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

Unequal treatment is not an independent ground of judicial review. The question is whether the decision-maker has drawn irrational distinctions between different groups. A public authority may adopt a clear eligibility line for an ex gratia scheme, even though hard cases fall on the wrong side and the line is imperfect. Where an independent inquiry is examining the justification, equity and operation of the scheme, it may be rational to maintain the existing rule temporarily and reconsider it after the inquiry reports. The court must assess whether the decision falls outside the range of reasonable decisions open to the decision-maker, while allowing appropriate weight to political and resource-allocation judgments.

The claimant, who was infected with hepatitis C following NHS blood transfusions in 1992 and 1993, challenged the Secretary of State’s decision of 10 January 2022 to maintain the September 1991 cut-off date for eligibility under the English Infected Blood Support Scheme pending the outcome of the Infected Blood Inquiry.

She argued that the distinction between the hepatitis C and HIV schemes was irrational and that the chosen date did not accurately reflect when all NHS blood and blood products had become screened for hepatitis C. The sole issue was whether the January Decision was irrational.

1. The claim was dismissed. The court determines objectively whether a decision falls outside the range of reasonable decisions open to the decision-maker. Unequal treatment is not a distinct ground of review; the relevant question is whether irrational distinctions have been drawn between groups. Consistency is generally desirable but is not absolute: Gallaher Group Ltd v Competition and Markets Authority [2019] AC 96.
2. The distinction between the hepatitis C and HIV schemes was not comparable to the racially derived exclusionary rule held irrational in Gurung v Ministry of Defence [2002] EWHC 2463 (Admin). The decision to retain the hepatitis C cut-off date was rational pending the Inquiry. A cut-off date provides a clear rule limiting the cost and administrative burden of an ex gratia scheme. The fact that the HIV scheme operated differently did not make the narrower hepatitis C criteria irrational.
3. The court accepted the Secretary of State’s submissions that decisions about where to draw eligibility lines in ex gratia schemes are political judgments entitled to restraint, and that hard cases or an imperfect line do not themselves invalidate an otherwise beneficial and rational scheme. Those propositions were supported by R (CN) v Secretary of State for Health and Social Care [2022] EWCA Civ 86.
4. There was a serious question whether 1 September 1991 precisely marked the point when all relevant blood and blood products were screened. Nevertheless, the decision was a holding decision made pending an in-depth inquiry considering that very issue. On the evidence available, it was open to the Secretary of State to conclude that there remained evidence supporting the date as a reasonable point for screening. Reconsidering the eligibility criteria before the Inquiry reported could require repeated consultation and changes.