QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
(on the application of STEVEN HARRISON)
|- and -
|THE SECRETARY OF STATE FOR HEALTH
WAKEFIELD DISTRICT PRIMARY CARE TRUST(1)
WAKEFIELD METROPOLITAN DISTRICT COUNCIL (2)
(on the application of VALERIE GARNHAM)
|- and -
|THE SECRETARY OF STATE FOR HEALTH (1)
ISLINGTON PRIMARY CARE TRUST (2)
ISLINGTON LONDON BOROUGH COUNCIL
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Official Shorthand Writers to the Court)
Eleanor Grey and Emma Dixon (instructed by Treasury Solicitor) for the Defendant in both claims
The interested parties were neither present nor represented at the hearing
Written submissions were made by David Wolfe on behalf of the Equality and Human Rights Commission
Hearing dates: 12 and 13 February 2009
Written submissions served until 20 February 2009
Crown Copyright ©
MR JUSTICE SILBER:
(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 ).
II The Claimants
(i) Mr Steven Harrison
(ii) Mrs Valerie Garnham
(iii) Conclusions on the advantages to the claimants of receiving direct payments for health care
"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.
"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".
"(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."
"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.
"(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."
"(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."
"(1) …may arrange with any person or body to provide, or assist in providing, any service under this Act".
IV The Construction Issue
(i) The Claimants' Case
"... 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".
"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".
(i) The Secretary of State's case
(ii) Discussion – Can cash payments to patients be "services" which can be provided by the Secretary of State?
"[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".
"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)
".. 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 ).
"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  AC 591 at 637).
"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."
"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)
(iv) Discussion – Does the duty of the Secretary of State to "secure the provision" mean that cash payments can be made?
"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)
(v) Does the Secretary of State have incidental powers to make cash payments?
"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".
(vi) Conclusion on the Construction Issue
V The ECHR Issue
"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".
(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?
"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  1 AC 173, 194 ).
"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."
"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  1 AC 719 at page 760  per Lord Hope of Craighead ).
"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".
"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)".
"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".
"a testament to the excellent care provided by the carers, but also as a result of Valerie's expert management of her care".
"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."
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.
(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 ?
(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?
(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?
"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".
(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?
" 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"().
"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".
"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
(viii) The submissions of the EHRC
VI Issue 3 – Reading Down