“A system that ensures access for all in need – everybody needs access to immediately necessary treatment irrespective of their means or status. In particular, no person should be denied timely treatment necessary to prevent risks to their life or permanent health”
“2.2. NHS providers have a statutory obligation to make and recover charges from patients who are deemed chargeable under legislation. However, treatment which is considered by clinicians to be immediately necessary (including all maternity treatment) must never be withheld from chargeable patients, even if they have not paid in advance. 2.3. Treatment which is not deemed immediately necessary, but is nevertheless classed as urgent by clinicians, since it cannot wait until the overseas visitor can be reasonably expected to return home, should also be provided, even if payment or a deposit has not been secured. Nonetheless providers are strongly encouraged to obtain a deposit ahead of treatment deemed urgent if circumstances allow. However, if that proves unsuccessful, the treatment should not be delayed or withheld for the purposes of securing payment. 2.4. Treatment is not made free of charge by virtue of being provided on an immediately necessary or urgent basis. Charges cannot be waived and should be applied. Providers should take a pragmatic approach as to the most appropriate time to discuss financial arrangements with the patient. An invoice should always be raised. 2.5. Non-urgent or elective treatment should not be provided unless the estimated full charge is received in advance of treatment.”
“In addition to the proposals set out in our consultation we intend to place the following new statutory requirements on all providers of NHS-funded services: • to charge overseas visitors upfront and in full for any care not deemed by a clinician to be ‘immediately necessary’ or ‘urgent’ and/or cease providing such non-urgent care where payment is not received in advance of treatment beginning • require relevant NHS bodies to identify and flag an overseas visitor’s chargeable status, starting with NHS trusts ….”
“An NHS foundation trust or an NHS trust that, in meeting its obligations under regulation 3, determines that a person is an overseas visitor must, as soon as it is practicable to do so, record against the overseas visitor’s consistent identifier— (a) the fact that the person has been determined to be an overseas visitor; (b) the date on which that determination was made; and (c) whether Part 4 (overseas visitors exempt from charges) provides for no charge to be made.”
“Where the condition specified in paragraph (2) is met, before providing a relevant service in respect of an overseas visitor, a relevant body must secure payment for the estimated amount of charges to be made under paragraph (1) for that relevant service unless doing so would prevent or delay the provision of— (a) an immediately necessary service; or (b) an urgent service.”
“Non-urgent treatment – routine elective treatment which could in fact wait until the patient returned home. The patient’s chargeable status should be established as soon as possible after the first referral to the hospital. Where the patient is chargeable, the trust should not initiate treatment processes, e.g. by putting the patient on a waiting list, until a deposit equivalent to the estimated full cost of treatment has been obtained. Any surplus which is paid can be returned to the patient on completion of treatment. This is not refusing to provide treatment, it is requiring payment conditions to be met in accordance with the charging Regulations before treatment can commence.”
“Non-urgent treatment should not be provided unless the estimated full charge is received in advance of treatment …. These questions need to be asked every time a patient begins a new course of treatment at the hospital and is entered onto the relevant NHS body’s records for in-patient or out-patient care, either on paper or computer and either by administration or ward staff, in order to comply with the Charging Regulations. The system should allow the questioner to record either that the patient has lived in the UK lawfully for 12 months or that there is some doubt …. For some cases relating to undocumented migrants, it will be particularly difficult to estimate the return date. Relevant NHS bodies may wish to estimate that such patients will remain in the UK initially for six months, and the clinician can then consider if treatment can or cannot wait for six months, bearing in mind the definitions of urgent and non-urgent treatment given above. However, there may be circumstances when the patient is likely to remain in the UK even longer than six months, in which case a longer estimate of return can be used.”
“did the defendant act unlawfully by failing to carry out the consultation exercise properly by not including within the consultation two proposals, namely the requirement of advance payment and recording of information, as part of the consultation process it undertook in 2015; and/or did the claimant have a legitimate expectation, arising out of a past practice of public consultation, that there was would be a public consultation on any significant amendments imposing charges including these two proposals?”
“64. In my judgment, the defendant is correct on this issue. If a public body chooses to consult upon a particular proposal, then it must do [so] fairly and in accordance with wellestablished principles. If a public body chooses to consult on one set of proposals, but not to consult on another, different set of proposals, then, unless it can be shown that there is a legal obligation to consult upon the second set of proposals, it is not obliged to do so because it is consulting on the first set of proposals. Indeed, the claimant recognises that in paragraph 56 of his skeleton argument where he accepts that the fact that a public authority consults on one issue does not of itself mean that it is unfair not to consult upon a completely separate issue which it later decides upon. 65. The fact that the defendant chose to consult upon a very large number of proposals relating to the charging regulations does not alter the position. The two issues upon which he chose not to consult (advance payment and record keeping requirements) were discrete, self-contained issues. The fact that notice of the decision to make those two changes was contained in the document setting out the response to the consultation exercise does not mean that the proposals were part of, or were linked in some way to the proposals that were consulted upon. The defendant did not fail to carry out the consultation exercise properly. The key question, therefore, is whether there was an obligation to consult upon these two changes.”
“Analysing the evidence in the present case, there is not a settled and uniform practice of public consultation before exercising the power to make regulations relating to the making and recovery of charges for services provided to persons not ordinarily resident in the United Kingdom. There was certainly no unequivocal practice of public consultation.”
“In substance, the claimant has analysed the material from the perspective of seeking to construct from the public consultation exercises that have taken place a practice. He does so by redefining occasions when public consultation did not take place as ones involving ‘technical matters’ or as involving changes which are to be regarded as beneficial to individuals. A more accurate analysis, in my judgment, would focus on the nature of the power being exercised, that is the power to make regulations relating to charging non-residents for NHS services. That analysis would take account of the fact that there have been occasions when that power has been exercised without consultation. In all the circumstances, therefore, there has not been a settled and uniform practice of public consultation on changes to the charging regime since 1989, 1995 or later.”
“85. Furthermore, and additionally, it would be difficult to regard any previous practice as giving rise to an unequivocal assurance that the two particular changes in issue in this case would be subject to public consultation. The requirement to record the fact that a person is a non-resident liable to charging, for example, does not of itself involve making any changes to the liability to pay charges (which is set out in the 2015 Regulations). It simply means that a person who is liable to pay charges is readily identifiable. It is difficult to see how the consultation exercises that were carried out in 2003, 2004, 2010 and 2013 gave rise to an unequivocal assurance that changes governing the recording of information would be the subject of consultation. The legitimate expectation that the claimant asserts in his claim form is an expectation, based on past practice, of consultation ‘on any significant amendments made imposing charges under the section 175 power’. The recording of the fact that a person is liable to charges is not concerned with imposing charges. In his written submissions dated14 September 2018 , the claimant in effect reformulates the practice and expectation and describes it as ‘an established prior practice of consulting on significant changes to the charging scheme which operate to the disadvantage of affected patients’. He then seeks to treat a requirement that liability to charging be recorded as such a change. It would be difficult, in my judgment, to treat the previous consultations as giving rise to an unequivocal assurance that changes relating to the recording of liability to pay charges is something that the defendant would consult upon. That indicates, more generally, that no unequivocal assurance arises out of any previous instances of consultation as to what might be the subject of any future consultation. 86. Similarly, it is it is difficult to see that that changes to the timing of payment for treatment is an amendment imposing charges, the expectation alleged in the claim form. It is only by recasting the practice as a practice of consulting on disadvantageous changes, and then classifying the imposition of a legal requirement to make advance payment as a disadvantageous change, that the second change is brought within the alleged past practice giving rise to a legitimate expectation. That, again, indicates the earlier instances of consultation did not give rise to a clear, unequivocal assurance that certain types of changes to the regulations would be the subject of consultation. In truth, the claimant can only seek to rely upon an alleged past practice both by ignoring instances where the exercise of the power to make regulations were not preceded by public consultation and by defining the consultations that did take place as instances where there was consultation on changes disadvantageous to the individual, and then classifying changes to record-keeping and the timing of payment as similarly disadvantageous. That is not, however, the type of situation which the courts have recognised as of a settled and uniform practice, giving rise to an unequivocal assurance, which results in the imposition of an obligation to consult before exercising a statutory power to make regulations. In the circumstances, therefore, the first ground of challenge, fails.”
“Thus, if in the course of decision-making a decision-maker becomes aware of a new factor, as in Interbrew SA v Competition Commission[2001] EWHC Admin 367 , or some internal material of potential significance to the decision to be made, as in R. v Secretary of State for Health, Ex p. United States Tobacco International Inc [1992] Q.B., 353, CA, at 370– 371 (per Taylor L.J.) and 376 (per Morland J.), fairness may demand that the party or parties concerned should be given an opportunity to deal with it.”
“So I approach the issue of whether there should have been reconsultation by the defendants in this case, on the proposals now under challenge on the basis that the defendants had a strong obligation to consult with all parts of the local community. The concept of fairness should determine whether there is a need to re-consult if the decision−maker wishes to accept a fresh proposal but the courts should not be too liberal in the use of its power of judicial review to compel further consultation on any change. In determining whether there should be further re-consultation, a proper balance has to be struck between the strong obligation to consult on the part of the health authority and the need for decisions to be taken that affect the running of the Health Service. This means that there should only be re-consultation if there is a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt.”
“First, where there is a statutory duty to consult. Second, where there has been a promise to consult. Third, where there has been an established practice of consultation. Fourth, where, in exceptional cases, a failure to consult would lead to conspicuous unfairness. Absent these factors, there will be no obligation.”
“In the present case the evidence shows that, ever since GCHQ began in 1947, prior consultation has been the invariable rule when conditions of service were to be significantly altered. Accordingly in my opinion if there had been no question of national security involved, the appellants would have had a legitimate expectation that the minister would consult them before issuing the instruction of22 December 1983 .”
“29. There is a paradigm case of procedural legitimate expectation, and this at least is in my opinion clear enough, whatever the problems lurking not far away. The paradigm case arises where a public authority has provided an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation before it changes an existing substantive policy …. 30. In the paradigm case the court will not allow the decision-maker to effect the proposed change without notice or consultation, unless the want of notice or consultation is justified by the force of an overriding legal duty owed by the decision-maker, or other countervailing public interest such as the imperative of national security (as in CCSU). There may be questions such as whether the claimant for relief must himself have known of the promise or practice, or relied on it. It is unnecessary for the purpose of these appeals to travel into those issues; I venture only to say that there are in my view significant difficulties in the way of imposing such qualifications. My reason is that in such a procedural case the unfairness or abuse of power which the court will check is not merely to do with how harshly the decision bears upon any individual. It arises because good administration (‘by which public bodies ought to deal straightforwardly and consistently with the public’: paragraph 68 of my judgment in Ex p Nadarajah[2005] EWCA Civ 1363 ) generally requires that where a public authority has given a plain assurance, it should be held to it. This is an objective standard of public decisionmaking on which the courts insist ….”
“Authority shows that where a substantive expectation is to run the promise or practice which is its genesis is not merely a reflection of the ordinary fact (as I have put it) that a policy with no terminal date or terminating event will continue in effect until rational grounds for its cessation arise. Rather it must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy’s continuance is assured. Lord Templeman in Preston referred (866 - 867) to ‘conduct [in that case, of the Commissioners of Inland Revenue] equivalent to a breach of contract or breach of representations’.”
“it is more difficult for the appellants to elevate a practice into an assurance to taxpayers from which it would be abusive for the revenue to resile and to which under the doctrine it should therefore be held. ‘The promise or practice … must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy's continuance is assured’: R (Bhatt Murphy) v Independent Assessor[2008] EWCA Civ 755 , para 43, per Laws LJ. The result is that the appellants need evidence that the practice was so unambiguous, so widespread, so well-established and so well-recognised as to carry within it a commitment to a group of taxpayers including themselves of treatment in accordance with it.”
“While a practice does not have to be unbroken, it has to be sufficiently consistent to be regarded as more than an occasional voluntary act. Like the judge, I do not think that the Home Office’s past conduct fitted this description; but even if I did, I would not think it right to upset his judgment on what is an evaluative question of fact.”
“53. … This aspect of the case was not pursued orally by Mr Drabble QC which is scarcely surprising since the evidence does not support the alleged established practice. The alleged practice must be clear, unequivocal and unconditional: see per Laws LJ in Bhatt Murphy at [29]; per Mostyn J in R (on the application of L) v Warwickshire County Council[2015] EWHC 203 (Admin) ] at [17]. The practice must be sufficiently settled and uniform to give rise to an expectation that the claimant would be consulted: see per Stanley Burnton J in R on the application of BAPIO Action Ltd v Secretary of State for the Home Department[2007] EWHC 199 (Admin) at [53]. It is also clear from [17] of L and from [28] of Bhatt Murphy that there must be unfairness amounting to an abuse of power for the public authority not to be held to the practice. 54. The evidence shows that there are occasions when the Government has consulted over changes to the RHI scheme and occasions when it has not …. 55. It follows that there is no settled or uniform practice, let alone one that is unequivocal, such as to give rise to an expectation of consultation and no sense in which it could be said to be unfair for the Department not to have followed any such practice ….”
“The promise relied upon must be clear, unambiguous and devoid of any relevant qualification, but it is well-established that it need not be express. It can be derived from the circumstances of a particular matter.”
“Even in 2013, however, all that could be said was that on four occasions (2003, 2004, 2010 and 2013) there had been public consultations on some proposed changes to the regulations. On other occasions, there had not been public consultation. Even when there was consultation in 2003 and 2010, not all the changes made were ones that were consulted upon.”
“It is not feasible to consider the 2015 consultation exercise itself as evidence of a practice of public consultation for two reasons. First, the question is whether there was a past practice of consultation established by December 2015 such that there was on obligation on the defendant to conduct a public consultation in 2015 on the advance repayment and record keeping requirements. Secondly, the 2015 consultation does not, on analysis, evidence a practice of consulting on any change to the regulations, or even any change such as the advance payment requirement which might be seen as disadvantageous to individuals. It does the opposite as the defendant did not consult upon those changes.”