CN, R. (On the Application Of) v The Secretary of State for Health and Social Care [2022] EWCA Civ 86 (04 February 2022)

CN, R. (On the Application Of) v The Secretary of State for Health and Social Care [2022] EWCA Civ 86 (04 February 2022)

The exclusion of HBV sufferers from the EIBSS is not arguably discriminatory under Article 14 ECHR because CN is not in a relevantly similar position to HIV and HCV sufferers covered by the scheme, given the introduction of HBV screening in 1972. Even if there were different treatment, the Secretary of State has objective justification for the scheme's boundaries, and a wide margin of discretion applies. The claim is also out of time, as the exclusion was a one-off act when the scheme was introduced, not a continuing act.

Citation
[2022] EWCA Civ 86
Parties
Appellant/claimant: CN; Respondent/defendant: The Secretary of State for Health and Social Care; Interested Party: The NHS Business Authority
Jurisdiction
England and Wales
Judgment Date
04 February 2022
Procedural Posture
Judicial Review Appeal / Appeal Against Refusal of Permission to Apply for Judicial Review
Outcome
Appeal dismissed
Legal Topics
Discrimination Under Article 14 ECHR, Right to Respect for Private and Family Life (article 8 Echr), Protection of Property (a1 P1 Echr), Equality Act 2010, Judicial Review Time Limits, Ex Gratia Government Schemes
Public Law Human Rights Law Administrative Law Discrimination Under Article 14 ECHR Right to Respect for Private and Family Life (article 8 Echr) Protection of Property (a1 P1 Echr) Equality Act 2010 Judicial Review Time Limits +1 more

Case Brief

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Parties

CN

Appellant/claimant

The Secretary of State for Health and Social Care

Respondent/defendant

The NHS Business Authority

Interested Party

Procedural Posture

Judicial Review Appeal / Appeal Against Refusal of Permission to Apply for Judicial Review

Legal Issues

  1. 1 Whether exclusion of HBV sufferers from the England Infected Blood Support Scheme (EIBSS) is discriminatory under Article 14 ECHR when read with Article 8 and A1P1
  2. 2 Whether the Secretary of State can objectively justify the different treatment of HBV sufferers compared to HIV and HCV sufferers
  3. 3 Whether the claim was out of time and if time should be extended

Ratio Decidendi

The exclusion of HBV sufferers from the EIBSS is not arguably discriminatory under Article 14 ECHR because CN is not in a relevantly similar position to HIV and HCV sufferers covered by the scheme, given the introduction of HBV screening in 1972. Even if there were different treatment, the Secretary of State has objective justification for the scheme's boundaries, and a wide margin of discretion applies. The claim is also out of time, as the exclusion was a one-off act when the scheme was introduced, not a continuing act.

Court Disposition

Appeal dismissed

Orders

  • Permission to apply for judicial review refused
  • No extension of time granted for bringing the claim