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

Permission to judicially review delegated NHS charging regulations should be refused where the proposed grounds are not arguable. A consultation need identify the subject and principal options sufficiently to permit an intelligent response; it need not reproduce the eventual legislative wording or identify every precise statutory cohort. The duty of sufficient inquiry does not require detailed empirical research where the decision-maker has undertaken an adequate consultation and considered available evidence. The public sector equality duty is met where the decision-maker has due regard to protected groups and other materially affected groups, including the likely adverse impacts of the policy. An Article 14 challenge to differentiated NHS charging faces the high threshold of showing that the measure was manifestly without reasonable foundation.

The claimants sought permission to challenge the National Health Service (Charges to Overseas Visitors) Regulations (SI 2015/238), particularly regulation 15, which retained an exemption from NHS charges for certain failed asylum seekers supported under section 4(2) of the Immigration and Asylum Act 1999 but removed it for persons supported under section 4(1).

They alleged inadequate consultation, insufficient inquiry, breach of the public sector equality duty under section 149 of the Equality Act 2010, and discrimination contrary to article 14 of the Convention. Warby J had refused permission on the papers. The renewed application was heard together, although the claimants were not then being charged and Mr Ali had a potential trafficking exemption under regulation 16.

1. Permission refused. The proposed challenges lacked arguable merit.
2. The consultation was legally sufficient. The materials addressed NHS charging, who should be charged, and the proposed continued exemption for failed asylum seekers. The law did not require the consultation to set out the precise distinction later enacted between section 4(1) and section 4(2) support, nor anything resembling a preliminary draft of regulation 15. The benchmark stated in R (Sumpter) v The Secretary of State for Work and Pensions [2014] EWHC 2434 (Admin) was accepted as useful guidance.
3. The Secretary of State’s inquiries were sufficient. The consultation and related material were ample to satisfy the duty identified in the Tameside case; detailed identification of the affected cohorts was not required.
4. The equality analysis adequately addressed protected characteristics and other identified groups, including illegal migrants, their health needs and inability to pay. The Secretary of State had due regard to the statutory goals in section 149 of the Equality Act 2010.
5. The Article 14 ground was also unarguable. Facilitating the removal of illegal migrants was a legitimate aim, and the charging scheme could not realistically be said to be manifestly without reasonable foundation. The approach in R (on the application of Cushnie) v Secretary of State for Health [2014] EWHC 3626 (Admin) supported that high threshold.
6. It was unnecessary finally to determine standing, prematurity or academicness. Mr Marfo would not have been excluded on standing alone. In Mr Ali’s case, an application to the Competent Authority for a trafficking exemption under regulation 16 was a suitable alternative remedy, and permission would have been refused on that additional ground.

First-instance permission decision. Warby J had refused permission on the papers on 3 July 2015; the renewed application was heard and refused by the Administrative Court.