Harrison, R (on the application of) v Secretary of State for Health & Ors

The National Health Service Act 2006 does not empower the Secretary of State or primary care trusts to make direct cash payments in place of healthcare services. The statutory references to providing or securing services concern healthcare provision, not cash payments. General incidental powers cannot create a power absent from the statutory scheme, particularly where the Act makes specific provision for limited cash payments. The refusal to provide direct payments did not infringe articles 8 and 14 of the Convention. The claimants’ interest in autonomy and control over carers was not sufficiently closely connected with article 8, they were not in an analogous position to recipients of community care, and the distinction was in any event objectively justified and proportionate.

Two judicial review claims challenged the Secretary of State’s policy, contained in paragraph 77 of the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care 2007, that NHS healthcare services could not be provided through direct payments. Both claimants were disabled and received NHS continuing healthcare, but wished to use cash payments to employ and control their own carers.

The claims raised three issues: whether the National Health Service Act 2006 authorised direct payments; whether the policy unlawfully discriminated contrary to articles 8 and 14 of the Convention; and whether section 3 of the Human Rights Act 1998 required the Act to be read compatibly with those rights.

1. Construction. The expressions “services” and “secure the provision” in sections 1 to 3 of the National Health Service Act 2006 refer to healthcare services. Section 1(3), the healthcare language used elsewhere in the Act, the specific provisions permitting limited grants or payments, and the historical context of the NHS all supported that construction. Cash payments were therefore not services which the Secretary of State was authorised or obliged to provide. (See paras [42]–[58], [69].)
2. Section 2(1)(b) was an ancillary or sweep-up power. It could facilitate the discharge of an existing statutory duty but could not create a new power to make cash payments. Section 12 supplied the specific statutory mechanism for arranging with third parties to provide NHS services. The claimants’ construction would make that provision otiose and would conflict with the principle that specific provisions govern over general provisions. (See paras [59]–[68].)
3. Convention rights. The claimants’ complaint did not have the very close connection with private or family life required to fall within the ambit of article 8 for article 14 purposes. The advantages of autonomy and choice in selecting carers were important, but the claimants continued to receive medical services without direct payments. (See paras [76]–[89].)
4. The claimants’ status as disabled persons receiving healthcare services was capable of constituting “other status” under article 14. However, recipients of NHS healthcare and recipients of community care were not in analogous situations because the regimes had different statutory structures, funding arrangements, functions and historical origins. (See paras [90]–[100].)
5. In any event, the distinction was justified. The policy pursued legitimate aims, including maintaining direct NHS provision, ensuring appropriate and suitable care, avoiding additional contractual liabilities for patients and allocating limited NHS resources. The means adopted were proportionate. The section 3 issue was consequently academic. Both claims were dismissed. (See paras [101]–[115].)