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

This appeal concerned whether the exclusion of persons infected with hepatitis B virus (HBV) from the England Infected Blood Support Scheme (EIBSS) was unlawfully discriminatory or unreasonable. The Court of Appeal treated the article 14 complaint in conjunction with article 8 and Article 1 of Protocol 1 (A1P1) for present purposes, and focused on (a) whether HBV sufferers were in a relevantly similar position to those infected with HIV or hepatitis C virus (HCV) covered by the scheme, (b) whether any difference in treatment could be objectively justified, and (c) whether the claim was out of time.

The court held that it was not arguable that HBV sufferers were in a relevantly similar position to beneficiaries of the EIBSS because the proper comparison was with persons infected from unscreened blood (HCV or HIV contracted before screening) or those for whom proof of causation would be highly unlikely. Even assuming arguable similarity, the Secretary of State had a wide margin of appreciation in establishing an ex gratia scheme designed to address a pressing moral claim and to contain public expenditure; the distinction based on the timing and availability of screening was intelligible and bore a rational relation to the scheme's aims. Finally, the court held the claim was out of time because the exclusion was not a continuing state activity but an act when the schemes were established, and it would not extend time given the lack of arguable merit.

The appellant, CN, suffering chronic HBV allegedly contracted from NHS blood transfusion following a 1989 bone marrow transplant, sought judicial review of a departmental email (12 May 2020) declining to widen the England Infected Blood Support Scheme (EIBSS) to cover HBV sufferers or to create a separate scheme. The EIBSS, established in 2017 and successor to earlier Alliance House organisations, provides ex gratia support for those infected with HIV or HCV from infected blood or blood products.

Parties and procedure:

• Claimant/appellant: CN (infected with HBV).
• Defendant/respondent: Secretary of State for Health and Social Care.
• Interested party: The NHS Business Authority.
• Lower court: Mrs Justice Stacey refused permission for judicial review ([2021] EWHC 1770 (Admin)).
• Permission to appeal was granted by Holroyde LJ (27 August 2021, amended 1 September 2021). The Court of Appeal heard the appeal and dismissed it on 4 February 2022.

Nature of the application and relief sought: CN sought permission for judicial review challenging the Response as a decision refusing to include HBV sufferers within the EIBSS and sought relief on grounds of (i) discrimination under Article 14 read with article 8 and A1P1, (ii) disability discrimination under section 15 of the Equality Act 2010 (not pursued on appeal), and (iii) irrationality/unreasonableness.

Issues framed by the court:

1. Whether the Secretary of State's conduct fell within the ambit of article 8 or A1P1 (the court assumed arguendo it did not finally decide those points).
2. Whether HBV sufferers constituted an "other status" under Article 14 (assumed arguable for the purpose of the hearing).
3. Whether HBV sufferers were in a relevantly similar position to HIV/HCV sufferers covered by the scheme.
4. Whether any difference in treatment was objectively and reasonably justified; what intensity of review applied and the margin of appreciation for the executive in designing an ex gratia welfare scheme.
5. Whether the claim was brought in time or whether time should be extended.

Court's reasoning and subsidiary findings:

• The court accepted the governing Article 14 framework: (i) ambit of a substantive right, (ii) status, (iii) relevant similarity of situation to others, and (iv) objective and reasonable justification. It noted authority such as R (SC) v Secretary of State for Work and Pensions and Carson v United Kingdom.
• On similarity, the court concluded the proper comparators were those infected from unscreened blood (HCV pre-screening) or HIV sufferers for whom post-screening transmission would make causation unlikely; CN’s position (HBV contracted when screening was in place) differed materially from the principal beneficiaries of the EIBSS.
• On justification, the court applied a sliding scale of review: while disability and suspect grounds can call for closer scrutiny, the decision to create an ex gratia support scheme is a matter of social and economic policy warranting a wide margin of appreciation. The Secretary of State's reasons—addressing moral responsibility, the fault-based background, evidential and cost considerations, and the limited numbers of HBV cases after the introduction of screening—furnished an intelligible and sufficient justification; the court cannot second-guess political judgments about where to draw lines to make the scheme affordable.
• On delay, the court held the exclusion was not a continuing state activity; time ran from the establishment of the relevant schemes (2004 and 2017). CN had been aware of the position and was out of time; even if time were extended, the lack of arguable merit meant extension would not be granted.

Outcome: The appeal was dismissed. The court therefore refused permission to apply for judicial review on the grounds advanced.

Appeal dismissed. The court held that it was not arguable that HBV sufferers were in a relevantly similar position to HIV/HCV beneficiaries of the EIBSS, and that even assuming arguable similarity the Secretary of State had an objective and reasonable justification for excluding HBV sufferers given the fault-based background, the pressing moral claim targeted by the scheme, evidential and cost considerations, and the availability of screening. The claim was also out of time and extension of time was refused.

Appeal from the High Court of Justice, Queen's Bench Division, Administrative Court (Mrs Justice Stacey) [2021] EWHC 1770 (Admin). Permission to appeal granted by Holroyde LJ (27 August 2021, amended 1 September 2021). Determined in the Court of Appeal, [2022] EWCA Civ 86.