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

Indirect discrimination under Article 14 may be justified where a social and economic policy has an objective and reasonable foundation. The stringent manifestly without reasonable foundation test still requires careful scrutiny, particularly where disabled people are affected. The court must assess the measure adopted, not whether a preferable alternative could have been devised.

The public sector equality duty requires the decision-maker personally to have due regard, before and at the time of making the decision, to the statutory equality criteria. Equality analysis directed to other protected characteristics does not discharge the duty in relation to disability. The omission cannot be excused because consultees failed to identify the issue.

The claimant, a disabled former asylum seeker, received accommodation and support from a local authority under section 21 of the National Assistance Act 1948. Because he was supported under that provision rather than sections 4 or 95 of the Immigration and Asylum Act 1999, regulation 11(c) of the National Health Service (Charges to Overseas Visitors) Regulations 2011 did not exempt him from NHS charges.

He challenged regulation 11(c), alleging indirect disability discrimination contrary to Article 14 read with Article 8 of the Convention and breach of the public sector equality duty under section 149 of the Equality Act 2010. The discrimination challenge concerned justification. The equality-duty challenge concerned whether disability had been considered before and when the Regulations were made.

1. The claim succeeded in part. The challenge under Article 14 failed, but the Secretary of State had breached the public sector equality duty.

2. Regulation 11(c) caused indirect, rather than direct, discrimination on grounds of disability. The appropriate justification test was whether the measure was manifestly without reasonable foundation. That test applied in the context of social and economic policy, but it remained stringent and required careful scrutiny, especially because the measure affected disabled people.

3. The Secretary of State had a legitimate administrative objective in adopting a readily ascertainable exemption based on support confirmed by the Home Office. Extending the exemption to persons supported under section 21 of the 1948 Act would require NHS officials to investigate local-authority support, immigration status, destitution and whether section 4 support would otherwise be available. The resulting administrative complexity provided an objective and reasonable foundation for the bright-line rule. The court was not required to decide whether alternative drafting would have been preferable.

4. Section 149 of the Equality Act 2010 required due regard to the need to advance equality of opportunity for disabled people. The duty was personal, non-delegable and continuing. It had to be exercised in substance, with rigour and an open mind, before and at the time the Regulations were made. The decision-maker had to be properly informed, although the weight given to equality considerations remained a matter for the decision-maker.

5. The equality assessments considered race, religion and other characteristics but did not address disability. Later consideration was too late and the omission was not excused by the failure of consultees to raise disability discrimination. The breach was a failure of the statutory decision-making process, irrespective of blame. The court reserved the question of remedy.

First-instance judicial review proceedings. The judgment does not state any prior judicial decision on the merits.