R (MP) v Secretary of State for Health and Social Care

The claimant sought judicial review of the National Health Service (Charges to Overseas Visitors) Amendment Regulations 2017, challenging (1) the absence of public consultation before introducing a requirement to secure advance payment and to record overseas-visitor status, and (2) alleged failures to discharge equality and health-service duties (in particular the public sector equality duty under section 149 of the Equality Act 2010 and duties under sections 1A, 1B and 1C of the National Health Service Act 2006). The court held that there was no legally enforceable practice or unequivocal assurance giving rise to a legitimate expectation of consultation before any amendment to the charging regime, and therefore no common-law duty to consult in the circumstances. The court also held that the Secretary of State had had due regard to the matters required by section 149 and to the duties in the 2006 Act when making the 2017 Regulations: equality analyses and other material before the minister identified the impacted groups and concluded the measures were proportionate to the legitimate aim of protecting NHS resources. Permission to advance a third ground (insufficiency of inquiries about deterrent effects) was refused. The claim was dismissed.

Background and parties: This is a first-instance judicial review claim by MP challenging regulations (the 2017 Regulations) that amended the statutory charging regime for non-UK-ordinarily-resident patients. The claimant challenged (i) the lawfulness of making two specific changes (a duty to secure advance payment for non-urgent services and a requirement to record overseas-visitor chargeable status) without public consultation, and (ii) failures to discharge the public sector equality duty (Equality Act 2010 s.149) and duties under the NHS Act 2006 (ss.1A, 1B, 1C).

Relief sought and procedural posture: The claimant sought quashing/declaratory relief by way of judicial review. Permission to advance an additional ground about alleged inadequate enquiries into deterrent effects had been refused on the papers and was the subject of a renewed application at hearing.

Issues framed by the court:

• Whether the Secretary of State acted unlawfully by failing to consult on the advance-payment and record-keeping proposals or whether a legitimate expectation of consultation arose from an alleged settled practice of consultation.
• Whether the Secretary of State failed to comply with the public sector equality duty (s.149 Equality Act 2010) or the duties in ss.1A, 1B and 1C of the NHS Act 2006 when making the 2017 Regulations.
• Whether permission should be granted to argue that the Secretary of State failed to make sufficient enquiries about deterrent effects (the refused third ground).

Court's reasoning and findings: The judge analysed the historical practice of amendments and consultations on the charging regime from 1982 onwards and concluded that there was no sufficiently settled, uniform and unequivocal practice of public consultation giving rise to a legitimate expectation that every significant amendment would be publicly consulted. The existence of some consultations (2003, 2004, 2010, 2013 and 2015) alongside many amendments made without public consultation established a mixed pattern rather than a binding practice. The specific record-keeping and advance-payment measures were not shown to have been the subject of any unequivocal assurance of future consultation.

On equality and related statutory duties, the court examined the material placed before the minister (consultation response, impact assessment, Prederi review, equality analyses dated December 2016 and July 2017, and other documents). The judge found that the decision-maker had been expressly directed to consider equality duties, had the relevant evidence and analyses before him, and had given substantive consideration to impacts on groups with protected characteristics (including older people, disabled people, certain migrant groups and racial/ethnic considerations). Although the judge recognised contested expert and medical evidence about potential public-health or access risks, he treated those as substantive disagreements about policy rather than procedural failings. The minister's view that impacts were justified and proportionate in order to protect NHS resources was open to him and did not amount to a failure to have due regard under s.149 or the NHS Act duties.

Permission to re-argue the third ground about insufficient inquiries was refused: the court held the Secretary of State had taken a range of enquiries and consulted relevant evidence, and a challenge on the adequacy of inquiries would not be arguable absent irrationality.

Outcome: The claim for judicial review was dismissed.

The claim is dismissed. The court held (1) there was no sufficiently settled and unequivocal past practice giving rise to a legitimate expectation of public consultation before the amendments were made, so no common-law duty to consult arose; (2) the Secretary of State had had due regard to the public sector equality duty (Equality Act 2010 s.149) and to duties in the National Health Service Act 2006 (ss.1A, 1B, 1C) when making the 2017 Regulations; and (3) permission to advance the separate ground about insufficient inquiries was refused because the defendant had made reasonable inquiries and there was no arguable irrationality in that aspect of his decision-making.