MP, R (On the Application Of) v Secretary of State for Health and Social Care

Factual and Procedural Background

This claim concerns a judicial review of the National Health Service (Charges to Overseas Visitors) Amendment Regulations 2017 ("the 2017 Regulations"). These regulations amended the rules governing charges for certain NHS treatments provided to persons not ordinarily resident in the United Kingdom. The key changes included: (1) requiring charges to be paid in advance for non-urgent treatment; (2) requiring NHS trusts to record the chargeable status of overseas visitors; and (3) extending liability to certain NHS-funded community services, which previously only applied to hospital-based services.

The claimant challenged the regulations on grounds that the first two changes were introduced without public consultation and that the defendant failed to comply with statutory duties under the Equality Act 2010 and the National Health Service Act 2006. Permission was refused on a third ground concerning insufficient inquiries into the deterrent effect of the changes, but the claimant sought reconsideration of that refusal.

The claimant, a middle-aged man with a serious health condition, had received necessary treatment prior to the hearing and had obtained a right of abode in the UK, with indefinite leave to remain expected imminently, potentially removing future liability for charges. The defendant was found to have initially failed to provide full disclosure regarding the claim of a legitimate expectation arising from past consultation practices, necessitating an adjournment and further evidence submission.

The background includes a detailed history of regulations on charging overseas visitors dating back to 1982, with limited public consultation prior to 2003. Subsequent consultations occurred intermittently, and the 2017 Regulations followed a 2015 consultation on extending charging. The legislative framework includes powers under the National Health Service Act 2006 to make and recover charges and duties to have regard to equality and health inequalities.

The 2017 Regulations introduced the advance payment requirement, recording obligations, and extended charging to NHS-funded services outside hospitals. The defendant undertook impact assessments and equality analyses prior to making the regulations. After enactment, a further review of impacts on protected groups was conducted.

Legal Issues Presented

1. Whether the defendant acted unlawfully by failing to properly consult on the advance payment and record-keeping proposals as part of the 2015 consultation exercise, or whether the claimant had a legitimate expectation of consultation on significant amendments imposing charges;
2. Whether the defendant failed to comply with the public sector equality duty under section 149 of the Equality Act 2010 and duties under sections 1B and 1C of the National Health Service Act 2006;
3. Whether permission should be granted to allow the claimant to argue that the defendant failed to take reasonable steps to acquire relevant information regarding the deterrent effect of the changes.

Arguments of the Parties

Appellant's Arguments

• The defendant failed to consult fairly on the advance payment and record-keeping requirements, which were intrinsically linked to the charging regime changes consulted upon.
• There was a legitimate expectation, based on a settled and uniform past practice of public consultation on significant amendments disadvantaging individuals, that consultation would occur before such changes.
• The defendant failed to discharge statutory duties under the Equality Act 2010 and the National Health Service Act 2006, particularly regarding the disproportionate impact on disabled persons, ethnic minorities, and women, and failed to consider equality of opportunity.
• The defendant did not adequately inquire into the deterrent effect of the changes on vulnerable individuals and public health, warranting permission to pursue this ground.

Respondent's Arguments

• The defendant was not legally obliged to consult on the advance payment and record-keeping proposals; these were separate from the consulted proposals.
• The defendant did not fail any legitimate expectation as there was no settled, unequivocal practice of public consultation on all changes to the charging regime.
• The defendant complied with the public sector equality duty and related statutory duties, having regard to equality analyses and impact assessments before and after making the regulations.
• The defendant undertook sufficient inquiries into the potential deterrent effects, relying on wide-ranging evidence, and the decision on inquiry intensity was not irrational.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed whether the defendant was required to consult on the advance payment and record-keeping proposals. It held that while public bodies must consult fairly on proposals they choose to consult upon, there is no obligation to consult on separate proposals unless a legal duty exists. The advance payment and record-keeping requirements were distinct and discrete from the consulted proposals. Thus, the defendant did not fail to carry out the consultation exercise properly, and no obligation to consult on these changes arose from past practice.

Regarding legitimate expectation, the court examined the history of consultation on charging regulations and found no settled, uniform, or unequivocal practice of public consultation on all significant amendments. Consultations had occurred sporadically since 2003 but were interspersed with unconsulted amendments. The claimant’s attempt to distinguish consultations on disadvantageous changes from non-consulted beneficial or technical changes was rejected as artificial. The court concluded there was no unequivocal assurance arising from past practice that future significant amendments would be consulted upon, including the advance payment and record-keeping provisions.

On statutory duties, the court considered the defendant’s obligations under section 149 of the Equality Act 2010 and sections 1B and 1C of the National Health Service Act 2006. The court reviewed the equality analyses, impact assessments, and other documentation before the minister at the time the 2017 Regulations were made. It found that the defendant had due regard to the potential impacts on protected groups, including low-income, disabled, and ethnic minority persons, and had considered health inequalities and mitigating measures such as exemptions and urgent treatment exceptions. The court acknowledged criticisms of the analyses but held that the defendant’s consideration was substantive and proportionate, aimed at balancing sustainability of the NHS with equality concerns.

Finally, the court addressed the claimant’s application to argue that the defendant failed to make sufficient inquiries into the deterrent effect of the changes. It held that the defendant had taken reasonable steps to acquire relevant information from various sources, and the choice of inquiry scope was a matter for the defendant’s judgment. There was no irrationality warranting judicial intervention, and permission to pursue this ground was refused.

Holding and Implications

The court’s final decision is DISMISSED the claim for judicial review of the 2017 Regulations.

The court held that the defendant was not required to conduct public consultation on the advance payment and record-keeping requirements and did not breach the public sector equality duty or related statutory duties. The refusal to grant permission on the ground of insufficient inquiry was upheld. The direct effect is that the 2017 Regulations remain valid and enforceable. No new legal precedent was established beyond the application of established principles concerning consultation, legitimate expectation, and equality duties in the context of NHS charging regulations.