CN (R on the application of) v The Secretary of State for Health and Social Care

Article 14 of the European Convention on Human Rights requires comparison with persons in a relevantly similar situation. Relevant similarity depends upon material differences connected with the aim of the measure, and overlaps with objective justification.

A discretionary, ex gratia scheme addressing the consequences of infected unscreened blood may lawfully distinguish persons infected after screening was generally introduced. In social and economic policy, the intensity of Article 14 review is context-sensitive. Disability may increase scrutiny, but the executive retains a wide margin in defining an affordable ex gratia scheme where the distinction is intelligible and responds to a major social problem.

A continuing situation requires continuous state activity. The continuing effects of an earlier decision to exclude a group from a scheme do not of themselves renew the time for judicial review.

CN alleged that he contracted chronic hepatitis B virus from blood transfusions received during a bone-marrow transplant in 1989. The England Infected Blood Support Scheme, established in 2017 to replace earlier support schemes, provided ex gratia payments and support to persons infected with HIV or hepatitis C from NHS blood or blood products, but not to persons with hepatitis B.

After the Department declined to extend the scheme, CN sought judicial review. He alleged discrimination contrary to Article 14 read with Article 8 and Article 1 of Protocol 1, irrationality, and disability discrimination. The section 15 Equality Act challenge was not pursued on appeal. Stacey J refused permission in the High Court: [2021] EWHC 1770 (Admin).

The appeal concerned whether CN was arguably in a relevantly similar position to covered HIV and hepatitis C beneficiaries, whether any distinction was objectively justified, and whether the claim was out of time.

1. Appeal dismissed unanimously. Sir Geoffrey Vos MR, with whom King and Dingemans LJJ agreed, held that permission for judicial review had correctly been refused.

2. Article 14 is not freestanding. The court assumed in CN’s favour that the complaint was arguably within the ambit of Articles 8 and A1P1, and that he had an arguable status. It was unnecessary to determine either issue because the claims failed on relevant similarity, justification and delay.

3. CN was not arguably in a relevantly similar position to all persons infected with HIV or hepatitis C. The proper comparators were hepatitis C sufferers infected through unscreened blood or blood products, and HIV sufferers who could establish infection despite the introduction of screening. The distinction between screened and unscreened products was material to the purposes and scope of the scheme, even though the questions of comparison and justification overlapped.

4. In any event, the distinction was objectively justified. The England Infected Blood Support Scheme was a discretionary ex gratia departure from fault-based liability, created to respond to a pressing moral claim. Although disability required a sliding scale of scrutiny, it was not the reason for the different treatment. Judgments of social and economic policy, affordability and the proper boundary of the scheme were entitled to a wide margin of appreciation. The screening distinction was intelligible, despite not being a perfect bright line, and the court could not sensibly rank the relative merits, costs or evidential difficulty of individual negligence claims.

5. The irrationality ground added nothing independent. Since the Article 14 challenge was not arguable, neither was irrationality.

6. The claim was also out of time. The exclusions occurred when the relevant schemes were introduced in 2004 and 2017. They were not a continuing act because there were no continuous state activities after the initial decision to exclude hepatitis B sufferers. The court would in any event have refused an extension in light of the lack of merit.

• Court of Appeal (Civil Division) — unanimously dismissed CN’s appeal and upheld the refusal of permission to seek judicial review: [2022] EWCA Civ 86.
• High Court of Justice, Queen’s Bench Division (Administrative Court) — Stacey J refused permission to apply for judicial review, holding the discrimination and irrationality grounds unarguable and the claim out of time: [2021] EWHC 1770 (Admin).
• High Court — Martin Spencer J had earlier refused permission on paper, principally because the claim was manifestly out of time and the exclusion of hepatitis B sufferers was not arguably unlawful.