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Yesterday, Mrs Justice Whipple refused permission on a widely publicised claim brought by Maternity Action against the Secretary of State for Health and Social Care, challenging the NHS charging provisions for particular cohorts of individuals. The NHS Act 2006 provides that the Secretary of State may charge those not ordinarily resident in the UK for services provided by the NHS. The charging scheme, contained in the NHS (Charges to Overseas Visitors) Regulations 2015, broadly provides that those not ordinarily resident in the UK are chargeable, other than where there is a particular exemption. Maternity Action challenged the lack of exemption for (i) migrant pregnant women, (ii) migrant families in receipt of support from a local authority pursuant to section 17 of the Children Act 1989, and (iii) victims of gender-based violence. It was argued that the lack of exemption for these cohorts constituted discrimination contrary to the ECHR and the Equality Act 2010 and was irrational. There was also a public sector equality duty claim. The Court rejected these arguments. Whilst Whipple J expressed sympathy for those in the relevant cohorts, she found that there was no arguable discrimination. She expressed the view that these matters, regarding the allocation of resources, where within a state’s margin of discretion. In addition, Whipple J found the claim was out of time. The points could have been raised either in 2015 when the Regulations came into force, or in 2017 when there was a review of the regulations. The fact the Claimant had been collecting evidence was not a sufficient reason to extend time. A claim brought by an individual on similar grounds was heard with the Maternity Action claim, and was also refused permission. For media coverage of the claim, see reports in the Guardian and Independent. David Blundell QC, Julia Smyth and Leon Glenister represented the Secretary of State defending the claim, instructed by the Government Legal Department.
