlawful under the Human Rights Act 1998.” The passage then goes on to state that urgent treatment should also be provided to any patient, even if deposits have not been secured. Non-urgent treatment should not be provided unless the estimated full charge is received in advance of treatment. The following paragraphs in chapter 4 then give more detailed guidance as to the meaning of those concepts.

Para 4.5 deals with “immediately necessary treatment”, that is treatment which a patient needs to save his life, or to prevent a condition from becoming immediately life-threatening or promptly to prevent permanent serious damage from occurring.

“Urgent treatment” is defined in para 4.8 to be that which clinicians do not consider immediately necessary but which nevertheless cannot wait until the person can be reasonably expected to return home. That passage continues:

“Clinicians may base their decision on a range of factors, including the pain or disability a particular condition is causing, the risk that delay might mean a more involved or expensive medical intervention being required, or the likelihood of a substantial and potentially life-threatening deterioration occurring in the patient’s condition if treatment is delayed until they return to their own country.”

“Non-urgent treatment” is defined by para 4.11 to mean routine elective treatment that could wait until the patient can return home.

Para 4.12 makes it clear that the decision on whether a patient’s need for treatment is immediately necessary, urgent or non-urgent “is only for clinicians to make”. However, the same passage continues to state:

“In determining whether or not a required course of treatment should proceed even if payment is not obtained in advance, or if it can safely wait until the patient can return home (i.e. whether it is urgent or non-urgent), clinicians will need to know their estimated return date.”

Para 4.10 of the guidance makes it clear that treatment is not made free of charge by virtue of being provided on an immediately necessary or urgent basis. It continues:

“Charges found to apply cannot be waived.”

There then appears a section on how to determine when an overseas visitor patient can reasonably be expected to return home. In particular para 4.14 states:

“The general principle is that overseas visitors should either return home for treatment that is not immediately necessary or pay in advance of receiving it. However, in some cases it may not be possible or reasonable to expect a person to return home quickly enough for treatment. Clinicians will need to know when a patient can reasonably be expected to return home to decide if their need for NHS hospital treatment is urgent or if it can safely await their return.”

In R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 the House of Lords had to consider the respective duties imposed on local authorities by section 21 of the 1948 Act and on the Secretary of State, through the agency of the National Asylum Support Service (NASS), under section 95 of the 1999 Act. The principal opinion was delivered by Lord Hoffmann. At para 29 Lord Hoffmann drew a distinction between two classes of asylum seekers:

“The first class were the able bodied asylum seekers who qualified solely because, being destitute, they were already or were likely to become in need of care and attention. … I shall call them ‘the able bodied destitute’, who came within section 21 solely because they were destitute.

The second class were asylum seekers who had some infirmity which required the local social services to provide them with care and attention, but who would not ordinarily have needed to be provided with accommodation under section 21 because it was available in other ways, for example, under the homelessness legislation. They would not have come within the section 21 duty because they would not have satisfied the third condition which I have quoted from the judgment of Hale LJ in Wahid’s case [2002] EWCA Civ 287 at [30]:

‘Care and attention which is needed must not be available otherwise than the provision of accommodation under section 21. I shall call this class “the infirm destitute”.’ ”

At para 31, having referred to the White Paper which preceded the 1999 Act, Lord Hoffman noted the introduction of the new subsection (1A) in section 21 of the 1948 Act, which was inserted by section 116 of the Immigration and Asylum Act 1999.

At para 32, Lord Hoffmann said:

“The use of the word ‘solely’ makes it clear that only the able bodied destitute are excluded from the powers and duties of section 21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy. They would not of course need accommodation, but that is not where section 21 (1A) draws the line.”

At para 33 Lord Hoffmann referred to section 95(1) in parallel with the amendment of section 21. At para 35, he said:

“It will be seen that while section 21(1A) removes only the able bodied destitute from the duty of the local social service departments, section 95(1) appears prima facie to give NASS power to accommodate all destitute asylum seekers, whether able bodied or infirm. It is this apparent overlap between the powers of NASS and the duties of the local authority which has given rise to this appeal.”

In answering the questions which arose for decision in that case, at para 49 Lord Hoffmann concluded:

“…The issues before your Lordships are narrow. The present case has been argued throughout on the footing that Mrs Y-Ahmed has a need for care and attention which has not arisen solely because she is destitute but also (and largely) because she is ill. It is also common ground that she has no access to any accommodation in which she can receive care and attention other than by virtue of section 21 or under part VI of the 1999 Act. The first question for your Lordships is whether in those circumstances she comes prima facie within section 21(1)(a) and, if so, the second is whether she is excluded by section 21(1A). In my opinion, the answers to these questions are Yes and No respectively. The third question is whether the existence of a duty under section 21 excludes Mrs Y-Ahmed from consideration for asylum support. Again, in agreement with the Court of Appeal, I think that the answer is Yes.”

On the basis of that authority the claimant submits that the only reason why he had to be supported by a local authority under section 21 of the 1948 Act is that he has a disability. To use Lord Hoffmann’s terminology, the claimant is “infirm” rather than “able-bodied.” Otherwise, he submits, he would receive support under the 1999 Act.

In the claimant’s skeleton argument there were four grounds advanced:

At the hearing before me counsel for the claimant fairly accepted, without formally abandoning either ground 1 or ground 4, that they add little if anything to the other grounds. Accordingly, I propose to deal with the complaints which are at the heart of this claim for judicial review: ground 2, which alleges a breach of Article 14, and ground 3, which alleges a breach of the public sector equality duty.

It is common ground for the purposes of the present claim that the facts of the case fall within the ambit of Article 8. Accordingly it is further common ground that the claimant is in principle entitled to rely upon Article 14.

It is also common ground that disability is a ground of discrimination which is within the scope of Article 14, particularly because it falls within the concept of “other status”.

On behalf of the claimant it is submitted that the Regulations discriminate on grounds of disability directly. The Secretary of State denies that there is such direct discrimination. However, it is accepted on behalf of the Secretary of State that there is indirect discrimination on grounds of disability.

I accept the Secretary of State’s submission in this regard. In my judgment there is indirect discrimination but not direct discrimination in the present case. This is because Regulation 11(c) does not in terms distinguish between persons on the ground of disability. Nor is that its necessary effect in all cases. Ultimately this question may not be of crucial significance, since it is common ground that, in the context of Article 14, both direct and indirect discrimination are in principle capable of being justified.

Accordingly the central issue which divides the parties in this context is that of justification. It is common ground that discrimination under Article 14 will be justified if it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

There can be no doubting the importance of the principle of equality. The reasons for this were emphasised by Baroness Hale of Richmond in Ghaidan v Godin-Mendoza [2004] 2 AC 557, at para 132. She emphasised in particular that democracy is founded on the principle that each individual has equal value. Treating some people as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being. As Baroness Hale concluded in that paragraph:

“Democracy values everyone equally even if the majority does not.”

At one time it was thought that the appropriate standard of review in discrimination cases under Article 14 depends on the nature of the ground of alleged discrimination: certain classes were regarded as “suspect”, terminology which was adopted from jurisprudence on the Fourteenth Amendment to the US Constitution.

In R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173 the House of Lords had to consider the application of Article 14 of the Convention rights in the context of various types of social security benefit. It was contended that various pieces of legislation breached the principle of equality in Article 14, read with the right to peaceful enjoyment of possessions in Article 1 of the First Protocol, either on the ground of residence or on the ground of age.

At para 14 Lord Hoffmann said that discrimination means a failure to treat like cases alike. There is discrimination only if the cases are not sufficiently different to justify the difference in treatment. At para 15 he continued that whether cases are sufficiently different is partly a matter of values and partly a question of rationality. He said:

“Article 14 expresses the Enlightenment value that every human being is entitled to equal respect and to be treated as an ends and not a means. Characteristics such as race, caste, noble birth, membership of a political party and (here a change in values since the Enlightenment) gender, are seldom, if ever, acceptable grounds for differences in treatment. In some constitutions, the prohibition on discrimination is confined to grounds of this kind and I rather suspect that Article 14 was also intended to be so limited. But the Strasbourg Court has given it a wide interpretation, approaching that of the Fourteenth Amendment [to the US Constitution], and it is therefore necessary, as in the United States, to distinguish between those grounds of discrimination which prima facie appear to offend our notions of the respect due to the individual and those which merely require some rational justification…”

At para 16 Lord Hoffmann said:

“There are two important consequences of making this distinction. First, discrimination in the first category cannot be justified merely on utilitarian grounds, eg. that it is rational to prefer to employ men rather than women because more women than men give up employment to look after children. That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit. On the other hand, differences in treatment in the second category (eg. on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest. Secondly, while the Courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.”

On behalf of the Secretary of State in the present case emphasis is placed on two passages in Carson. First at para 41, where Lord Hoffmann said:

“Mr Gill emphasised that the 25^th birthday was a very arbitrary line. There could be no relevant difference to a person the day before and the day after his or her birthday. That is true, but a line must be drawn somewhere. All that is necessary is that it should reflect a difference between the substantial majority of the people on either side of the line. If one wants to analyse the question pedantically, the person one day under 25 is in an analogous, indeed virtually identical, situation to a person aged 25 but there is an objective justification for such discrimination, namely the need for legal certainty and a workable rule. But your Lordships are likely to reach what I consider to be the obvious answer without having to resort to such formal reasoning. …”

In similar vein at para 45, Lord Rodger of Earlsferry said:

“… The scheme also had certain administrative advantages. In my view, having regard to these and other factors, it was open to ministers and Parliament, in the exercise of a broad political judgment, to differentiate between the two groups and set different levels of benefit for them. Drawing the bright demarcation line at 25 was simply one part of that exercise. It follows that the difference in treatment … easily withstands scrutiny and there is no unlawful discrimination in terms of Article 14.”

In his opinion, at paras 55-60, Lord Walker of Gestingthorpe addressed specifically the question of whether certain grounds of discrimination are “suspect” grounds and referred extensively to the jurisprudence of the US Supreme Court in that regard. At para 58 he observed that the European Court of Human Rights, although not using the terminology of “suspect” classes often refers to “very weighty reasons” being required to justify discrimination on particularly sensitive grounds.

One of the Strasbourg decisions in which there is reference to the need for “very weighty reasons” to be established was Gaygusuz v Austria (1997) 23 EHRR 364. That case concerned the context of social security in particular a form of emergency assistance which depended upon a national insurance scheme in Austria. The applicant was a Turkish national who was refused an advance on his pension in the form of such emergency assistance because he did not have Austrian nationality. He brought a complaint under Article 14 of the Convention read with Article 1 of the First Protocol. At para 42 of its judgment the European Court of Human Rights said that “very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention”.

This point was picked up by the House of Lords in A v Secretary of State for the Home Department [2005] 2 AC 68, at para 49 in the opinion of Lord Bingham of Cornhill. That was the well known decision in which a declaration of incompatibility was issued by the House of Lords in respect of Part 4 of the Anti Terrorism, Crime and Security Act 2001, which had permitted the Secretary of State to authorise the detention without charge of suspected international terrorists but only if they were foreign nationals. That distinction was regarded as unacceptable discrimination on the grounds of nationality. In an important passage, at para 68 Lord Bingham emphasised that:

“… Any discriminatory measure inevitably affects a smaller rather than larger group, but cannot be justified on the ground that more people would be adversely affected if the measure were applied generally. What has to be justified is not the measure in issue but the difference in treatment between one person or group and another. What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another. To do so was a violation of Article 14. …” (Emphasis added)

Counsel for the Secretary of State before me accepted that important principle. However, she emphasised that a number of authorities since that time, both in Strasbourg and in the domestic courts, appear to have developed, and perhaps modified, the appropriate standard of review, at least in cases concerned with social and economic policy.

In Stec v United Kingdom (2006) 43 EHRR 1017 the Grand Chamber of the European Court of Human Rights considered a complaint that there had been sex discrimination in the context of certain social security benefits. As the Court observed at para 51 of its judgment, contracting states enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. At para 52 the Court continued:

“The scope of this margin will vary according to the circumstances, the subject matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’.”

As will be seen later, the test of “manifestly without reasonable foundation” was originally formulated in cases where it was alleged that there had been a violation of the right to peaceful enjoyment of possessions in Article 1 of the First Protocol. Such cases had nothing to do with alleged discrimination, let alone discrimination on a ground which was to be treated as “suspect” such as nationality or gender. Nevertheless, it is clear that the test has now become applicable in Article 14 cases too, even where what would have been regarded as a suspect class is concerned.

The above observation in Stec was picked up by the House of Lords in R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 3111, in particular at para 54 in the opinion of Lord Neuberger of Abbotsbury:

“… Policy concerned with social welfare payments must inevitably be something of a blunt instrument, and social policy is an area where a wide measure of appreciation is accorded by the ECtHR to the State; see the judgment in Stec 43 EHRR 1017, para 52. As Lord Bingham said about a rather different statute, ‘[a] general rule means that a line must be drawn and it is for Parliament to decide where’, and this ‘inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial’…”

In Humphreys v Commissioners of Revenue and Customs [2012] 1 WLR 1545 the Supreme Court had to consider the application of these principles in the context of alleged sex discrimination in relation to child tax credit. The main judgment for the Court was given by Baroness Hale of Richmond JSC. After referring to the decision of the Grand Chamber in Stec, at para 17, Baroness Hale observed that the phrase “manifestly without reasonable foundation” dates back to James v United Kingdom (1986) 8 EHRR 123, para 46, which concerned the compatibility of leasehold enfranchisement with Article 1 of the First Protocol. However in the Stec case, as she continued, the Court clearly applied this test to the State’s decision as to when and how to correct inequality between the sexes in State pension ages, which had originally been introduced to correct the disadvantaged position of women.

At para 19 Baroness Hale observed that, in Carson, both Lord Hoffmann and Lord Walker had drawn a distinction between discrimination on “suspect” grounds such as race and sex and discrimination on grounds such as place of residence and age. She continued:

“But that was before the Grand Chamber’s decision in the Stec case… It seems clear from Stec, however, that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the ‘manifestly without reasonable foundation’ test in the context of state benefits. The same principles were applied to the sex discrimination involved in denying widow’s pension to men in Runkee v United Kingdom [2007] 2 FCR 178, para 36. If they apply to the direct sex discrimination involved in the Stec and Runkee cases, they must, … apply a fortiori to the indirect sex discrimination with which we are concerned.”

At para 20 Baroness Hale noted that in fact the appellant in that case did not argue for anything other than the test established in the Stec and RJM cases. Nevertheless, as Baroness Hale observed at para 22 of her judgment, “the fact that the test is less stringent than the ‘weighty reasons’ normally required to justify sex discrimination does not mean that the justifications put forward for the rule should escape careful scrutiny. On analysis, it may indeed lack a reasonable basis. …”.

More recently, in R (MA) v Secretary of State for Work and Pensions [2013] PTSR 1521 the Court of Appeal had to consider the application of these principles in the context of a challenge to the amendment to the Housing Benefit Regulations which created the so-called “bedroom tax”. Giving the main judgment for the Court, Lord Dyson MR, at paras 49-60, considered the appropriate standard of review. In particular, at paras 53-54, Lord Dyson rejected the submission that the “manifestly without reasonable foundation” test was not applicable because the discrimination in issue lacked the elements of “high policy” which were said to be in play in the Humphreys case. Lord Dyson was of the view that there was no hint of that distinction in the Stec case or the Humphreys case. Furthermore, at para 54, he said that:

“Although the precise detail and scope of the Regulations may not be matters of high policy in themselves, they form an integral part of what was unquestionably a high policy decision. The particular decisions taken to give effect to the high policy decision cannot be dismissed as technical detail. These decisions involved policy choices even if at a lower level than the overarching decision to reduce HP by focussing on the problem of ‘under-occupancy’ of accommodation.”

At para 55 he continued that:

“This area of the law would suffer from undesirable uncertainty if the test were to be ‘manifestly without reasonable foundation’ where there is a challenge to high policy decisions and a less stringent test where the challenge is to lower level policy decisions. I see no warrant for taking this course.”

Nevertheless, at para 56, Lord Dyson repeated what Baroness Hale had made clear in the Humphreys case, at para 22: this does not mean that the justifications put forward for a rule should escape “careful scrutiny”. At para 60 of his judgment Lord Dyson observed that this is particularly important where the Court is dealing with a vulnerable group (disabled persons) and the discrimination is closely connected with their disabilities. The Court in that context was “obliged to scrutinise carefully the reasons advanced by the Secretary of State in justification of his scheme”.

At para 80 Lord Dyson said:

“I would emphasise the following … . [T]he ‘manifestly without reasonable foundation’ test is a stringent test. I would not go so far as to say that all the Secretary of State has to show is that his policy is not irrational, although Lord Neuberger in the RJM case … perhaps came quite close to that. The question is simply whether the discrimination has an objective and reasonable justification. I accept that the Court must scrutinise carefully the justification advanced. But it is not sufficient to expose some clause in the scheme or to conclude that the justification is not particularly convincing. The stringent nature of the test requires the Court to be satisfied that there is a serious flaw in the scheme which produces an unreasonable discriminatory effect.”

It was common ground before me that the appropriate standard of review is not whether there are “very weighty reasons” put forward by the defendant but rather whether the discriminatory measure under challenge is “manifestly without reasonable foundation”. Nevertheless, the claimant emphasises, as was emphasised in the authorities which I have already cited, that the fact that the test is less stringent than the one normally required does not mean that the justifications put forward should escape careful scrutiny: on analysis they may indeed lack a reasonable basis.

As I have mentioned, it is accepted on behalf of the Secretary of State that Regulation 11(c) is capable of giving rise to prima facie indirect discrimination, in that its effect is to disadvantage persons who are destitute in consequence of their immigration status and who are so disabled as to require looking after within the terms of section 21 under the 1948 Act as compared to non-disabled persons who are destitute in consequence of their immigration status. However, the Secretary of State maintains that the provisions are justified and therefore compatible with Article 14.

The Secretary of State submits that the test of “manifestly without reasonable foundation” is not satisfied by the claimant in the present case. The justification relied on is that the exemption in Regulation 11(c) is relatively simple for relevant NHS bodies (more specifically the Overseas Visitor Managers or OVMs) to administer. It is necessary only to seek confirmation from one body, namely the Home Office, to resolve completely the question of a patient’s eligibility. If the exemption were expanded to any patient who would be supported under section 4 of the 1999 Act but for the fact he is in fact supported under section 21 of the 1948 Act by reason of disability, then there would be the potential for considerably greater administrative complexity. Put shortly, the Secretary of State submits that he is entitled to adopt a bright line rule in this area of social and economic policy.

As the authorities I have cited make clear, there are circumstances in which a bright line legitimately can be drawn even if it results in hard cases falling on the wrong side of the line. There are limits to how far this point can be taken. To take an extreme example, if the Secretary of State adopted a policy that a Christmas bonus was to be payable only to white people, that would be a bright line and easy to administer but it is difficult to see how it could survive scrutiny under the test of “manifestly without reasonable foundation.” However, the Secretary of State submits that the present context is far from such an extreme example.

In this regard the Secretary of State relies in particular on the witness statement of Craig Keenan, who is the Visitor and Migrant NHS Access Manager at the Department of Health. At paras 49-56 of his witness statement Mr Keenan sets out what he describes as being the difficulties with extending the exemption in Regulation 11(c). He states that, if a patient who an OVM finds not to be ordinarily resident in the UK states that he or she is supported under section 4 of the 1999 Act, that information can be readily confirmed through the Home Office and that confirmation in effect resolves completely the question of eligibility for exemption. In contrast, for persons claiming to qualify under the “but for” test, which the claimant advances, he states that the position would be rather more complex for the following reasons.

Mr Keenan goes on to state that there is inconsistency in practice across local authorities and there would be no way for an OVM to verify that the Home Office agreed with the local authority’s assessment that provision of support was necessary to avoid a breach of Convention rights.

Furthermore, it would also be necessary for OVMs to satisfy themselves that the condition of being “destitute” was satisfied. Mr Keenan accepts that in practice this would usually be satisfied in the case of person where provision of support was required to avoid a breach of the Convention rights. Nevertheless he makes the observation that both criteria would need to be satisfied and the OVM would have to make an assessment about them.

Furthermore Mr Keenan states that it is difficult to know how OVMs would go about this task: presumably either they would seek information and advice from the local authority, the Home Office or some other agency; or they would reach their own view about whether the patient was destitute before receiving section 21 support and whether they would still be destitute in the absence of such support.

Mr Keenan states that he has asked a number of OVMs how they might go about this last exercise. They have expressed concerns to him that this could be a difficult and protracted process, in that it might involve long and sensitive discussions with the patient about, for example, their living arrangements and their means of support (including relatives, friends and charitable organisations). Some have also raised with him the problem of the difficulty in verifying what patients say, especially if there is no supporting documentation.

Finally, Mr Keenan says, even for those patients whose circumstances (including destitution) could be verified by other government agencies, there would be a question of timing. Mr Keenan is informed by his colleagues at the Home Office that, because section 4 of the 1999 Act is intended to be only a temporary, last resort form of support, cases are reviewed regularly and people are often taken off of section 4 support. Therefore, even if someone had given the Home Office all of the necessary information to make a section 4 assessment a few months earlier, before being referred to the local authority in the light of his or her care needs, that does not necessarily guarantee that the person in question would still qualify for section 4 support at the time at which the OVM has to make the necessary evaluation.

In the light of these matters, Mr Keenan expresses the view to the court that the claimant’s argument has the potential to give rise to considerable and time consuming complexities for OVMs. It is not possible for him to be more precise about the scale of the administrative problems to which the extension could give rise because the numbers are not known with certainty. He accepts that it may well be that the total number of persons at stake is modest. Nevertheless, he states that, across OVMs as a whole, there will be at least some increase in the overall administrative burden.

I accept the submissions made on behalf of the Secretary of State, which are based on the evidence of Mr Keenan. I am unable to accept the claimant’s submission that Regulation 11(c) fails the test of being “manifestly without reasonable foundation.”

Counsel for the claimant submitted that the line drawn by Regulation 11(c) is arbitrary and unreasonable. She suggested alternative ways in which the legislation might have been drafted so as to include a person in the claimant’s position. She also submitted that, even on the present arrangements, there will be circumstances in which a clinician may have to address difficult questions in accordance with the guidance I have cited earlier: for example, to estimate when a person is likely to be returned to his or her own country.

However, it is important to recall that the task of the court is not to identify what other legislation might have been drafted or whether there might be better arrangements that could be put in place. The question for the court is whether the legislation that the Secretary of State has in fact adopted is manifestly without reasonable foundation. In my judgment it is not. Accordingly this part of the claim fails.

The claimant contends that the Secretary of State breached his duty in section 149 of the Equality Act 2010, which is referred to in the side note as the public sector equality duty. Section 149, so far as material, provides:

“(1)

A public authority must, in the exercise of its functions, have due regard to the need to –

(a)

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it. …

(3)

Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to –

(a)

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; …

(4)

The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons’ disabilities. …”

It is uncontroversial that disability is one of the protected characteristics in the Equality Act.

It was common ground before me that the relevant principles as to the application of the public sector equality duty were summarised by McCombe LJ in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, at para 26 as follows:

“(1)

As stated by Arden LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213; [2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.

(2)

An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) (Stanley Burnton J as he then was)).

(3)

The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at [26-27] per Sedley LJ.

(4)

A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a ‘rearguard action’, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23-24].

(5)

These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows:

i)

The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters;

ii)

The duty must be fulfilled before and at the time when a particular policy is being considered;

iii)

The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;

iv)

The duty is non-delegable; and

v)

Is a continuing one.

vi)

It is good practice for a decision maker to keep records demonstrating consideration of the duty.

(6)

‘[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.’ (per Davis J (as he then was) in R (Meany) v Harlow DC [2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at [74-75].)

(7)

Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be ‘rigorous in both enquiring and reporting to them’: R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 at [79] per Sedley LJ.

(8)

Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) (Divisional Court) as follows:

(i)

At paragraphs [77-78]

‘[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear it is for the decision maker to decide how much weight should be given to the various factors informing the decision.

[78] The concept of “due regard” requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield’s submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.’

In his witness statement Mr Keenan explains that, in the consultation which preceded the making of the 2011 Regulations, draft impact assessments were carried out and consultees were also asked whether they were able to provide any additional data that might inform the calculations of costs and benefits. The Government’s response to the consultation was accompanied by final impact assessments in respect of the changes made by the Regulations. Both the draft and final version of the impact assessments in respect of the new exemption concerning section 4/section 95 of the 1999 Act included an “equality screening” in respect of the exemption. The material part of that screening stated as follows:

“There is no foreseeable differential impact on disability, gender, sexual orientation, or religion or belief. This policy increases equality by bringing more of the [failed asylum seeker] population into line with the general population into line with the general population in terms of eligibility for free NHS hospital treatment, which in turn is likely to lead to them accessing secondary care more.

The initial screening suggests that there should be some positive impact on ethnicity and religious belief. However the numbers affected are small so the overall impact on equality at a national level will be minimal. The relevant Section 4 and Section 95 individuals cannot be compared against the general [failed asylum seeker] population for equality implications as their circumstances are markedly different.

The UK Border Agency receives applications from adherents to a wide range of world religions and from different racial groups, sometimes on the basis of religious or racial persecution in their home countries. No particular racial or religious group is liable to be affected by this proposal.”

The final impact assessment which is dated 18 March 2011 had a section headed “Equality Screening”. At para 50 that document stated:

“There is no foreseeable differential impact on disability, gender, sexual orientation, or religion or belief. This policy increases equality by bringing more of the FAS population into line with the general population in terms of eligibility for free NHS hospital treatment, which in turn is likely to lead to them accessing secondary care more.” (Emphasis added)

In the Equality Analysis document in 2011, which was produced after the 2011 Regulations had been made, it was stated under the heading “Disability”:

“People with disabilities are able to benefit from the exemption from charge categories.” (Emphasis added)

Mr Keenan notes that one respondent to the 2010 consultation, namely the policy and communications officer of the NRPF (“No Recourse to Public Funds”) network said in his response that the proposed exemptions should extend to those being supported by local authority social services departments under section 21 of the 1948 Act and under section 17 of the Children Act 1989 on the basis that those people are similar to those being supported under section 4 and section 95 of the 1999 Act insofar as they cannot reasonably be expected to leave the country due to outstanding claims with the Home Office, or are temporarily unable to return to their country of origin through no fault of their own. However, Mr Keenan observes that the respondent in question did not refer to the question whether excluding section 21 support recipients would give rise to any disability discrimination. Further it appeared to Mr Keenan that the wider exemption that he proposed would have gone beyond that for which the claimant is now arguing.

In its response to the 2010 consultation the Department of Health addressed the consultation response referred to by Mr Keenan by commenting that:

“Introducing a wider range of other support related exemption would be a further scope change [and] may also be difficult to administer. It would not be appropriate to do this without further evaluation.”

Subsequently in 2011 a similar view was expressed after further correspondence with the consultee concerned.

The 2011 Regulations were made on 21 June 2011, laid before Parliament on 27 June and came into force on 1 August.

A full Equality Analysis of the 2011 Regulations and the Guidance was undertaken by the Department of Health in August 2011. The Department concluded that the 2011 Regulations gave rise to some differences in impact in respect of some of the protected groups under the Equality Act 2010. In the application of the 2011 Regulations it was felt that the greatest risk of an inadvertent adverse impact was on protected groups relating to race and religion/belief. To address this risk, the Guidance issued to NHS trusts stressed the equality duties that they had to abide by in carrying out their functions.

In the meantime, in view of the fact that both the 2010 consultation and the responses to it had indicated to the Department that there was a need for a more comprehensive and fundamental review to consider the full scope of who should be charged and for which services, and how the rules on charging were applied, the Department had announced in March 2011, at the time of publishing its response to the consultation exercise, that there would be a major review of the Overseas Visitors Charging Policy. The outcome of that review was completed in April 2012 and published in July 2013.

Subsequently a public consultation exercise was conducted in July 2013 on a range of proposals for a new, fairer and simpler charging system. As Mr Keenan explains, the July 2013 consultation was supported by an Equality Analysis. However, the specific issue about whether to widen the exemption in Regulation 11(c) was not a matter for consideration at that time. This is because the focus of the consultation exercise was one of addressing the difficulties of recovering treatment costs from those who are currently chargeable, not on reviewing the case for widening the exemptions further.

The Government issued a response to this consultation exercise in December 2013 and in January 2014 issued an implementation plan of what it intends to do next. Part of the next steps does involve reviewing further the current exemptions within the 2011 Regulations. At para 77 of his witness statement Mr Keenan states:

“While it would obviously be premature for me to comment on the precise scope of this further review, in principle I cannot at this stage see why, in the course of the review, the issue raised by Mr Price about whether to widen the scope of the s.4/s.95 exemption in Reg.11(c) could not be considered, along with the potential equalities impacts.”

In his witness statement Mr Keenan concludes on the public sector equality duty as follows at paras 78-80. He reiterates that, in relation to the question what regard was had to the discrimination issue which the claimant now raises when the Regulation 11(c) exemption was consulted on, the new exemption was a positive move from an equalities perspective, in that it made more persons eligible for free NHS treatments and did not worsen the position of those overseas visitors who were not exempted from charges. That the new exemption was not something which should have given rise to concern about potential discriminatory impacts is, in his view, further reinforced by the fact that the issue of discriminatory impact on the ground of disability was not something to which any of the consultees drew the Department’s attention. Even the NRPF consultation response did not allude expressly to disability discrimination. In any event that response was received after the consultation exercise was over. By that time the Government had already taken a decision as to the content of the new 2011 Regulations. Mr Keenan states:

“To have considered widening the proposed exemption at that stage, beyond the scope of what had been consulted on and without further consultation, would … have been inappropriate in the view of the DH (Department of Health). But that is not to say that careful and conscientious consideration of such a widening, and the equalities issues that this Claimant has raised, will not take place at the next suitable opportunity when the exemptions from NHS charging are reviewed.”

I accept the submissions made on behalf of the claimant in relation to this ground of challenge. I am unable to accept the submission made on behalf of the Secretary of State that he did have due regard to the need to promote equality of opportunity for disabled people. Applying the principles which I have sought to summarise earlier, I have come to the conclusion that the Secretary of State failed to have due regard to that matter.

Although Mr Keenan points to the fact that equality impacts were carried out, they addressed other protected characteristics in terms, such as race and religion. This was perhaps understandable in a context which concerned foreign nationals. However, the equality impacts simply did not address the protected characteristic of disability.

In so far as there has been consideration of the issue of disability later that was too late. As the authorities make clear the public sector equality duty must be complied with before and at the time that a relevant decision is being made, not afterwards. In any event, as the evidence from Mr Keenan shows, the possibility of extending the scope of Regulation 11(c) to include persons in the claimant’s position has not yet been considered in the exercise which has taken place since the Regulations came into force.

It was submitted on behalf of the Secretary of State that he was not to blame for the omission to refer expressly to the protected characteristic of disability, since no one drew this to his attention despite the opportunity to do so in the consultation exercise which preceded the making of the Regulations. However, in my judgment, this is to miss the point. There is no question of casting blame on anyone. The question is whether the duty imposed by Parliament in section 149 of the Equality Act was complied with or not. It is also important to recall that Parliament has imposed that duty on the relevant public authority: a failure to comply with it cannot be excused by saying that others did not draw the decision-maker’s attention to the relevant protected characteristic and should have done so.

Although the public sector equality duty is one created by statute it seems to me that an analogy can be drawn with the well known principle of administrative law that a public authority must have regard to all relevant considerations. If it fails to do so, it will breach that duty and in principle that failure in its decision-making process will vitiate the resulting decision. The law does not seek to cast blame for that failure. The failure may be an “innocent” one. Nevertheless, the fact that the decision-maker has not had regard to a relevant consideration is a breach of one of the basic requirements of administrative law.

Furthermore, in my view, this approach is consistent with the purpose which lies behind the public sector equality duty. It was first created in the Race Relations (Amendment) Act 2000, as Parliament’s response to one of the most important recommendations made by the Stephen Lawrence Inquiry report. The purpose of the duty is to make sure that public authorities do not inadvertently overlook the impact of their decisions on relevant groups, because too often in the past they were overlooked.

As the authorities make clear, the question of what weight should be attached to a relevant consideration is a matter for the public authority concerned and not for the court. However, what is crucial is that the public authority has had due regard to the relevant matters. If it has not done so, there will be a breach of its duty in section 149 of the Equality Act. That is what I find occurred in the present case.

For the reasons I have given this claim for judicial review succeeds in part: there was a breach by the Secretary of State of the public sector equality duty in the process leading up to the making of the Regulations. I will consider counsel’s submissions as to the form of any remedy which the Court should grant to reflect this judgment.