The claimant, who suffered from the hepatitis B virus, alleged that he had contracted the virus when he was given blood transfusions in an NHS hospital in 1989 which resulted in serious health problems and dependence on benefits. He applied in August 2020 for permission to bring a claim for judicial review of the decision to exclude hepatitis B sufferers from an ex gratia scheme, the England Infected Blood Support Scheme, set up by the Secretary of State. The scheme was established in 2017 to provide ex gratia support to those who had contracted hepatitis C virus and human immunodeficiency virus (HIV) in general from unscreened blood and blood products provided by the NHS. The decision the claimant relied on was contained in an e-mail on behalf of the Department of Health and Social Care dated 12 May 2020 explaining the scheme, which did not include those with hepatitis B. That was because blood and blood products supplied by the NHS had been screened for hepatitis B from 1972 which led in the 1980s to a significantly lower risk of contamination with hepatitis B than with hepatitis C, which was not screened until 1991 or with HIV, which was not screened until 1985. The scheme did not apply to those who contracted hepatitis C or HIV after screening began. It was the claimant’s case was that it was arguable that the exclusion of hepatitis B sufferers was contrary to article 14 read with article 8 and article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms. The claimant contended that he was in a relevantly similar position to HIV and hepatitis C sufferers covered by the scheme, that he had been treated less favourably than those with HIV and hepatitis C because he had not received money and support under the scheme which impacted his family life and property rights, and that the Department could not justify the difference in treatment between them. The Department denied discrimination. Permission to apply for judicial review was refused but the claimant was granted permission to appeal.
On the claimant’s appeal—
Held, appeal dismissed, permission to apply for judicial review refused. The central question was whether it was arguable that the exclusion of hepatitis B sufferers from the England Infected Blood Support Scheme was discriminatory and unreasonable. The claimant was not similarly situated to those who were in the scheme, but was properly to be compared with someone who had been infected with HIV or hepatitis C after blood screening for those infections was introduced, to whom the scheme did not apply. The question of relevant similarity was intimately entangled with the question of whether the Secretary of State could show an objective justification for the alleged discrimination. It was not arguable that the claimant was in a relevantly similar position, because the true comparison was either (a) with hepatitis C sufferers who contracted their condition from unscreened blood or blood products, or (b) with HIV sufferers who would be very unlikely to be able to claim if they received treated blood or blood products. On the intensity of review for justification, there was a sliding scale. For an ex gratia scheme based on ministerial judgments of social and economic policy in the field of welfare benefits a low intensity of review was appropriate. The Secretary of State was to be given a wide margin of appreciation in creating an ex gratia scheme of that kind. The reason for the difference in treatment was not the disability of those concerned but the fact that the infections followed treatment with screened blood in the claimant’s case and generally with unscreened blood in the case of those covered by the scheme. The claimant had no statutory entitlement or even legitimate expectation to benefit under the scheme. It was not arguable that the Secretary of State was unable to justify that different treatment and accordingly discrimination contrary to article 14 of the Convention was not arguable (paras 5, 23–24, 37, 41–42, 45, 54, 55).
Per curiam. There are no continuing activities of the state beyond the initial acts of not including hepatitis B sufferers in the ex gratia scheme. Since the claimant has known, at least since 2017, that he has a need similar to hepatitis C or HIV sufferers covered by the scheme, he is out of time to bring this claim. It is not appropriate to extend time in the light of the court’s judgment as to the merits, but if there had been merit in the claim the court would have extended time for it to be brought (para 50–51, 54, 55).
Christian J Howells (instructed by Watkins and Gunn, Cardiff) for the claimant.
Benjamin Tankel (instructed by Treasury Solicitor) for the Secretary of State.