Cushnie, R (on the Application of) v Secretary of State for Health [2014] EWHC 3626 (Admin)

Date

5 November 2014

Link to judgment

http://www.bailii.org/ew/cases/EWHC/Admin/2014/3626.html

Discrimination ground

Disability

Summary of case

In this case the High Court considers a challenge to legislation dealing with the provision of free NHS health care to former asylum claimants when they are disabled and require help with personal care.

The current rules are set out in the National Health Service (Charges to Overseas Visitors) Regulations 2011. These provide that former asylum seekers accommodated by the Home Office should have free access to health care but that those who are disabled, and as a result are looked after by their local authority, should not.

Outcome

The court held that while this did not amount to unlawful discrimination, in framing the regulations the Secretary of State had acted unlawfully by failing to have regard to their differential impact on disabled persons. Singh J commented that:

…equality impacts were carried out, they addressed other protected characteristics in terms, such as race and religion. This was perhaps understandable in a context which concerned foreign nationals. However, the equality impacts simply did not address the protected characteristic of disability.

The Secretary of State confirmed that the regulations would be reviewed.