Moore, R (on the application of) v Skipton Fund Ltd & Anor

An ex gratia compensation scheme funded from public resources may require an applicant to prove, on the balance of probabilities, that an unusually unlikely medical event occurred. That burden is not irrational merely because proof may be difficult. A category of potential beneficiaries is not unlawful merely because some applicants may be unable to prove that they fall within it, provided the category is not truly empty and the evidential requirement remains justified.

Guidance is not unlawfully unpublished where it has been incorporated into the scheme’s application materials or supplied to an applicant before an appeal. Guidance referring to an assumption and to robust evidence may be lawful where it reflects the underlying statistical improbability and requires reliable, probative evidence rather than imposing an additional legal test.

The claimant had contracted Hepatitis C through a contaminated NHS blood transfusion. She later cleared the virus and sought a payment under the Skipton Fund’s ex gratia scheme, which covered people who could show that infection had persisted beyond the acute six-month phase before clearing.

The Fund rejected her application and appeal. She challenged the scheme’s allocation of the burden of proof, arguing that the relevant category of claimant was practically an empty category. She also challenged guidance concerning unpublished policies, the assumption of acute clearance, and the need for robust medical evidence. The claim proceeded against the Secretary of State for Health after the claim against the Fund was disposed of by consent.

1. Judicial review and the burden of proof. The scheme was voluntary and involved the allocation of public resources, but it remained reviewable on familiar judicial review grounds. There was nothing irrational or unfair in requiring an applicant seeking an ex gratia payment to prove, on the balance of probabilities, that spontaneous clearance occurred after six months, an event shown by the medical evidence to be very unlikely.
2. The result would not materially differ if the burden formally rested on the Fund. The Fund could rely on the statistical improbability of late spontaneous clearance, requiring the applicant in practice to produce medical evidence capable of showing that the unlikely event occurred.
3. The relevant beneficiary category was not an empty or illusory category. Although a PCR test was generally unavailable before 1991, some applicants might have relevant clinical histories, positive liver-function tests combined with symptoms, or records of a liver biopsy undertaken for a legitimate medical purpose. Such evidence might establish persistence beyond six months on the balance of probabilities.
4. Even if proof were practically very difficult, that would not by itself make the scheme irrational. The requirement that public funds be paid only to persons shown to fall within the designated category remained justified, particularly because the category was at the margin of the scheme’s objectives.
5. Guidance. The Appeal Panel guidance was supplied to the claimant when she was notified of her right of appeal. The Secretary of State’s 2004 guidance had in substance been incorporated into the Fund’s forms and guidance materials. It was therefore not unlawfully unpublished.
6. The references to an assumption of acute clearance and to robust evidence did not conflict with the published criteria. They reflected the statistical improbability of late spontaneous clearance and required evidence that was accurate, reliable and probative. Both grounds of challenge failed, and the application for judicial review against the Secretary of State was dismissed.

First instance judicial review proceedings. The claim against the Skipton Fund was disposed of by consent. The application against the Secretary of State for Health was dismissed.