In a judgment handed down on 4 February 2022, the Court of Appeal dismissed an appeal for permission to apply for judicial review concerning the lawfulness of the England Infected Blood Support Scheme (EIBSS) (the “Scheme”). The Court of Appeal concluded that the Scheme’s exclusion of those infected with hepatitis B was not discriminatory. In any event, the Secretary of State’s justification for who was to be compensated under the ex gratia Scheme was to be given a wide margin of appreciation by the courts.
The Appellant, CN, suffers from hepatitis B virus (“HBV”) which he alleges he contracted when given blood transfusions on or after 14 April 1989. Consequently, CN has suffered from serious health problems, and was forced to abandon his business to receive medical treatment; he has been reliant on state benefits for the last 13 years. CN is a core participant in the ongoing infected blood inquiry, which was established to examine the circumstances in which NHS patients in the UK were given infected blood and blood products.
In 1995, CN issued a civil claim against the NHS and the National Blood Authority (now the NHS Blood and Transplant Service). Despite obtaining expert evidence to the effect that his infection was obtained from infected blood, he had to discontinue his claim when legal aid was withdrawn.
Infected blood and the England Infected Blood Support Scheme (EIBSS)
The Scheme was set up on 1 November 2017, to provide ex gratia support to people historically infected with hepatitis C virus (“HCV”) and/or human immunodeficiency virus (“HIV”). Specifically, the 2017 Directions set out the EIBSS’s purpose as:
‘a scheme to make payments and provide support in respect of individuals infected with HIV or Hepatitis C (or both) from blood or blood products used by the NHS and to provide support to family members of such individuals’.
The Scheme addresses the ongoing social issues concerning those infected and affected by HIV and HCV from unscreened products. The Scheme recognises a moral imperative to compensate those infected with HCV and HIV in circumstances where attempts to allege negligence against the NHS would run into significant difficulties of fault-based liability and evidential issues surrounding the state of scientific knowledge at the time. It also helps families and partners after the death of someone infected, who would otherwise be unable to make a civil claim.
Those infected with HBV do not fall within the remit of the Scheme. In basic terms, this is because the NHS screened blood and blood products for HBV from the mid 1970s, so the number of patients infected with HBV were low after screening. Within the Scheme, the cut-off date for HCV claims is September 1991, when screening was introduced. For HIV there is no cut-off, but the eligibility criteria make clear that after October 1985, when the NHS screened for HIV, it was very unlikely that HIV would be transmitted through infected blood.
Therefore, CN could not access compensation for his HBV infection through the Scheme and cannot pursue a further claim in negligence against the NHS. It is against this backdrop that CN sought to challenge his exclusion from the Scheme by way of judicial review.
CN’s challenge to the decision confirming that those infected with HBV fell outside the scope of the Scheme was threefold:
- The Scheme was discriminatory, contrary to article 14 EHCR (freedom from discrimination) combined with article 8 ECHR (respect for private and family life) and article 1 protocol 1 ECHR (“A1P1”) (right to property).
- The Scheme amounted to disability discrimination contrary to s.15 of the Equality Act 2010.
- The Scheme was unreasonable.
Spencer J refused CN permission to apply for judicial review on the papers. Permission was then further refused at an oral hearing by Stacey J. CN was then granted permission to appeal Stacey J’s decision to the Court of Appeal by Holroyde LJ.
Is the Scheme discriminatory and if so, can it be objectively justified?
The central question in the appeal was whether it was arguable that the exclusion of those infected with HBV from the Scheme was discriminatory contrary to article 14.
Article 14 is not a free-standing right to non-discriminatory treatment; one must be able to show discrimination that interferes with other convention rights. For the sake of the decision, the Court of Appeal was willing to assume that CN had an arguable case that the alleged discriminatory conduct, namely the eligibility criteria of the Scheme, was within the ambit of article 8 and A1P1. The Court of Appeal also accepted that CN arguably had an ‘other status’ for the purposes of article 14.
The Court of Appeal considered two main questions on the discrimination point:
- Was it arguable that CN was in a relatively similar position to HIV and HCV sufferers?
- In any event, could the Secretary of State justify differential treatment?
CN contended that the reason he was treated differently was simply because he was infected with HBV rather than with HIV and/or HCV, and that there is no material difference between them for the purposes of the Scheme. The issue of screening, CN argued, was not relevant since the 2017 Directions make no reference to unscreened blood or blood products, and because the distinction between screened and unscreened blood products was historically not so clear, as effectiveness was not guaranteed and not all blood and blood products were screened.
The Court of Appeal concluded that while it was true that the stated purpose of the Scheme contained in the 2017 Directions does not draw a distinction between screened and unscreened products, the question of relevant similarity could not be understood without examining the objective justification for the scheme.
Turning to the question of the justification of the eligibility criteria of the Scheme, the Court of Appeal adopted the approach of Lord Reed in R (SC) v Secretary of State for Work and Pensions  UKSC 26 at :
‘… a low intensity of review is generally appropriate, other things being equal, in cases concerned with judgments of social and economic policy in the field of welfare benefits and pensions, so that the judgment of the executive or legislature will generally be respected unless it is manifestly without reasonable foundation.’
In this instance, the Court of Appeal adopted a ‘sliding scale’ of intensity of review: the Scheme is concerned with ministerial judgments of social and economic policy (requiring a less intense review), but also involved provision for disabled sufferers (requiring a more intense review). The fact that the EIBSS was an ex gratia scheme, such that CN had no statutory entitlement to, or legitimate expectation of, compensation was also relevant. Other schemes like the Criminal Injuries Compensation Scheme were therefore distinguished. Accordingly, the Court of Appeal afforded the Secretary of State’s judgement of who to include in the EIBSS a wide margin of discretion.
Having adopted a sliding scale of intensity of review, the Court of Appeal concluded that the operation of the EIBSS, such that it excluded CN, could be justified for the following reasons:
- It existed to overcome the moral dilemma posed by the regime of fault-based liability which shut off access to compensation to those infected by HCV and HIV.
- The nature of such a scheme, in contrast with the approach in negligence claims, is that there is no mechanism by which the court can judge who is more or less deserving of compensation.
- Despite the historical issues with screening, the distinction between screened and unscreened blood and blood products is intelligible and comprehensible.
On this understanding of the rationale for the Scheme, the Court of Appeal concluded that the true comparison with CN was either HCV sufferers who contracted their infection from unscreened blood or blood products, and/or HIV sufferers who would be very unlikely to be able to claim if they received treated blood or blood products.
On this basis, both the article 14 claim, along with the question of unreasonableness and irrationality, were not arguable.
Was the claim out of time?
Having refused permission on the substance of CN’s claim, the Court of Appeal turned to consider whether CN’s application was out of time.
CN sought permission to judicially review a decision made on behalf of the Department of Health and Social Care dated 12 May 2020 which explained why there was no plan to expand the eligibility criteria for the Scheme. However, the Scheme was established in 2017, from which point CN has been excluded from seeking compensation for his infection with HBV. The question for the court was whether time ran from 2017, or from the 2020 decision.
CN argued that the operation of the Scheme was a ‘continuing act’, relying on the decision in R (Johnson) v Secretary of State for the Home Department  UKSC 56 where the Supreme Court held that the scheme in question ‘had a current and direct effect upon the claimant who is currently liable to action by the state’ .
However, in line with R (Delve) v Secretary of State for Work and Pensions  EWCA Civ 1199, the Court of Appeal maintained that the effects of the EIBSS were unchanged since 2017. There were no continuing activities of the state beyond CN’s initial exclusion which aligned CN’s challenge with that in Johnson. Therefore, time started running from 2017 and CN was out of time.
This article originally appeared on the UK Human Rights Blog here.