Cushnie, R (on the Application of) v Secretary of State for Health
2014
ADMINISTRATIVE COURT
UK
CORAM
- THE HONOURABLE MR JUSTICE SINGH
Areas of Law
- Administrative Law
- Human Rights Law
- Health Law
2014
ADMINISTRATIVE COURT
UK
CORAM
AI Generated Summary
In a judicial review, the claimant challenged the NHS Regulations 2011 for discriminating against disabled individuals like himself. Relying on the Human Rights Act 1998 and the Equality Act 2010, he argued denial of essential medical treatment due to regulation gaps. While the Secretary of State argued administrative simplicity, the court found non-compliance with public sector equality duties, failing to consider disability impacts. The claimant's challenge partially succeeded.
Judgment
The Honourable Mr Justice Singh :
Introduction
In this claim for judicial review the claimant challenges provisions of the National Health Service (Charges to Overseas Visitors) Regulations 2011 (SI 2011 No. 1556) (“the Regulations”), in particular regulation 11(c).
In brief, the Regulations provide, so far as material, that former asylum claimants are entitled to NHS treatment free of charge only if they are receiving accommodation and support from the Home Office pursuant to certain statutory provisions. The claimant submits that he would qualify for such support but for the fact that he is disabled and requires help with personal care. Under the relevant legislation this means that the support he receives must come not from the Home Office but from a local authority. As a result, the claimant contends, he has been refused important medical treatment free of charge which he cannot otherwise afford. His main grounds of challenge are that the Regulations discriminate against people like him on grounds of disability, contrary to Article 14, read with Article 8, of the Convention rights, as set out in Sch. 1 to the Human Rights Act 1998 ; and that, in making the Regulations, the Secretary of State breached the public sector equality duty in section 149 of the Equality Act 2010 .
Originally the claim arose out of an alleged refusal of treatment in August 2013, when the Regulations were applied to the claimant by the relevant local health service authorities in the area where he was then living. The claim was therefore originally issued against the Bristol Clinical Commissioning Group and the University Hospitals Bristol NHS Foundation Trust. However, since he has been placed outside the Bristol area, the claim against the Commissioning Group and the Trust has been withdrawn. Permission to bring this claim for judicial review against the Secretary of State was given by Lang J at a renewed oral hearing on 21 May 2014.
The claimant’s factual circumstances
The claimant is from Jamaica and has been in the United Kingdom since 2002 but has no leave to remain in this country. He initially entered the UK in 1998 as a visitor. His application for further leave to remain was refused in 1999. On 4 April 2000 he was arrested on drugs charges. On 6 August 2000 he was removed from the UK to Jamaica. However, he returned to the UK on 23 March 2002 using a false identity and was granted leave to enter for six months but overstayed. In December 2002 and April