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

The claimant sought judicial review of the National Health Service (Charges to Overseas Visitors) Regulations 2011, in particular regulation 11(c). He argued that the Regulations discriminated on grounds of disability (Article 14 read with Article 8) and that the Secretary of State breached the public sector equality duty in section 149 of the Equality Act 2010. The court found no direct discrimination but accepted there was prima facie indirect discrimination arising from regulation 11(c), which exempts persons supported under section 4 or 95 of the Immigration and Asylum Act 1999 but does not extend that exemption to those who, "but for" disability, would be so supported and are instead supported under section 21 of the National Assistance Act 1948.

The court applied the "manifestly without reasonable foundation" standard of review to the justification for that indirect discrimination. Having regard to the administrative simplicity of a bright-line rule, the evidence of administrative difficulties from the Department of Health witness, and the margin of appreciation in social and economic policy, the court held the discrimination was justified and compatible with Article 14.

Separately, the court held that the Secretary of State breached the public sector equality duty in section 149 because the decision-making process leading to regulation 11(c) did not have due regard to the impact on disabled persons: equality assessments and consultation materials did not address the disability dimension at the time of the decision. The claim therefore succeeded in part.

Background and parties: The claimant, a Jamaican national and former asylum-seeker with severe ankylosing spondylitis who was receiving local authority support under section 21 of the National Assistance Act 1948, challenged the National Health Service (Charges to Overseas Visitors) Regulations 2011. He alleged that regulation 11(c) unlawfully discriminated against disabled former asylum-seekers and that the Secretary of State breached the public sector equality duty in section 149 of the Equality Act 2010. The claim was originally brought against local NHS bodies but, after the claimant moved, the challenge before this court was pursued against the Secretary of State for Health. Permission to bring the judicial review was granted by Lang J.

Nature of the application: A judicial review challenging regulation 11(c) of the 2011 Regulations, seeking declarations and relief that the Regulations unlawfully discriminate and that the public sector equality duty was breached.

Issues before the court:

• whether the Regulations (particularly regulation 11(c)) gave rise to unlawful discrimination contrary to Article 14 read with Article 8 of the Convention rights;
• whether the Secretary of State breached the public sector equality duty under section 149 of the Equality Act 2010 when making the Regulations;
• secondary/lesser issues about Article 8 and risk of unlawful decision-making were raised but treated as ancillary to the discrimination and equality-duty challenges.

Reasoning on discrimination (Article 14): The court accepted there was indirect discrimination because the exemption in regulation 11(c) advantaged those supported directly by the Home Office under sections 4 or 95 of the Immigration and Asylum Act 1999 but not those who, because of disability, receive equivalent support from local authorities under section 21 of the 1948 Act. The relevant test for justification was whether the differential treatment was "manifestly without reasonable foundation." The Secretary of State relied on the legitimate aim of administrable, practicable rules and adduced evidence (via the Department of Health witness) of administrative complexity and uncertainty that would follow an extension of the exemption to persons supported under section 21 "but for" disability. The court held that, given the margin of appreciation applicable to social and economic policy and the evidence of administrative burden and practical difficulties, the differential treatment was justified and not "manifestly without reasonable foundation."

Reasoning on the public sector equality duty (section 149): The court found that the Secretary of State had failed to have "due regard" to the need to advance equality of opportunity for disabled persons when making regulation 11(c). Although equality screenings and impact assessments had been carried out in the consultation process, they did not address the specific impact on disability. The Department of Health did not consider at the relevant decision-making stage whether the exemption should be widened to cover persons in the claimant's position. The court treated this omission as a failure to comply with the statutory duty, noting the duty must be addressed before and at the time of the decision and is non-delegable. The claim therefore succeeded in part on the public sector equality duty ground.

Result: The claim succeeded in part: Article 14 challenge failed but there was a breach of the public sector equality duty. The court reserved consideration of remedy.

The claim succeeded in part. The court held there was indirect discrimination under Article 14 but that the discrimination was justified — the exemption in regulation 11(c) was not "manifestly without reasonable foundation" given administrative and policy considerations. Separately, the court held the Secretary of State breached the public sector equality duty in section 149 of the Equality Act 2010 because he did not have due regard to the impact on disabled persons when formulating regulation 11(c). Remedy to be considered.

The claim for judicial review was originally issued against Bristol Clinical Commissioning Group and University Hospitals Bristol NHS Foundation Trust but those parts were withdrawn after the claimant moved. Permission to bring the claim against the Secretary of State was granted by Lang J at a renewed oral hearing on 21 May 2014. No further appellate history is stated in the judgment.