Health Secretary breached equality duty in regulations for charging overseas visitors

Health Secretary Jeremy Hunt breached the public sector equality duty in framing regulations for charging overseas visitors for treatment, the High Court has ruled.

In R (Cushnie) v Secretary of State for Health the court considered the National Health Service (Charges to Overseas Visitors) Regulations 2011, which provide that former asylum seekers accommodated by the Home Office should have free access to health care.

The claimant argued that he would have qualified for support but for the fact that he was disabled and required help with personal care. Under the legislation, this meant that the support he received must not come from the Home Office but from a local authority.

As a result, he contended, he had been refused important medical treatment free of charge which he could not otherwise afford.

Ben Chataway, of Doughty Street Chambers, who acted for Cushnie with Karon Monaghan QC in the judicial review, said the court held that while the regulations did not amount to unlawful discrimination, the Health Secretary had acted unlawfully by failing to have regard to the differential impact on disabled persons. 

Four grounds were advanced by the claimant: that the regulations violated Article 8 of the Human Rights Convention; that they gave rise to unlawful disability discrimination; that Hunt failed to comply with the public sector equality duty in section 149 of the Equality Act; and that the regulations gave rise to a risk of unlawful decision-making by relevant National Health Service bodies.

The court upheld the argument about the public sector equality duty.

Mr Justice Singh said: “I am unable to accept the submission made on behalf of the secretary of state that he did have due regard to the need to promote equality of opportunity for disabled people. “

He said that the equality impact assessment carried out related to race and religion, and “simply did not address the protected characteristic of disability”.

A Department of Health spokesperson said: "We are carefully considering which groups of vulnerable overseas visitors should be exempt from NHS charges and shall take the judge's comments on board.”

Mark Smulian