The High Court has ruled that the regulations for charging non-residents in advance for non-urgent NHS treatment are lawful. In R (MP) v Secretary of State for Health and Social Care [2018] EWHC 3392 (Admin), decided yesterday, the court rejected a claim that the government had a duty to consult before introducing advance charging and that it had not complied with the public sector equality duty.

The claimant, MP, suffers from cancer and had been denied treatment because he was unable to pay in advance. Fortunately, before the hearing took place he had already succeeded in an appeal to the First-tier Tribunal and received the necessary treatment. The court heard the case anyway because of its obvious public importance. The specific regulations being challenged were the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017 (SI 2017 No. 756).

No need for public consultation

MP’s first ground of challenge was that the Health Secretary should have consulted the public before introducing advance charging before NHS treatment. The minister had consulted about other changes made under the 2017 Regulations, which were “intrinsically linked with the proposals on changes to the charging regime”. He had also done so when NHS charges had been introduced in the past, which gave MP a legitimate expectation it would happen again.

Mr Justice Lewis rejected both of those arguments. He held that the advance charging proposal was discrete from the other proposed changes which were subject to consultation and that there was no common law duty to consult because there had been no settled practice in the past:

In truth, the claimant can only seek to rely upon an alleged past practice both by ignoring instances where the exercise of the power to make regulations were not preceded by public consultation and by defining the consultations that did take place as instances where there was consultation on changes disadvantageous to the individual, and then classifying changes to record-keeping and the timing of payment as similarly disadvantageous. That is not, however, the type of situation which the courts have recognised as of a settled and uniform practice, giving rise to an unequivocal assurance, which results in the imposition of an obligation to consult before exercising a statutory power to make regulations.

Accordingly, the first ground failed.

No breach of the public sector equality duty

The second ground of challenge was that the Secretary of State had breached the public sector equality duty in section 149 of the Equality Act 2010. It is important to keep in mind that the duty is procedural rather than substantive; public authorities are allowed to take decisions and make policies which hinder the advancement of equality, but they must have regard to the effects on equality before they do so.

Incredibly, the equality impact assessment failed to consider the impact this change would have on racial inequality and found that overall the regulations were likely to advance equality because they would reduce animosity to overseas visitors. Nevertheless, Lewis J ruled that the duty had not been breached because the minister decided that equality considerations were outweighed by the need to obtain funds for the NHS. That said, the judge was not particularly taken with the department’s reasoning here:

It is, however, difficult to understand how the matters referred to, particularly in relation to requiring payment in advance, do reflect the possibility of advancing equality of opportunity in the way envisaged by section 149(1)(b) of the 2010 Act. It may be more realistic to accept that the position of resident and non-resident persons in the United Kingdom is different and the extent to which a person has a sufficient connection to the United Kingdom to justify the provision of free health care differs between those groups. In those circumstances, proposals dealing with charging for non-residents are, perhaps, unlikely to advance equality of opportunity as between the non-resident and resident population. That would not mean that the defendant had failed to have due regard to the matters referred to in section 149(1)(b) of the 2010 Act.

This conclusion is wrong. It confuses the public sector equality duty with review of the substantive decision. It may well be the case that the government would have imposed advance charging regardless of the impact on equality, but what the court should have been deciding is whether the Secretary of State had properly considered the impact on equality.

The purpose of section 149 is to force ministers to recognise when they are about to do something which negatively effects equality. That did not happen in this case because the equality impact assessment hid the negative consequences of the 2017 regulations beneath wishful thinking about the effect of advance charging. Compliance with this procedural requirement may have had no impact on the ultimate decision, but it is required by the Equality Act 2010. The High Court should have required the Secretary of State to undertake an accurate assessment of the effect on equality and reconsider the 2017 regulations.