Social Welfare Update: Advance payments for NHS Treatment and Foreign Nationals – guidance changes

The facts

The appellant, an overseas visitor, appealed the dismissal of his claim for judicial review of provisions relating to advance payment and the recording of information in the NHS (Charges to Overseas Visitors) (Amendment) Regulations 2017.

The NHS (Charges to Overseas Visitors) (Amendment) Regulations 2015 permitted the NHS to make and recover charges for services provided to overseas visitors. 

In December 2015, the government launched a consultation on a proposed extension to the 2015 Regulations in respect of charging of overseas visitors. The 2017 Regulations were enacted with amendments requiring overseas visitors to make advance payment for treatment and for the keeping of records of chargeable persons. The appellant sought judicial review of the 2017 Regulations, claiming that the new requirements were intrinsically linked to the subject of the 2015 consultation and significantly affected the impact of its proposals. The High Court concluded that the Defendant had not acted unlawfully in carrying out the consultation exercise in 2015 without including the new proposals, and that the appellant did not have a legitimate expectation, arising out of a past practice of public consultation, that there would be a consultation on the amendments.

The judgment

On dismissing this appeal, the Court of Appeal held that when a public body embarked on a consultation it had to be carried out properly. However, that duty was confined to the proposals included in that consultation and did not necessarily extend to disclosure or other proposals it might have in the same field. The court held that the concept of fairness was not in itself enough to found a duty to consult and was not a touchstone for when consultation on a proposal was necessary, see R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (QB). The proposals in issue in this appeal had not been under consideration in 2015, so there was no question of criticising the Defendant for failing to refer to them then. Furthermore, the advance payment requirement did not extend the circumstances in which an overseas visitor was liable to pay for services, but dealt only with when payment was to be made. Moreover, the recording of information requirement did not impose any new financial burden. The court concluded that such requirements did not represent variants or developments of proposals which were not present in the 2015 consultation, as they were not tied to or derived from the 2015 proposals, but were discrete and self-contained. Thus there was no basis for impugning them.

 The appellant argued that there was a distinction between procedural and substantive legitimate expectation, with the former being established by showing a "sufficiently settled and uniform practice" per R (on the application of Brooke Energy Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2018] EWHC 2012 (Admin). The appellant argued the judge erred by approaching this on the basis that such a practice had to be "unequivocal" and by ignoring the qualifier "sufficiently". The court held cases concerned with substantive legitimate expectation were relevant when considering procedural legitimate expectation such that as in R. (on the application of Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213, the "fundamental ingredients" of procedural and substantive legitimate expectation were said to be the same. The court determined that correct position was that: (a) an express promise, representation or assurance had to be "clear, unambiguous and devoid of relevant qualification" to give rise to any legitimate expectation, whether substantive or procedural, and (b) a practice had to be tantamount to such a promise if it was to found any legitimate expectation. The promise did not have to be entirely unbroken, but must be consistent as to imply clearly, unambiguously and without relevant qualification that it would be followed in future. The Court of Appeal held that the judge had not erred in referring either to "settled and uniform practice", without the qualifier, or to "unequivocal practice". Further, nor was there any basis on which to interfere with the judge's evaluation, as he had considered in detail the extent to which the Defendant had consulted on regulations relating to the charging of overseas visitors.
 

Comment

This case is useful in looking at the requirements of a consultation whether required or embarked on, the ambit in which the duty to consult arises, and when a legitimate expectation may arise.