Affirming Ministerial Discretion in Exclusion of HBV Sufferers from EIBSS: Commentary on CN v Secretary of State [2022] WLR(D) 68

Introduction

The case of CN, R. (On the Application Of) v The Secretary of State for Health and Social Care ([2022] WLR(D) 68) presents a significant examination of the eligibility criteria under the England Infected Blood Support Scheme (EIBSS). Established on 1 November 2017, the EIBSS aims to provide ex gratia support to individuals who contracted hepatitis C virus (HCV) and human immunodeficiency virus (HIV) from unscreened blood and blood products administered by the National Health Service (NHS). The appellant, CN, challenges the exclusion of individuals infected with hepatitis B virus (HBV) from this scheme, alleging discrimination under the European Convention on Human Rights (ECHR). This commentary delves into the background, key legal issues, judicial reasoning, and the broader implications of the Court of Appeal's decision.

Summary of the Judgment

Mrs Justice Stacey initially refused CN's application for judicial review, a decision later appealed by CN. The core issue revolves around whether excluding HBV sufferers from the EIBSS constitutes discrimination under Article 14 in conjunction with Article 8 and Article 1 of Protocol 1 (A1P1) of the ECHR. The Court of Appeal, delivered by Holroyde LJ, upheld Mrs Justice Stacey's refusal, dismissing CN's appeal. The court concluded that CN was not in a "relevantly similar" position to those covered by the EIBSS and that the Secretary of State's differential treatment was justified. Additionally, the court held that CN's application was out of time and denied the extension of the filing period.

Analysis

Precedents Cited

The judgment extensively references key legal precedents to bolster its reasoning:

R (SC) v. Secretary of State for Work and Pensions [2021] UKSC 26: Established that Article 14 must be read in conjunction with another substantive right, emphasizing that claims of discrimination must interfere with broadly protected rights.
R (Joint Council for the Welfare of Immigrants v. Secretary of State for the Home Department) [2020] EWCA Civ 542: Addressed the necessity of a substantial connection between the discriminatory measure and the protected right under Article 14.
RJM v. Secretary of State for Work and Pensions [2008] UKHL 63: Highlighted the requirements for claimants to have a legitimate expectation of benefits under ex gratia schemes.
Johnson v. Secretary of State for the Home Department [2016] UKSC 56: Differentiated between continuing and non-continuing discriminatory acts, impacting the timeliness of judicial reviews.
Delve v. Secretary of State for Work and Pensions [2020] EWCA Civ 1199: Clarified that non-continuing acts of discrimination do not extend the time limits for judicial reviews.

These precedents collectively informed the court's understanding of discrimination claims, the interplay between different articles of the ECHR, and the standards for justifying differential treatment in social support schemes.

Legal Reasoning

The court's legal reasoning hinged on several pivotal points:

Relevant Similarity: The court determined that CN's situation was not "relevantly similar" to those covered by the EIBSS. The comparison was more apt with HBV sufferers who contracted the virus before 1972, when screening began, rather than with individuals who contracted HIV or HCV post-screening.
Objective Justification: Even if relevant similarity were established, the court found that the Secretary of State could objectively justify the exclusion. The rarity of HBV cases post-screening and the significant scale of HIV and HCV cases necessitated a focused approach to manage resources effectively.
Discretionary Power: The court emphasized the wide margin of appreciation afforded to the executive in matters involving social and economic policies. Establishing ex gratia schemes involves complex policy judgments that courts should rarely second-guess.
Timeliness: CN's claim was considered out of time as the exclusion of HBV sufferers was not a continuing act. The court distinguished this from cases where discriminatory acts have ongoing implications.

The integration of these points led the court to uphold the initial refusal, reinforcing the principle that not all exclusionary criteria in support schemes amount to unlawful discrimination.

Impact

This judgment has several notable implications:

Affirmation of Executive Discretion: The decision reinforces the judiciary's deference to the executive's policy decisions, especially in the realm of social support schemes where resource allocation and prioritization are critical.
Clarification on Discrimination Claims: It delineates the boundaries of what constitutes "relevant similarity" in discrimination cases, emphasizing the necessity of a substantial connection between the claimant's status and the measure in question.
Judicial Review Standards: The case underscores the rigorous standards required to succeed in discrimination-based judicial reviews against government policies, particularly when balancing fairness with practical policy implementation.
Timeliness in Claims: By distinguishing between continuing and non-continuing discriminatory acts, the judgment clarifies the importance of timely legal action in pursuing judicial reviews.

Collectively, the judgment serves as a precedent for future cases where individuals seek redress against government schemes on grounds of alleged discrimination, delineating the necessary conditions under which such claims might be successful.

Complex Concepts Simplified

Ex Gratia Scheme

An ex gratia scheme refers to a form of compensation provided by the state or an organization where there is no legal obligation to do so. Payments are made out of goodwill, often in situations where formal legal remedies may be impractical or insufficient.

Article 14, Article 8, and A1P1 of the ECHR

Article 14: Prohibits discrimination, ensuring that all rights and freedoms under the ECHR are secured without discrimination on various grounds such as race, sex, or disability.
Article 8: Protects the right to respect for private and family life, including one’s home and correspondence.
Article 1 of Protocol 1 (A1P1): Ensures the protection of property, guaranteeing peaceful enjoyment of possessions and regulating conditions under which property can be deprived.

In this case, CN alleged that the exclusion from the EIBSS constituted discrimination under Article 14 when read alongside Article 8 and A1P1, arguing that his right to private and property life was infringed.

Margin of Appreciation

The margin of appreciation is a doctrine allowing national authorities a degree of discretion in how they implement ECHR rights. It recognizes that national governments are better placed to make certain policy decisions, especially those involving complex social and economic factors.

Conclusion

The Court of Appeal’s decision in CN v Secretary of State for Health and Social Care upholds the exclusion of HBV sufferers from the EIBSS, affirming the principle that government bodies possess considerable discretion in designing and implementing support schemes. The judgment underscores the necessity for claimants to demonstrate both relevant similarity and the inability of the state to justify differential treatment under Article 14 of the ECHR. Furthermore, it highlights the judiciary's role in balancing individual rights against the practicalities of policy formulation. This case reinforces the importance of clear eligibility criteria in support schemes and sets a high bar for future discrimination claims against government policies, emphasizing the need for robust legal arguments to successfully challenge executive decisions.

Notes:

The Eileen Trust, the Macfarlane Trust, the Caxton Foundation, MFET Ltd, and the Skipton Fund were the pre-existing schemes replaced by the EIBSS.
The email in question responded to CN's inquiry about widening the EIBSS to include HBV sufferers or establishing a separate support scheme.
HBV screening has been conducted by the NHS since 1972, significantly reducing the risk of transmission through blood products since then.
Article 14 covers various grounds including sex, nationality, and ethnic origin.