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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> A, R (on the application of) v West Middlesex University Hospital NHS Trust [2008] EWHC 855 (Admin) (11 April 2008) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2008/855.html Cite as: (2008) 11 CCL Rep 358, [2008] ACD 50, [2008] HRLR 29, [2008] EWHC 855 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF A | (Appellant) | |
-v- | ||
WEST MIDDLESEX UNIVERSITY HOSPITAL NHS TRUST | (Respondent) |
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(Official Shorthand Writers to the Court)
Ms Elizabeth Laing (instructed by the Treasury Solicitor, London) appeared on behalf of the Respondent
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Crown Copyright ©
"Ordinarily resident
5 .4. An overseas visitor is defined in the Regulations as a person not ordinarily resident in the UK. 'Ordinarily resident' is not defined in the NHS Act 1977. The concept was considered by the House of Lords and although the case being considered was concerned with the meaning of ordinary residents in the context of the Education Acts the decision is generally recognised as having a wider application. The House of Lords interpretation should, therefore, be used to help decide if a person can be considered ordinarily resident for the purposes of the NHS Act 1977 and the overseas visitors charging Regulations.
5.5. In order to take the House of Lords judgment into account, when assessing the residence status of a person seeking free NHS services, trusts will need to consider whether they are:
living lawfully in the United Kingdom voluntarily and for settled purposes as part of the regular order of their life for the time being, whether they have an identifiable purpose for their residence here and whether that purpose has a sufficient degree of continuity to be properly described as 'settled'.
5.6 Trusts need to make a judgment as to whether a patient is ordinarily resident in the light of the circumstances of that individual patient. But there are several elements which all need to be satisfied. For example, a person who has the right of abode or who has been given leave to remain and has an identifiable purpose for their visit may not meet the 'settled' criterion if they are only here for a few weeks. Alternatively, someone may be here legally, for several months, but with no identifiable purpose. But it is for the trust to decide whether the criteria are met. There is no minimum period of residence that confers ordinarily resident status. In the past the Department of Health has suggested that someone who has been here for less than 6 months is less likely to meet the 'settled' criterion but it is important to realise that this is only a guidance, not a deadline.
5 .7 The question of ordinarily resident status is the first and most fundamental issue to resolve, because if a patient is classed as ordinarily resident then the charging Regulations do not come into play, even if the patient has only been in the UK for a few days or weeks. The Secretary of State has no powers to charge for NHS treatment someone who is ordinarily resident in the UK.
6.23 Refugees and asylum seekers who have made a formal application with the Home Office which has not yet been determined. The refugee is someone who has been granted asylum in this country.
6.24 the fact that the exemption for asylum seekers only lasts until their claim is determined means that trusts should be prepared to check that the application still on-going at intervals if treatment is being provided over a long period. If the claim is finally rejected (including appeals) before the patient has been in the United Kingdom for 12 months, they cannot be charged for a course of treatment they were receiving at the time their status was determined. That remains free of charge until completed. They must, however, be charged for any new course of treatment. If that is routine elective treatment, then payment should be handled in the same way as for anyone else seeking non-urgent treatment, ie payment should be obtained before treatment begins (see para 3.1). Once they have completed 12 months residence they do not become exempt from charges."
"(1) It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement -
(a) in the physical and mental health of the people of those countries, and
(b) in the prevention, diagnosis and treatment of illness,
and for that purpose to provide or secure the effective provision of services in accordance with this Act.
(2) The services so provided shall be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed."
"1. It is the Secretary of State's duty to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements ...
(c) medical ... services."
This is a general duty giving a wide discretion to the Secretary of State (see ex parte Coughlan) [2001] QB 213, paragraphs 22 to 26.
"Regulations may provide for the making and recovery, in such manner as may be prescribed, of such charges [as the Secretary of State may determine] -
(a) in respect of such services provided under this Act as may be prescribed, being.
(b) services provided in respect of such persons not ordinarily resident in Great Britain as may be prescribed."
The origin of Section 121 is Section 17 of the National Health Service Amendment Act 1949. It is now reproduced in a differently ordered section to the same effect is Section 175 of the National Health Service Act 2006. Section 175 is one of a number of sections permitting charges to be made in Part 9 of the 2006 Act. All other charging provisions relate to categories of service, for example dental services and prescription drugs, not categories of persons. Sections 121 and 175 only permit charges to be made for services provided to "such persons not ordinarily resident in Great Britain as may be prescribed."
"Where an Authority [or NHS Trust] [or NHS foundation trust][, or a Primary Care Trust] provides an overseas visitor with services forming part of the health service, that Authority [or NHS Trust] [or NHS foundation trust] [or, a Primary Care Trust], having determined, by means of such enquiries as it is satisfied are reasonable in all the circumstances, including the state of health of that overseas visitor, that the case is not one in which these Regulations provide for no charge to be made, shall make and recover from the person liable under Regulation 7 charges for the provision of those services."
"(1) No charge shall be made in respect of any services forming part of the health service provided for an overseas visitor ...
(b) who has resided lawfully in the United Kingdom for not less than one year immediately preceding the time when the services are provided unless this period of residence followed the grant of leave to enter the United Kingdom for the purpose of undergoing private medical treatment or a determination under Regulation 6A l;] or
(c) who has been accepted as a refugee in the United Kingdom, or who has made a formal application for leave to stay as a refugee in the United Kingdom [which has not yet been determined]."
" (2) It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom or in any of the Islands at a time when he is there in breach of the immigration laws."
I will return to this when considering the definition of ordinary residence.
"There is to my mind no possible reason why paragraph 4 should be construed as requiring more by way of positive legal authorisation for someone's presence in the United Kingdom than that they are at large here pursuant to the express written authority of an immigration officer provided for by statute." (paragraph 28, 574H to 575A).
He did so in the light of his analysis of the purpose and effect of Section 11 of the Immigration Act 1971 in paragraph 25:
"Even assuming that Section 11's deemed non-entry 'for purposes of this Act' would otherwise be capable of affecting the construction of the 1999 Act and the 2000 Regulations (as legislation in pari materia), it would in my judgment be quite wrong to carry the fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all. 'The intention of a deeming provision, in laying down a hypothesis, is that the hypothesis shall be carried as far as necessary to achieve the legislative purpose, but no further' - the effect of the authorities as summarised by Bienion, Statutory Interpretation, 4th ed (2002), section 304, p 815."
Similar considerations must apply to Section 11 of the Nationality Immigration and Asylum Act 2002.
"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration." (343 G-H)
Applying that test, each of the students were ordinarily resident for the relevant purpose. Lord Scarman identified as an "important exception" to that test the lawfulness of his residence:
"If a man's presence in a particular place or country is unlawful, eg in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence (even though in a tax case the Crown may be able to do so) .... There is, indeed, express provision in the Act of 1971, section 33(2). But even without this guidance I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could not have been obtained if he had acted lawfully." (343G to 344B)
"'Immigration status', unless it be that of one who has no right to be here, in which event presence in the United Kingdom is unlawful, means no more than the terms of a person's leave to enter as stamped upon his passport. This may or may not be a guide to a person's intention in establishing a residence in this country: It certainly cannot be the decisive test, as in effect the courts below have treated it." (348D to E)
"The terms of an immigrant student's leave to enter and remain here may or may not throw light on the question: it will, however, be of little weight when put into the balance against the fact of continued residence over the prescribed period - unless the residence is itself a breach of the terms of his leave, in which event his residence, being unlawful, could not be ordinary." (349E)
"I conclude, therefore, that there is no general principle of legality excluding certain people from access to social services, as opposed to specific statutory provisions which may do so. This is scarcely surprising. Local social services authorities are skilled at assessing need and arranging the appropriate services. That is their statutory duty under Section 47 of the Community Care Act 1990. It is also the professional skill of social workers. They are not and never have been professionals in making moral judgments as between particular people with identical needs. They have no particular skills or facilities for assessing whether or not a person is subject to immigration control or has a real choice about whether or not to return to his home country. It is the Secretary of State, with the Immigration and Nationality Directorate, who knows the individual's immigration status, has routine access to the local country information, which might make such judgments possible, and has the power to determine whether or not a person should be allowed to remain here, and to remove him if he should not.
"Further, as Simon Brown LJ has demonstrated, immigration status is a complex matter. To arrive at a definition of those whose presence here was so questionable as to give rise to an assumption of ineligibility for services would be a difficult task. Should it depend upon whether or not a criminal offence is committed (bearing in mind that the offence in question is not a particularly serious one); or upon whether or not the person concerned can currently be removed from the country immediately (which is more complicated still); or upon whether or not the person currently has a permission to be here which does not preclude his resort to such services? Where does the question of choice between staying and returning come into the equation?
"It makes much more sense both in practice and in principle to leave the task of deciding upon need to the provider of health, education or social services, and the task of deciding whether or not a person should be allowed to remain here to take advantage of those services to the immigration authorities. This is subject, of course, to the power of Parliament expressly to limit eligibility to those services where eligibility has previously depended solely upon need."
Hale LJ's words can be applied mutatis mutandis to clinicians and the managers of National Health Service Trusts.
"Immediately necessary treatment - if the opinion of the clinicians treating the patient is that treatment is immediately necessary then it must not be delayed or withheld while the patient's chargeable status is being established. There is no exemption from charges for 'emergency' treatment (other than that given in an accident and emergency department - see para 6.7(a) but trusts should always provide immediately necessary treatment whether or not the patient has been informed of, or agreed to pay, charges. Not to do so could be in breach of theHuman Rights Act 1998. While it is a matter of clinical judgment whether treatment is immediately necessary, this should not be construed simply as meaning that the treatment is clinically appropriate, as there may be some room for discretion about the extent of treatment and the time at which it is given. In some cases allowing the visitor time to return home for treatment rather than incurring NHS charges. When providing immediately necessary treatment clinicians should be asked to complete an advice from Doctors or Dentists form at Appendix 1;
"Urgent treatment - where the treatment is, in a clinical opinion, not immediately necessary, but cannot wait until the patient returns home. Patients should be booked in for treatment, but the trust should use the intervening period to establish the patient's chargeable status. Wherever possible, if the patient is chargeable, trusts are strongly advised to seek deposits equivalent to the estimated full cost of treatment in advance of providing any treatment. Any surplus which is paid can be returned to the patient on completion of treatment. When providing urgent treatment clinicians should be asked to complete an advice from Doctors or Dentists form at Appendix 1;
"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 first referral to the hospital. Where the patient is chargeable, the trust should not initiate treatment processes, eg 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."
"The problem is in all significant respects a problem of foreign nationals either coming to this country (benefit tourism) or outstaying their leave to be here (irregular status) in order to take advantage of the priority housing status accorded to homeless families. Measures directed at this, I accept, require no explicit justification, whether because they are an aspect of immigration control or because they are an obviously legitimate response to a manifest problem."
Those words apply mutatis mutandis to the obligation to provide medical services under the National Health Service Acts.