England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 March 2009

MR JUSTICE SILBER:

I Introduction

1. The background to the present applications is that the policy of the Secretary of State for Health ("the Secretary of State") set out most recently in paragraph 77 of The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care 2007 ("the Framework Guidance") does not allow the making of direct cash payments to individuals receiving healthcare services under the National Health Service Act 2006 ("the 2006 Act"). Such cash payments would have enabled the recipients to make their own arrangements for obtaining their medical care.
2. The issues raised on this application are:-

(a) whether this policy is unlawful as it is based on the Secretary of State's erroneous interpretation of the 2006 Act, which is that no power is conferred upon him to provide healthcare services by way of direct payments ("The Construction Issue") (see paragraphs 30 to 69);

(b) (if contrary to the first submission of the claimants those provisions do not allow the making of direct payments to individuals receiving healthcare services under the 2006 Act) these provisions infringe the claimants' rights under articles 8 and 14 of the European Convention of Human Rights ("ECHR") ("The ECHR issue") (see paragraphs 70 to 112); and, if so

(c) whether the provisions of the 2006 Act have to be read and given effect pursuant to section 3 of the Human Rights Act 1998 ("HRA") so as to give the Secretary of State such powers so as to be compatible with the claimants' rights under the ECHR ("The Section 3 issue") (see paragraphs 113 to 114 ).

3. I gave permission to both claimants to pursue their claims at the start of the present rolled-up hearing. It is common ground that the issues raised on the application of both claimants are the same and that the outcome of each of their applications must therefore also be identical. None of the interested parties nor Islington Primary Care Trust have adduced any evidence or made any submissions. Some written submissions were received from the Equality and Human Rights Commission ("EHRC"). I must express my gratitude for the admirable written skeleton arguments and submissions from counsel.
4. In this judgment, I propose first to set out details relating to the claimants (paragraphs 6 to 21) and then I will describe the policy under challenge and the statutory landscape (paragraphs 22 to 29) before considering the construction issue, the ECHR issue and the section 3 issue.
5. There is a Health Bill presently before Parliament which contains provisions which would empower (but not oblige) the Secretary of State to make direct payments to patients. These provisions would permit the making of regulations (a) about direct cash payments; and (b) about a pilot scheme for marking direct cash payments. I do not consider that the existence of these provisions assists in resolving the present dispute for reasons which I will explain. Indeed even if it is enacted in its present form, there is no certainty as to whether or when the claimants might receive cash payments. I turn now to describe the claimants' reasons for wanting cash payments so that they can use the money to obtain their own medical care.

II The Claimants

(i) Mr Steven Harrison

6. Mr Steven Harrison is a 42 year old man, who is a C5-C6 spinal tetraplegic and this means that he is paralysed in his lower limbs and partially paralysed in his upper limbs as a result of a diving accident in 1998. He has limited coordinated movements of his upper arms and does not have any hand dexterity. In consequence, he needs a lot of assistance with his personal needs including bathing, changing, bowel care, getting in and out of bed, preparing food and drink as well as in trips around his home. He also suffers from autonomic dysreflexia, a life-threatening condition associated with spinal injuries and in consequence he requires attention during the night when he is prone to attacks.
7. Mr Harrison is determined to live as full a life as possible. He finds the delivery of personal care extremely intrusive and in order to retain his dignity, it is important for him to work with carers who he trusts and with whom he is comfortable. It takes time to build up the kind of rapport with carers that is required by Mr Harrison. Indeed the longer that Mr Harrison knows his carers, the more able they are to anticipate and to respond to his needs. In consequence with carers that he knows and trusts, Mr Harrison is able to live a relatively full life attending university and going on holiday and other activities. This means that it is important that he retains control of the services that he is provided with in order to ensure that his needs are met.
8. Until July 2005, Mr Harrison was provided with direct payments by his local authority Social Services department to engage the service of a night-time carer. After July 2005, a sleep-in carer was not required as Mr Harrison's fiancée began to live with him. In January 2006, Mr Harrison's fiancée moved out of the residence and during a meeting regarding his care at the time, he asked for direct payments to be reinstated by the local authority so that his night-time care could be resumed. This did not happen and accordingly in May 2006 Mr Harrison again asked the local authority for night-time care. As a result of this request, a new assessment of his care needs was undertaken in the form of a community care assessment. It was agreed as a result of this assessment that night-time care was a necessity for Mr Harrison. The view of the local authority was that Mr Harrison's need for night-time care was of such a nature that this was a "health" need and so this was the responsibility of the National Health Service.
9. A continuing care assessment was completed by Wakefield Primary Care Trust ("PCT") on 13 June 2006 which concluded that Mr Harrison did not meet the threshold for a fully-funded package of NHS continuing care but his needs for night-time care were such that this was a "health" need for which the NHS was responsible with the social care being provided by the local authority. Mr Harrison requested that such night-time care be implemented through the re-instatement of direct payments but he remained without night-time care until November 2006. It was then decided that night-time care could not be provided by direct payments but he agreed a compromise under which care was commissioned from his preferred providers although this was not his preferred option.
10. Mr Harrison has explained that this has not been a successful compromise as he has had an increasing number of difficulties in receiving an adequate level of care from the staff employed by his preferred providers. Indeed he was left without care in September 2008 for 21 nights. The preferred providers served notice to withdraw their services with effect from 16 November 2008. After representations had been made by Mr Harrison at a meeting with the PCT and with the local authority representatives, it was agreed that he could return to social services care for his night-time provision and therefore once more access through the personal assistance of his own choosing through direct payments.
11. Difficulties with Mr Harrison's bowel management continued and the solution of the PCT was for this to be provided by the District Nurse or by an alternative agency. Unfortunately neither solution allowed Mr Harrison the independence which he desired and which could only be met by providing him with direct payments. Mr Harrison has now chosen to pay his night-time carers for the additional service out of his social security benefits notwithstanding that he is entitled to receive it free from the National Health Service.
12. In spite of requests from Mr Harrison's solicitors to persuade his responsible PCT that it had power to make direct payments, it has stated that on legal advice it has no such power. After further letters were sent to the PCT and to the Secretary of State, both of them responded by communications from their solicitors stating that the relevant legislation conferred no power to make direct payments and in particular that sections 2 and 12 of the 2006 Act did not have that effect.

(ii) Mrs Valerie Garnham

13. Mrs Garnham has been disabled since birth when she was born with a degenerative muscular condition which has caused a weakness and wasting of her muscles. She has had to use a wheelchair for all her life and she has always suffered from severe breathing problems. Since 2002 she has virtually lost the use of her hands and she now has almost 24 hours ventilation. Mrs Garnham also needs help with all aspects of her personal care and a hoist is required for transfers but she is still in good health which she puts down to good diet and the fact that her personal assistants and the carers she employs are so good at attending to her needs.
14. She has been married to Barry Garnham, who is also disabled, for 38 years and he is her main carer but in addition she employs through direct payments 6 personal assistants and carers for a total of 85 hours a week. Mrs Garnham's local council is Islington and she has received community care support from them for many years. In 1997, she became the first person in Islington to receive direct payments by which she was able to commission her own care.
15. These direct payments have enabled Mrs Garnham to have full control of her care package to have "complete control of my life". Because of her condition she needs a very intense level of continuity and consistency with much technical knowledge and very specialised training required to operate her respiratory equipment alone. Direct payments have enabled her to maintain a long and very close relationship with her six carers three of whom have been with her for 12 years, 6 years and 5 years respectively. These carers are happy to deal with Mrs Garnham and her husband and they are responsive and flexible to her needs. In consequence Mrs Garnham feels a great sense of autonomy and pride in her role as an employer. This care has enabled Mrs Garnham not only to remain well but also to lead a full life, going out frequently attending concerts, the cinema, football matches and pubs. Mrs Garnham and her husband have a caravan in which she and her husband have travelled abroad. In her view all this has been made possible through the flexibility that direct payments have given her in terms of being able to control the way the care is delivered including the arrangement of emergency care such as when her husband was admitted to hospital in 2007.
16. Following her tracheotomy in 2002 Mrs Garnham's needs have become more acute and she was assessed as requiring NHS Continuing Care, which is community-based support funded by the PCT under the NHS Acts rather than by the Council under relevant community care legislation. In spite of this the Council continued until February 2008 to provide Mrs Garnham with community care services by direct payments and then recoup the costs from the PCT.
17. On 27 February 2008, Mrs Garnham was notified by the PCT that in the light of the framework guidance, the PCT could no longer fund her NHS continuing-care package by direct payments. On 9 May 2008, the PCT wrote to Mrs Garnham to say that her care would be transferred form direct payment to an agency by the end of June 2008.
18. Because of the urgency and the fact that Mrs Garnham's solicitors had seen the Secretary of State's response to Mr Harrison's solicitors' letter before claim, proceedings were instituted against the Secretary of State. Islington PCT was joined in as a defendant for the purpose of obtaining interim relief. Indeed Bean J ordered that the PCT should continue to make direct payments pending the resolution of this case.
19. Mrs Garnham considers that if direct payments are removed she will lose the benefits of a great sense of autonomy which comes from direct payments and that such a decision would destroy her life and that of her husband. The PCT's proposal to replace payments by engaging an agency to deliver the services is unacceptable especially as her existing carers do not wish to become employees of an agency. Mrs Garnham's experience of receiving care through agency staff before 1997 was not happy as communication was more difficult and as there had been occasions of gross breaches of trust.
20. Mrs Garnham's Consultant Physician, Dr. Nicholas Hart, has written to the PCT to support Mrs Garnham's request for direct payments to continue and he noted that her current care has been so successful that she has suffered no serious chest infection for six years which is "a testament to the excellent care provided by the carers, but also as a result of Valerie's expert management of her care". Both he and Mrs Garnham's GP are extremely concerned about the effect on her if direct payments were to cease.

(iii) Conclusions on the advantages to the claimants of receiving direct payments for health care

21. There is clear evidence that direct payments for medical care increase both the claimants' degree of choice and flexibility in relation to medical care as well as enhancing their autonomy so that a greater degree of independent living can be enjoyed by each of them. Indeed this is not in dispute as in the witness statement adduced by the defendant from Mr Andrew Sanderson a civil servant in the Department of Health, he accepted that:-

"research suggests that direct payments have substantially increased the satisfaction of the recipient as well as delivering better outcomes and greater independence than traditional social care models".

III The Policy Under Challenge and the Statutory Provisions.

22. The Secretary of State's policy that direct payments are not available for healthcare services has been set out in the Framework Guidance which provides that:-

"77. NHS services cannot be provided as part of an Individual Budget or through Direct Payments, and Our Health, Our Care, Our Say: A New Direction for Community Services makes it clear that these will not be extended to NHS healthcare in the near future. This means that when an individual begins to receive NHS Continuing Healthcare they may experience a loss of control over their care which they had previously exercised through Direct Payments or similar. It should be emphasised that PCTs can commission to maximise continuity of care, i.e. to maintain a similar package of care to that already in place, and in determining whether to maintain an existing package, the PCT should take into account the individual's preferences wherever possible".

23. The PCT's decisions in both the cases not to provide direct payments to each of the claimants is based upon the Secretary of State's policy which, in turn, is based upon the Secretary of State's view that there is no power to provide direct payments under the NHS Acts. His views to that effect appear in the witness statements of Andrew Sanderson served on behalf of the Secretary of State. I now turn to the relevant statutory provisions.
24. Section 1 of the 2006 Act provides that:-

"(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement--

(a) in the physical and mental health of the people of England, and

(b) in the prevention, diagnosis and treatment of illness.

(2) The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act."

25. Section 1(3) of the 2006 Act provides that:-

"The services so provided shall be free of charge except in so far as the making and recovery of charges is expressly provided for by or under an enactment, whenever passed.

26. Section 2 of the 2006 Act provides, in so far as material, that:-

"(1) The Secretary of State may --

(a) provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act, and

(b) do anything else which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty."

27. So far as is material, section 3 of the 2006 Act states that:-

"(1) The Secretary of State must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements- (a) hospital accommodation, (b) other accommodation for the purpose of any service provided under this Act, (c) medical, dental, ophthalmic, nursing and ambulance services, (d) such other services or facilities for the care of pregnant women, women who are breastfeeding and young children as he considers are appropriate as part of the health service, (e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service, (f) such other services or facilities as are required for the diagnosis and treatment of illness."

28. Section 12 provides, again so far as relevant, that:-

"(1) …may arrange with any person or body to provide, or assist in providing, any service under this Act".

29. The statutory functions under these provisions are delegated by the Secretary of State to PCTs by Regulation. 3(2) and Schedule 1 part 2 of the NHS (Functions of SHAs and PCTs and Administration Arrangements) (England) Regulations 2002, SI 2002/2375 (as amended). The PCTs are then under a duty under Regulation 3(7)(a) of those regulations to discharge those functions to those patients who are registered with a GP in their area. It follows that the power of the PCTs to make cash payments to patients for medical care is the same as that of the Secretary of State.

IV The Construction Issue

(i) The Claimants' Case

30. The case for the claimants is that the Secretary of State's policy of refusing to make cash payments to patients for medical care is unlawful as it is based on an erroneous interpretation of the 2006 Act, which is that it contains no power to make direct cash payments to those entitled to receive healthcare services. The argument of Mr Paul Bowen, counsel for the claimants, is that a proper application of the conventional approach to statutory interpretation leads to the conclusion that section 2 of the 2006 Act confers a power on the Secretary of State to make direct cash payments to the claimants.
31. The claimants' case is that the making of direct payments is one of the means by which the Secretary of State may either "provide" or "secure the provision of services" in accordance with his duty under section 1(2) or under section 3(1)(e) of the 2006 Act. It is submitted by Mr Bowen that a direct cash payment can be one of those "services", which the Secretary of State is under a duty to perform under either section 1(2) of the 2006 Act or section 3(1)(e) of the 2006 Act. It is pointed out that under section 17(6) of the Children Act 1989 that the "services" provided under section 1 may in exceptional circumstances include "cash".
32. The second argument of the claimants is based on the Secretary of State's powers under section 2(1) of the 2006 Act, which is to "(a) provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act and (b) do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty". One of the duties specified in section 2(1) of the 2006 Act is set out in section 1(2) of the 2006 Act which requires the Secretary of State to "provide or secure the provision of services in accordance with this act".
33. Mr. Bowen contends that the obligation to provide or "secure the provision" of healthcare services means that the Secretary of State now has such powers as are calculated to facilitate or are conducive to or are incidental to the discharge of that duty and that such powers would include the making of direct cash payments to patients, such as the claimants.
34. He proceeds to submit that this power in section 2 (1) (b) of the 2006 Act (" to do anything else which is calculated to facilitate, or is conducive or incidental, to the discharge of such a duty") is expressed in almost identical terms to those used in section 111 of the Local Government Act 1972 ("a local authority shall have power to do anything …which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions").
35. This is a statutory expression of the common law principle referred to by Lord Selborne LC in Attorney General v Great Eastern Railway Company (1880) 5 App Cases 473, 478 which was cited with approval by Lord Carswell when giving the only reasoned judgment of the Appellate Committee in Akumah v Hackney LBC [2005] 1 WLR 985, 993. Lord Selborne said that the doctrine of ultra vires:-

"... ought to be reasonably, and not unreasonably, understood and applied and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires".

36. An associated argument of Mr Bowen is that the Secretary of State can make direct payments to "secure the provision" of healthcare services that he is obliged to provide under section 1(2) of the 2006 Act. It is pointed out that the Secretary of State may "secure the provision" of services under section 1(2) of the 2006 Act by engaging with an intermediary that does not itself provide the service as in the case of R (on the application of Gunter) v South Western Staffordshire Primary Care Trust ...2006) 9 CCLR 121 and there is no reason why that intermediary could not include the patient so that cash payments may be made to him or her.
37. An alternative submission, which was initially put forward by Mr Bowen but which was later abandoned by him, was that a power to make direct cash payments to patients for medical care may be derived from section 12 of the 2006 Act because if the Secretary of State makes direct payment to a service user to a contract (namely a patient) with a third party to provide healthcare services to that patient, then he (that is the Secretary of State) may be said to be arranging with the service user himself or herself "to provide, or assist in providing" that healthcare service.
38. Mr Bowen in his reply correctly in my view accepted that the words "arrange with any person or body to provide, or assist in providing" in section 12 of the 2006 Act must refer to an arrangement with a third party by parity of reasoning with the decision of Laws J (as he then was) and by the Court of Appeal in R (Hammersmith and Fulham LBC) v Secretary of State for Health [1997] EWHC Admin 658; [1997] 1 CCLR 96 (affirmed by [1998] EWCA Civ 1300). In that case, the claimant local authorities argued that section 21 of the National Assistance Act 1948 allowed for the making of cash payments to persons in receipt of accommodation in order that such persons might purchase meals and other requisites such as toiletries. Section 21 required local authorities to "make arrangements for providing" residential accommodation together with other services, amenities and requisites provided with it to certain people in need of care and attention. Laws J (as he then was) at first instance and subsequently the Court of Appeal held that there was no power to make cash payments for two reasons.
39. The first reason for those decisions was that the expression "make arrangements for providing" meant in context that the outcome of any such arrangements was that a person should directly receive in kind the forms of provision contemplated by the statute and nothing else. As Sir Christopher Staughton explained when giving the judgment of the Court of Appeal "there is no hint or suggestion that the arrangement may be made to provide those persons with cash which they may spend on acquiring accommodation". The second reason for the decision of the Court of Appeal was that the arrangements that had to be made should consist of practical measures whereby the authority fixed the means by which the provision was to be delivered. Laws J explained at page 103 E that:-

"The making of cash payments, accompanied by whatever insistence they be used only for the statutory purpose contradicts this premise and, in my judgment, lies outside the statutory purpose".

40. In my view, Mr Bowen was right in the light of the decision and reasoning in the Hammersmith and Fulham case to make this concession which means that it is necessary to focus solely on sections 1, 2 and 3 of the 2006 Act.

(i) The Secretary of State's case

41. Miss Eleanor Grey, counsel for the Secretary of State, contends that on the ordinary meaning of the statutory provisions, direct payment of cash to patients in lieu of providing healthcare services is not allowed. She also points out that permitting direct payments to patients would be directly contrary to the fundamental features of National Health Service legislation and that would overlook the historical context of that legislation.

(ii) Discussion – Can cash payments to patients be "services" which can be provided by the Secretary of State?

42. At the forefront of the claimant's case is the contention that the "services" which are to be provided by the Secretary of State could on the true interpretation of the 2006 Act include the payment of cash. The word "services" is not defined in the 2006 Act. My starting point is to bear in mind that the word "services" in the 2006 Act is an ordinary English word and that in order to ascertain its meaning, I must also consider whether any external aids, such as other legislation or the history of the National Health Service, would assist.
43. Having carried out that exercise, I am unable to agree with Mr. Bowen's submission that "services" under the 2006 Act can be provided by cash payments as four reasons individually and cumulatively show that the "services" (which the Secretary of State has to provide) do not include cash payments but instead that they mean solely healthcare services.
44. First, where a word, like services, has no one settled meaning, it must take its colour from the context in which it is found and a fundamental aspect of that context is the use given to that word in other neighbouring provisions of the same Act. So there must be at least a strong presumption that a word like "services" has and retains the same meaning in its neighbouring statutory provisions. Indeed after I reached that conclusion, I happened to read the judgment of Toulson LJ in N v London Borough of Barking and Dagenham and another ([2009] EWCA Civ 109) in which he said that "46. First, there is a strong presumption that where the same formula is used in different parts of the same Act it is intended to bear the same meaning". That presumption must become even stronger when the same word is used in the same section.
45. The application of that approach is illuminating because section 1(3) of the 2006 Act states "the services so provided must be free of charge" and the word "services" and that sub-section refers back to the place where the word "services" is first used. That is in the immediately preceding provision which is section 1(2) of the 2006 Act. It clearly does not make sense for those "services" to mean the payment of cash because otherwise section 1 (3) would mean that among other services, cash payments must be provided free of charge. I consider that for section 1(3) of the 2006 Act to have any meaning, the word "services" must clearly mean the provision of medical services. It is difficult to see if the word "services" had been intended to include cash payments how section 1(3) of the 2006 Act would have been drafted as it had been; that is a telling point against the construction advocated by Mr Bowen.
46. Second, the Act expressly specifies some circumstances in which cash payments can be made by the Secretary of State such as "payments by way of grant towards costs incurred" in respect of vehicles for the disabled (Schedule 1 paragraph 10(3) of the 2006 Act). Less importantly, there is the provision that "assistance may be given by grants or otherwise" in respect of research (Schedule 1 Paragraph 13(6) of the 2006 Act). The presence of those provisions in the 2006 Act indicates that the parliamentary intention was that no cash payments could be made as otherwise there would be no need especially these provisions especially the one to which I have referred relating to vehicles for the disabled.
47. Bennion on Statutory Interpretation (5^th Edition- 2008) at page 1251 cogently explains the expressio unius est alterio unius rule of interpreting statutes as "being based on the assumption that (unless some other reason appears) there was no reason for the drafter to mention some only of the possible items unless the intention was that they were the only ones to be dealt with, so that the rest are excluded". In reaching this conclusion, I have not overlooked Mr. Bowen's submission that the provisions in Schedule 1 to which I have referred do not have that effect but he has not put forward any cogent reason in support.
48. Third, it is noteworthy that the services referred to in the 2006 Act are healthcare services. For example, section 3 of the 2006 Act refers to "medical, dental ophthalmic, nursing and ambulance services" and a search through the remainder of the Act shows that all the services specified in, for example, sections 3 and 4 of the 2006 Act are healthcare services. There is a huge gulf between the nature of those services and the nature of payments in cash. This indicates that the word "services" does not mean making cash payments at least when considered with the other three factors to which I have referred in the preceding paragraph and the history of the NHS to which I now turn.
49. Fourth, I agree with Miss Grey that assistance in construing the word "services" can be obtained from the history of the National Health Service. Its introduction as is well-known was preceded by the famous report of Sir William Beveridge ("the Beveridge report") entitled Social Insurance and Allied Services, (1942) (Cmd 6404) which recommended at paragraph 105 at page 48 that:-

"[The s]eparation of medical treatment from the administration of cash benefits and the setting up of a comprehensive medical service for every citizen covering all treatment and every form of disability under the supervision of the Health Departments".

50. The Beveridge report was followed by a White Paper entitled A National Health Service (1944) (Cmd 6502) and it described the rationale of the change as being that that:-

"so far as individual members of the public are concerned they will be able to obtain medical advice and treatment of every kind without charge except for the cost of certain appliances"(page 46)

51. I agree with Miss Grey that it was clearly envisaged that the National Health Service would provide free treatment and that it would not make cash payments to patients in lieu. No persuasive submissions to the contrary have been adduced. The White Paper was followed by the National Health Service Act 1946 which provided in section 1(1) that for the purpose of establishing a comprehensive service it would be the duty of the Minister of Health "to provide or secure the effective provision of services in accordance with the following provisions of this Act".
52. The 1946 Act went on to provide for various NHS services "to such extent as [the Minister of Health] considers necessary to meet all reasonable requirements" (section 3). It was clear at that stage that the NHS services were medical services. The main relevant provisions of the 1946 Act have been largely replicated in subsequent legislation including the National Health Services Act 1977 and the 2006 Act. Lord Woolf M.R. said that the language of sections 1 and 3 of the 1977 Act "can be readily traced back to the original legislation which founded the welfare state after the last war" (R v North and East Devon HA ex p Coughlan [2001] QB 213 [20]). Indeed, section 1 of the 2006 Act is in very similar terms to section 1 of the 1946 Act. It is appropriate now to mention some relevant principles of statutory construction which assist in showing the relevance and value of historical material in ascertaining what provisions in the 2006 Act mean.
53. First the importance of the historical context of legislation as an aid to its construction was considered in R (on the application of Quintaville) v Secretary of State for Health [2003] 2 AC 687 by Lord Bingham of Cornhill, who said that when construing statutes:-

".. the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment". ...page 695 [8]).

54. A second relevant principle of construction stresses the importance of ascertaining the pre-existing law and any relevant committee reports because when faced with wording in legislation:-

"in order to understand their meaning, the court must inform itself as to what the existing law was on this technical subject matter. In order to do this it may have recourse to decided cases, to legal text-books or other writings of recognised authorities, among whom would rank the members of the committee. Their report contains a summary of the existing law, as they understood it. As such it is part of the material to which the court may have recourse for the purpose of ascertaining what was the existing law on the subject matter of the Act" (per Lord Diplock in Black-Clawson International Ltd v. Papierwerke Waldhof-Aschaffenberg AG [1975] AC 591 at 637).

55. In my view, the Beveridge report and the White Paper are of importance in showing the historical context which was that medical services were to be provided directly to the patient and not by means of cash payments. This approach was embodied in the 1946 Act, which was repeated in both the 1973 and 2006 Acts. That leads to the conclusion that this approach supports my conclusion that a "direct payment" cannot be a service and that it was not the parliamentary intention.
56. In reaching that conclusion I have also borne in mind the statements of Lord Wilberforce in his dissenting speech in Royal College of Nursing v Department of Health [1981] AC 800, which Lord Bingham of Cornhill subsequently said in Quintaville (supra) [10] was thereafter to be regarded as authoritative. Lord Wilberforce said that:-

"In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question "What would Parliament have done in this current case – not being one in contemplation – if the facts had been before it?" attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself."

57. I must mention at this point that the claimants' case on "always speaking" statutes. Mr. Bowen submits that the 1946 and 1973 Acts were intended to be "always speaking" statutes. The Secretary of State does not suggest that the meaning of those Acts is frozen in time, as he not surprisingly accepts that there is power under the 2006 Act (and its predecessors) to provide new forms of medical treatment and to treat new diseases, which were not known when the original legislation was enacted. The limitations of the "always speaking" doctrine must be borne in mind. They include, as Bennion (supra) explains, the facts that:-

"288 (5) Whether an Act is an ongoing or fixed-time Act it may be necessary to determine how its meaning was understood at the time it was passed. For this, reference may be made to contemporary sources.

(6) Nothing in the foregoing subsections of this section of the Code justifies a construction which alters the meaning of the words used in the enactment in ways which do not fall within the principles originally envisaged by the enactment". (page 890)

58. The core principles originally envisaged in the 1946 and 1973 Acts included principles that (i) the NHS was a publicly provided and publicly organized service; and that (ii) medical treatment was to be separated from the administration of cash benefits. So I agree with Miss Gray that even accepting an 'always speaking' construction, the relevant provisions cannot be strained to encompass the making of direct payments.

(iv) Discussion – Does the duty of the Secretary of State to "secure the provision" mean that cash payments can be made?

59. Another way in which the claimants' case has been put by Mr Bowen is that the Secretary of State can make direct payments to "secure the provision" of healthcare services, which he is obliged to provide under section 1(2) of the 2006 Act. It is said that the Secretary of State may "secure the provision" of services under section 1(2) of the 2006 Act by engaging with an intermediary that does not itself provide the service (as in Gunter (supra)) and that such intermediary might also include the patient himself or herself.
60. There are three reasons which individually and cumulatively have convinced me why I must reject this contention of Mr Bowen.
61. First, Mr. Bowen's submission that the phrase "secure the provision" of healthcare services can include the making of direct payments is inconsistent with the reasoning of the Court of Appeal and of Laws J in the Hammersmith and Fulham (supra) case where the making of direct payments was held to be inconsistent with the ordinary meaning of the phrase "make arrangements for providing". Those words are probably wider than the words in section 1(2) of the 2006 Act of "secure the provision" or at least as comprehensive as those words.
62. Second, the claimants' case on section 2(1)(b) of the 2006 Act means that section 12 of the 2006 Act is otiose as there would then be no need to include a provision in the 2006 Act enabling the Secretary of State to arrange with other persons or bodies to provide services. In order to meet this point, the claimants are compelled to contend for a reading of the Act to the effect that section 12 must be regarded as only one means by which the Secretary of State's duties to secure the provision of services through third parties may be met.
63. I cannot accept that contention as it contradicts well-established principles of statutory construction, including the principle that special provisions override general ones (generalibus specialia derogant). Bennion (supra) explains the principle, which is applicable to this case, in this way:-

"Where the literal meaning of a general enactment covers a situation for which specific provision is made by some other enactment within the Act or instrument, it is presumed that the situation was intended to be dealt with by the specific provision."(page1164)

64. Third, I agree with Miss Gray that the claimants' submissions should be set against Mr. Bowen's correct concession (in opening) that section 2(1)(b) of the 2006 Act is merely a "sweep-up" provision which may only be employed in relation to "something which the Secretary of State already has a power or duty to do". If Mr. Bowen had not made that concession, I would have reached the same conclusion as I do not consider that section 2(1) (b) of the 2006 Act gives the Secretary of State any power or any duty additional to powers and duties which he already possesses. Therefore it is necessary to look somewhere other than section 2(1)(b) of the 2006 Act for the source of the power to make direct payments and in my view there is no such power.

(v) Does the Secretary of State have incidental powers to make cash payments?

65. It is also said that in order to make cash payments to the claimants, the Secretary of State is entitled to do so by exercising his power under section 2(1)(b) of the 2006 Act, which enable him to "do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty". I have already referred in paragraph 35 above to the approach of Lord Selborne but what is perhaps more pertinent is the fact that the wording of section 2(1)(b) of the 2006 Act upon which the claimant relies, as the claimants accept, is in similar terms to section 111(1) of the Local Government Act 1972, which was based on the common law rule that:-

"the powers which are given by an Act of Parliament, like that now in question, extend no farther than is reasonably stated in the Act, or is necessary and properly required for carrying into effect the undertaking and works which the Act had expressly sanctioned".

66. This wording shows the limitations on the significance and value of the general words set out in section 2(1) (b) of the 2006 Act "to do anything else which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty".
67. There are a number of reasons why I do not consider this submission helps the claimants to show that the Secretary of State was entitled to make cash payments to the claimant. First, an ability to make direct payment is plainly not "necessarily and properly required" in order for the Secretary of State to carry out any of his duties under the 2006 Act. The overwhelming majority of patients in this country can and do receive their medical services directly from the National Health Service. Indeed there is no reason why these services required by the claimants could not be provided directly although I appreciate the claimants have genuine and understandable reasons for believing that with cash payments they will enjoy greater personal autonomy and more acceptable medical care than if they receive their medical care directly in kind.
68. Second, reliance on a similar provision to section 111 was part of the case for the claimants in the Hammersmith and Fulham (supra) case but it was rejected by Laws J and which was not pursued in the Court of Appeal. Third, the submission ignores the statutory scheme to which I have referred to in paragraph 46 above and which includes provisions in Schedule 1 of the 2006 Act for cash payments to be made in certain limited circumstances but those circumstances do not include the cash payments which the claimants seek.

(vi) Conclusion on the Construction Issue

69. For the reasons which I have sought to explain, the services which the Secretary of State is obliged and entitled to perform do not include making cash payments. Those reasons relate not merely to the historical context of the relevant provisions for the 2006 Act which are in material terms similar to those in the 1973 Act and the 1946 Act and which in turn embody the Beveridge proposals; these show that health services are to be provided not by cash payments but by medical professionals and others administering services to patients. There are a number of drafting reasons which support this conclusion and which I have already sought to explain and which I will not repeat such as that section 1(3) of the 2006 Act says of the services which the Secretary of State has to perform in promoting the health service "must be free of charge" (except in matters not material to this application). It would make no sense if such services were to include cash payments. Finally, the decision in the Hammersmith and Fulham case (supra) undermines part of the claimants' case as do the other factors which I have set out in considering Mr. Bowen's submissions.

V The ECHR Issue

(i) Introduction

70. Mr Bowen contends that even if on a conventional interpretation of the 2006 Act there is no power to make direct payments for medical services, then in that event the relevant provisions must be read and given effect to so as to confer such a power under section 3 of the HRA in order to ensure compliance with the claimants' convention rights under article 8 taken with article 14, which provides that:-

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".

71. Mr Bowen does not suggest that article 8 of the ECHR contains an obligation to provide direct payment for healthcare but rather that the failure to make direct payments for healthcare contravenes article 14 (prohibition of discrimination) when taken together with article 8.
72. Counsel in their submissions dealt with a number of issues, which they considered relevant to determining whether there has been unlawful discrimination under article 14. The questions which they considered were:-

(a) Does the fact that the 2006 Act provide for the provision of medical services to patients other than by cash payments mean that the present claims fall within the ambit of article 8 of the ECHR so as to engage article 14?

(b) Is there a difference between those who obtain medical services under the 2006 Act like the claimants and those who receive community care, who are the comparators selected by the claimants' legal advisers in respect of their right to receive cash payments rather than services ?

(c) If so, is any such difference in treatment between the claimants and these comparators based on a prohibited ground that is one based on either one of the grounds specified in article 14 or upon a personal characteristic falling within the term "other status" in article 14?

(d) If so are the claimants in an analogous (or relevantly similar) situation to persons to whom direct payments are provided by local authorities under community care legislation? and

(e) Is the difference in treatment in respect of the right to obtain cash payments between the claimants and the comparators justified in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?

73. These questions were based on the approach in some cases but it is common ground that questions (d) and (e) may need to be read together (see Ghadian v Ghodin-Mendoza [2004] 2 AC 557, 605). The case for the claimants on that approach using the questions in paragraph 72 above is that the answers to questions (a) to (d) is in the affirmative and that the answer to question (e) is in the negative. The Secretary of State takes a diametrically opposed view contending that the answers to questions (a) to (d) is in the negative while the answer to (e) is in the positive.
74. There is, however, now clear authority according to Lord Walker of Gestingthorpe that:-

"Lord Nicholls demonstrated that the step by step approach obscures the real issue in the case, which is why the complainant had been treated as she had been treated. Until that question was answered it was impossible to focus on the question of comparators…. Lord Rodger of Earlsferry agrees with Lord Nicholls. So do I, and I think that that Lord Nicholls' observations are even more apposite to the more open-textured language of article 14" (R(Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, 194 [63]).

75. Lord Nicholls of Birkenhead indeed said in Carson (supra) that:-

"3…Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact."

76. It does not matter whether this test is applied or whether the step by step approach is adopted as in this case for reasons, which I will explain, the same result is reached whichever test is applied. The reasons for that conclusion include the facts that the Secretary of State was pursuing a legitimate aim in an appropriate and proportionate manner and that the claim of the claimants is not very closely connected with their article 8 rights as to enable an article 14 claim to be made. As counsel both applied the step by step approach, I will start by doing the same.

(ii) Ambit

77. The case for the claimants is that their complaint falls within the ambit of article 8 which provide that "Everyone has the right to respect for his private and family life, his home and his correspondence". Mr. Bowen relies on the fact that there is clear evidence to which I have referred in section II above that both Mrs Garnham and Mr Harrison have benefited first from the sense of autonomy and second the ability to control the choice and activities of their carers which they can achieve from receiving direct cash payments.
78. The Secretary of State has accepted that it is arguable that the claimants' case falls within the ambit of article 8 but his case is that the correct conclusion is that the claimants' complaint (namely the lack of any power in the NHS and or PCTs to make cash payments for claimants or others in respect of healthcare) does not fall within the ambit of article 8.
79. The appropriate starting point is, as Lord Bingham of Cornhill explained in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 at 493, that:-

"13..Plainly, expressions such as "ambit"," scope", and "link" used in the Strasbourg cases are not precise and exact in their meaning. They denote a situation in which a substantive Convention right is not violated, but in which a personal interest close to the core of such a right is infringed. This calls, as Lord Nicholls said in M at para. 14 for a value judgment. The court is required to consider, in respect of the Convention right relied on, what value that substantive right exists to protect" (see also R v Countryside Alliance and others) v Attorney General [2008] 1 AC 719 at page 760 [60] per Lord Hope of Craighead ).

80. Much of Lord Bingham's reasoning is derived from the decision of the House of Lords in M v Secretary of State for Work and Pensions [2006] 2 AC 91 in which a woman would have been able to secure a reduction in her liability for the maintenance of her child if she had been living with a male partner. She was, however, unable to qualify because her sexual orientation meant that instead she chose to live with a female partner. The House of Lords decided that the alleged act of discrimination on the ground of her sexuality did not fall within the ambit of article 8 (namely her right to family life and in particular her right to live with a female partner) because the loss of the opportunity to gain the financial advantage was too remote from any interference with the claimant's article 8 rights.
81. Mr Bowen seeks to derive assistance from the decision in Pentiacova v Maldova (Application number 14462/03 0 4 January 2005) in which the Strasbourg Court held as inadmissible a complaint about insufficient state funding for dialysis equipment. Mr Bowen contends that although the court found the application inadmissible it did find that article 8 was in the words of paragraph 2 of his written reply "applicable (i.e. the treatment complained of fell within the scope of the article". I am unable to agree because the court said at page 13 that it was:-

"prepared to assume for the purpose of this application that article 8 is applicable to the applicant's complaints about insufficient funding of their treatment".

82. For a claim to fall with in the ambit of a convention right, it must be very closely connected to it because Lord Walker of Gestingthorpe explained (with my underlining added) in M v Secretary of State for Work and Pensions (supra) [2006] 2 AC 91 at 120 that :-

"84.Similarly the cases in which article 14 has been considered in junction with the family law limb article 8 were all (whichever way they were ultimately detailed) concerned with measures very closely connected with family life; Petrovic v Austria 33 EHRR 307 (parental leave), Matta Esteves v Spain (social security benefit for surviving spouse) and Fretté v France 38 EHRR 438 (adoption) by contrast Logan v United Kingdom 22 HER CD 178 (the CSA case) is an example of unsuccessful reliance on a much more remote link (financial resources to visit absent children)".

83. I therefore accept the submission of Miss Grey that for the claim to fall within the ambit of article 8 for article 14 purposes, a remote link with article 8 will not suffice as it is necessary there should be a very close connection with the subject matter of article 8 (namely respect for private and family life).
84. Applying those facts to this case, I bear in mind that there is clear evidence to which I have referred in section II above that both Mrs Garnham and Mr Harrison have benefited because of the enhanced autonomy and the control over their carers which they can achieve if they receive direct cash payments. As I have explained, Mr Andrew Sanderson a senior civil servant at the Department of Health in his witness statement stated that:-

"research suggests that direct payments have substantially increased the satisfaction of the recipient as well as delivering better outcomes and greater independence than traditional social care needs".

85. Miss Gray makes the point that even in the absence of direct cash payments, it is clear that the claimants received and still receive adequate medical treatment even though significantly they lack the ability to organise their own care and to select their own carers. The difficulty for the Secretary of State is that there is clear evidence of the serious adverse consequences for the claimants if they do not receive cash payments to enable them to purchase medical services.
86. In the case of Mrs. Garnham, Dr. Nicholas Hart, who is a consultant physician at St Thomas' Hospital, has explained the beneficial effects for Mrs. Garnham of receiving direct payments, he noted that her current care has been so successful that she has suffered no serious chest infection for six years which is:-

"a testament to the excellent care provided by the carers, but also as a result of Valerie's expert management of her care".

87. Both he and Mrs Garnham's GP are extremely concerned about the effect on her if she ceased to receive cash payments which enabled her to employ and control her own cares. Dr. Hart has stated that:-

"This is not the first instance that this situation has arisen for one of my patients. These wholly exceptional individuals who are physically disabled managed to maintain independent living in all aspects of their lives and this is the direction that we encourage. The move to change the current way that the care is funded could be extremely counter productive in Valerie's case and I would be grateful if you could carefully consider making an exception to this rule. Islington PCT would not be the first to make an exception and I strongly support Valerie's claim to retain her own direct payments for her carers."

88. Mrs. Garnham is not alone in having legitimate grounds for concern about her health if cash payments to patients were to be no longer permitted because Mr. Harrison in a witness statement explains that if he does not receive direct payments, he cannot select the carers he wants and who he needs to help him cope with his vast number of serious disabilities and wide-ranging health problems. He shows convincingly the importance to him of having skilled carers who are very familiar with his multifarious problems and that he can only receive this critically important care if he receives cash payments and then engages his carers directly. Mr. Harrison has given an example of the medical problems which he experiences is a very serious and unusual problem with bowel management which if nor carried out correctly, this will cause him to suffer a potentially fatal autonomic dysreflexia episode. He explains that as he does not now receive cash payments, he has to use his social security benefits in order to engage his own carers to provide the care he needs and which he would have paid for from cash benefits if the Secretary of State had permitted them to be made. If the direct health care which Mr. Harrison receives is in some way inadequate, this is regrettable and it might mean that the providers are at fault in their choice of carers.

89. A. I must bear in mind first the high threshold ( " very closely connected") required for showing that a claim falls within the ambit of article 8 and second the medical services available to the claimants if they do not receive cash payments. These factors lead me to the conclusion that the difference in the particular case of the private lives of each of the claimants without the benefit of cash payments as compared with what it would have been if they had received cash payment with which they could have bought medical services is not so substantial in their particular case as to constitute a "very close connection" with the respect for private and family life which is the subject matter of article 8.

89. . In reaching this conclusion, I have not overlooked the interesting submission of Mr. Bowen that the duty to promote independent living has developed to the stage that it can be seen as a core domestic and international human right obligation. He relies first on article 19 of the UN Convention on the Rights of Persons with Disabilities which gives rights to disabled people. The insuperable difficulty about that submission is that even if (contrary to my understanding) that provision would require a state to make cash payments; it will not assist the claimants as the Convention has not been ratified by the United Kingdom. The second provision relied on by Mr. Bowen which I have not overlooked is section 49 of the Disability Discrimination Act 1995 which places a duty on public bodies to have due regard to " the need to promote equality of opportunity between disabled persons and other persons". I am unable to understand why this provision assists in showing that the claimants' case falls within the ambit of article 8 because after all people are not disabled receive their treatment for the NHS in the form of medical services rather than in the form of cash payments.

(iii) Is there a difference in treating between those who obtain medical services under the 2006 Act like the claimants and those who receive community care, who are the comparators selected by the claimants' legal advisers in respect of their right to receive cash payments rather than services ?

90. There is a clear difference between those who receive community care and those who receive medical care as those in the former category unlike those in the latter group are entitled to receive cash payments.

(iv) If so, is any such difference in treatment between the claimants and these comparators based on a prohibited ground that is a ground based on either one of the grounds specified in article 14 or upon a personal characteristic falling within the term "other status" in article 14?

91. AsI have explained, article 14 precludes discrimination "on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, and association with a national minority, property, birth or other status". In this case, the case for the claimants is that they rely upon the ground of "other status" which they identify as "the status of being a disabled person in receipt of health care services" (the claimant's skeleton at paragraph 69).
92. It thus becomes necessary to consider whether this description falls within the expression "other status" although it is in Lord Bingham's words in the Countryside Alliance case (supra) "plainly incapable of precise definition" (page 748 [24]). The House of Lords has adopted the test of the Strasbourg Court in Kgeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711 [56] which referred to "discriminatory treatment having at its basis or reason a personal characteristic ("status") by which persons or groups of persons are distinguishable from each other" (see R (S) v Chief Constable of The South Yorkshire Police [2004 1 WLR 2196 [48] and R (Clift) v Secretary of State (supra) [27-28]).
93. Miss Grey points out that it is established by authority such as Clift that a personal characteristic cannot be defined by the deferential treatment of which a person complains but she contends that it was what the claimants are seeking to do in this case. I am unable to agree as this contention confuses the claimants' case on their discriminatory treatment with their case that their "other status" is that of disabled persons in receipt of healthcare services as opposed to community care services.
94. It is clearly settled law that "a generous meaning" should be given to the words "or other status" as was explained by Lord Hope of Craighead in Clift (supra [48]) and by Lord Neuberger of Abbotsbury in R (on the application of RJM) v Secretary of State for Work and Pensions [2008] 3 WLR 1023 [42]. In that case, Lord Neuberger explained that the concept of personal characteristic and status "generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him" [45]. Lord Hope also focussed on the significance of personal characteristic when he said that "we can take it that status means a personal characteristic by which persons or groups of persons are distinguishable from each other" (AL(Serbia) v Secretary of State [2008] 1 WLR 1434, 1439-1440[9]). Baroness Hale of Richmond in the same case stated that "in general, the list [of personal characteristics] concentrates on personal characteristics which the complainant did not choose and either cannot or should not be expected to change" (at page 1445 [26]).
95. Applying those principles, in the same way as in RJM (supra), it was held that homelessness is "another status", I consider that the difference between the claimants and the comparators is based on status namely that that each of them was a "disabled person in receipt of healthcare services".

(v) If so are the claimants in an analogous (or relatively similar) situation to persons to whom direct payments are provided by local authorities under community care legislation?

96. There are substantial differences between community care legislation and the services provided by the NHS under the 2006 legislation. First, under the community care legislation, means-tested financial contributions to the provision of services by their recipient is required in most cases. Indeed, Section 22 of the National Assistance Act 1948 (as originally enacted) provided for payment for accommodation provided under Section 21 of that Act while charging for domiciliary care is covered by Section 17 of the Health and Social Services and Social Security Adjudications Act 1983.
97. In Coughlan (supra) a complaint was made by one claimant that whilst nursing services were provided as part of social care, they were subject to the same rules as to payment as other social services which meant that they would have to be paid for by the recipient of the services, unless the resources of that person meant that he or she would be exempt from having to make payment. This contrasts with the position of NHS nursing care under the predecessor of the 2006 under which it was free (see Coughlan supra [30 (c)]).
98. Second, another difference between the health service and community service regimes is that community care legislation imposes a duty on local authorities to meet the eligible needs of an individual as is set out in, for example, Chronically Sick and Disabled Persons Act 1970, section 2(1) and National Health Service and Community Care Act section 47.
99. Third, the different regimes for providing healthcare under the 2006 Act and community care deal with separate policy issues which have different historical origins. The differences between community care services and medical services was identified by Ouseley J in R (T, D and B) v London Borough of Haringey [2005] EWHC 2235 (Admin) where he explained that:-

"61.. I accept, first, that there is a broad distinction to be drawn between health and social care provision which illustrates the true interpretation of these provisions. It does so even though there may be an overlap between the two in any given case".

100. So I conclude that the claimants are not in an analogous (or relatively similar) situation to persons to whom direct payments are provided by local authorities under community care legislation.

(vi) Where there others in analogous position and was a difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?

101. I have explained that there are circumstances in which those two questions can be dealt together and I agree with Mr Bowen that it is convenient to do so in this case. I bear in mind that it is the discriminatory effect of the measure which must be justified and not the measure itself (see Baroness Hale in AL (Serbia) (supra) at page 1448 [38]).
102. The case for the Secretary of State is that the claimants and those in receipt of social/community care are not in an analogous position as they are bound by distinct legislative and policy regimes. The regimes do not depend on the characteristic of the person receiving the service. Furthermore Miss Grey says that their needs are very different and furthermore healthcare is free at the point of issue whereas social service is means-tested so that personal contributions, subject to income are expected.
103. The first question to be considered is to ascertain how cogent the reasons of the Secretary of State have to be in order to justify the alleged discrimination. This is not one of the special cases where "very weighty reasons" are required to justify the differences in treatment .There is much authority that the need for "very weighty grounds" for justifying discrimination is limited to discrimination on grounds of sex, race, gender, legitimacy, religion, nationality and sexual orientation (per Lord Walker in Carson (supra) [58] with whom Lords Nicholls and Rodger of Earlsferry agreed). The alleged discrimination against the claimants does not fall into that category or into the category of "express or primary grounds" specified by Lord Neuberger in RJM (supra) [56] and with whom Lords Hope, Rodger, Walker and Mance agreed). The express grounds in article 14, which I set out in paragraph 70, do not include the discrimination which is relied on by the claimant but, as I will explain, even if "very weighty grounds" were required, they exist in this case. As Miss Grey says, it will fall into a separate category of different treatment "where the court should be very slow to substitute its view for that of the executive, especially as a discrimination is not on one of the express or primary grounds" RJM (supra) [56] per Lord Neuberger with whom the other members of the Appellate Committee agreed ). In the same case, Lord Mance explained that:-

" although the present discrimination against a category of disabled may on its face appear callous, it was not discrimination on one of the core-protected (or 'suspect') grounds…the court's scrutiny of the justification advanced will not have the same intensity as when a core ground of discrimination is in issue"([14]).

104. A similar view was expressed by Lord Hoffman where he said the type of justification of different treatments "merely requires some rational justification to it" and which are "very much a matter for the democratically elected branches of government" as being "merely a question of general social policy" (Carson (supra) [14] and [17]). This approach is clearly applicable to the present case with the consequence that the threshold of proving justification is therefore a low one for the Secretary of State.
105. I agree with Miss Grey that ample justification is provided by the different policy frameworks under which the different healthcare services are provided and the difference between the different legal regimes, which I have described in paragraphs 96 to 99 above. Support for this approach can be found in the reasoning of Lord Bingham of Cornhill in the case of M (supra) which concerned the statutory child support regime which drew a distinction based on sexual orientation when assessing the amount of child support payable by a non-resident parent. Having rejected the article 14 complaint essentially on the basis that it did not fall within the ambit of article 8, he explained that:-

"6 Even if the child support regime is, in the respect complained of, within the ambit of a convention right, [the claimant's] complaint of discrimination is in my view anachronistic. By that I mean that she is applying the standards of today to criticise a regime which when it was established represented the accepted values of our society which has now been brought to an end because it no longer does so but which could not, with the support of the public have been brought to an end very much earlier. Historically, both the law and public opinion withheld their sanction from a relationship between a man and a woman which was not sanctified by marriage or at least regularised by a civil ceremony, and homosexual relationships were criminalised or condemned. .. If such a regime [as the regime then in force] were to be established today, [the claimant] could with good reasons stigmatise the regime as unjustifiably discriminately. But it is unrealistic to stigmatise as unjustifiably discriminatory a regime which, given the size of the overall task and the need to recruit the support of the public could scarcely have been reformed sooner".

106. There is substantial resonance between on the one hand that approach and on the other hand the submission of Miss Grey which shows the justifiable reasons for the present regime under which cash payment cannot be made for health care. Those reasons are first that when the National Health Service was set up, it was the clear intention, which was universally accepted that all health treatment would be given directly to patients free at the point of delivery and not by means of cash payments. A second reason is to ensure that patients receive health care which is appropriate to their needs and of suitable quality. This is best achieved by the provision of healthcare directly to the patient rather giving cash payments which may not be used appropriately for those purposes. A third reason is that cash payments might well mean that patients might become subject to additional liability because of their inability to meet contractual obligations which have been undertaken in relation to their health care. A fourth factor is the need to ensure that the limited NHS resources are used in a way which best meets the needs of all patients.
107. Furthermore, the task of setting up a system of direct payments is very complex and was covered in the government's 2006 White paper "Our care, Our say". Although as I have explained there is a Bill presently before Parliament, it will not require cash payments to be made to the claimants but it will permit the carrying out of a pilot scheme. The existence of the Bill does not preclude the Secretary of State from justifying the present position of not making cash payments for health care.
108. There is no consensus which suggests that the existing system is wrongly discriminatory and so for the reasons explained by Lord Bingham even if, contrary to my conclusion there were analogous comparators, I consider that it could be well justified.
109. If, which is not the case, I had been in any doubt about whether the Secretary of State had discharged the onus of justifying the difference between the provision of cash under the community care legislation and the 2006 Act, I would have reached the same conclusion because this is what Lord Hoffmann described as "a social and political question within the competence of Parliament" (R (Hooper) v Work and Pensions Secretary [2005] 1 WLR 1681 [33]). That fortifies my conclusion. Indeed even if (contrary to my conclusions in paragraph 103 above) "very weighty reasons" are needed to justify the alleged discrimination, then the factors set out in this section constitute such reasons.
110. It is appropriate to deal with the basis of the claimants' case which is that the line drawn between health care on the one hand and community care on the other hand and that the demarcation is unfair and should all be dealt with in a similar way. I cannot accept this submission essentially for the reasons explained by Lord Bingham in R (Animal Defenders) v Culture Secretary [2008] 1 AC 1312, 1348 when he said that:-

"33... legislation cannot be framed so as to address particular cases.., it must lay down general rules…. A general rule means that a line must be drawn and it is for Parliament to decide where. The drawing of the line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial".

(vii) Other tests for deciding if the claimants' article 14 rights have been infringed

111. I have already explained that there are other tests for determining if the claimants' article 14 rights have been infringed. Each of these tests will result in a conclusion favourable to the Secretary of State because he can justify all differences in treatment for the reasons which I have set out and which are not in any way discriminatory in a way forbidden by article 14. In essence, adopting Lord Nicholls' approach in Carson (supra), the approach of the Secretary of State in making cash payments in community care case but for medical care "can withstand scrutiny" and it has "a legitimate aim and .. the means chosen to achieve this aim is appropriate and not disproportionate in its adverse effect". It must not be forgotten that even without cash payments, the claimants do receive medical services which satisfy this requirement of having a legitimate aim and not being disproportionate in its adverse effect.

(viii) The submissions of the EHRC

112. The EHRC has made written submissions in which it contends that the material relied on by the Secretary of State as justifying his position might justify a refusal to implement a duty to make direct payments but they cannot justify a refusal to implement a power or discretion to do so because if there was a power the Secretary of State could still set out a policy ensuring that direct payments are made in an orderly manner. I am unable to accept those submissions which are undermined by the justification for the present policy and which are set out above. In any event, the existence of discretion to make cash payments would be of little assistance to the claimants as they seek a duty to make such payments.

VI Issue 3 – Reading Down

113. This issue only has to be considered if I am wrong and if the relevant provisions of the 2006 Act are prima facie incompatible with the claimant's convention rights. In that event, the question becomes whether the 2006 Act can be construed pursuant to section 3 of the HRA so as to ensure compatibility. The claimant contends that they can be so read while the Secretary of State takes the opposite view.
114. I did not hear full argument on this and left this issue to be considered after I had resolved the other issues. In the light of my conclusions on those matters, this issue is now only of academic significance.

VII Conclusion

115. Anybody who has read of the health and disability problems with which the claimants are faced will have great sympathy and respect for them. I must however determine this case by applying legal principles which satisfy me that notwithstanding the able arguments of Mr Bowen, this claim must be dismissed.