MP, R (On the Application Of) v Secretary of State for Health and Social Care

A public authority that consults on one group of proposals is not thereby required to consult on separate proposals in the same policy area. A common-law duty to consult may arise from an established practice only where the practice is clear, unequivocal, sufficiently settled and uniform, and departure would be unfair or an abuse of power.

The public sector equality duty and related health-inequality duties are duties of substance, but they require due regard to relevant impacts rather than achievement of a particular outcome. The decision-maker may balance identified impacts against a legitimate aim. The scope and intensity of any inquiry into relevant information are principally for the decision-maker, subject to irrationality review.

The claimant sought judicial review of the National Health Service (Charges to Overseas Visitors) Amendment Regulations 2017. The Regulations required advance payment for chargeable non-urgent NHS treatment, required NHS trusts to record a person’s chargeable overseas-visitor status, and extended charging to certain NHS-funded community services.

He argued that the first two changes were unlawful because they had not been included in an earlier public consultation, or because a past practice created a legitimate expectation of consultation. He also alleged breach of the public sector equality duty under section 149 of the Equality Act 2010, breach of duties under the National Health Service Act 2006, and failure to make sufficient inquiries about deterrence from seeking healthcare.

1. Consultation. The defendant had consulted on a defined set of proposals concerning overseas-visitor charging. Advance payment and record-keeping were discrete, self-contained changes. Their announcement in the consultation response did not make them part of, or intrinsically linked to, the matters consulted upon. The consultation was therefore not unfair.
2. Legitimate expectation. The history of regulations made between 1982 and 2015 showed consultations on some occasions and no consultation on others. It did not establish a sufficiently settled and uniform practice, still less an unequivocal assurance, that future amendments to the charging regime would be preceded by public consultation. The alleged practice also did not clearly extend to recording chargeable status or changing the timing of payment.
3. Equality and health-inequality duties. The minister had material addressing the impact of all three changes, including effects on people with protected characteristics, lower-income groups, disabled people, older people, children, migrants and other vulnerable groups. The material identified potential adverse effects and mitigating measures, and explained why the measures were considered proportionate to the legitimate aim of protecting NHS resources. The duties required due regard, not a particular substantive result. The omission of specific reference to pregnancy-termination services did not establish non-compliance.
4. The duties under sections 1B and 1C of the National Health Service Act 2006 did not add materially to the section 149 duty on these facts. The minister had regard to the need to reduce health inequalities. A later review was consequently unnecessary to determine the claim.
5. Inquiry. The defendant obtained information from a wide range of sources concerning possible deterrent effects, including material relating to vulnerable groups. The manner and intensity of inquiry were for the defendant unless irrational. There was no arguable basis for concluding that the inquiries were irrational, and permission on that ground was refused.
6. Disposition. The claim for judicial review was dismissed.

First-instance judicial review. No prior appellate decision is stated in the judgment.