R (on the application of Steven Harrison) v Secretary Of State For Health & (1) Wakefield District Primary Care Trust (2) Wakefield Metropolitan District Council:

his application challenged the Secretary of State for Health’s decision, as set out in the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care 2007,  not to make available direct payments to service users to pay for health care services.

Both claimants had previously been in receipt of direct payments, Islington PCT funding Mrs Graham’s health care in this way since 2002 (by agreement with the local authority), and both adduced evidence to establish clear benefits in managing their own care through direct payments so much so that the Judge commented that “direct payments for medical care increase both the claimants’ degree of choice and flexibility in relation to medical care as well as enhancing their autonomy so that a greater degree of independent living can be enjoyed by each of them”.

Under NHSA 2006 s.1 the Secretary of State must “continue the promotion in England of a comprehensive health service designed to secure improvement in the physical and mental health of the people of England, and in the prevention, diagnosis and treatment of illness. The Secretary of State must for that purpose provide or secure the provision of services in accordance with this Act.” s. 2 states the “Secretary of State may (a) provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act, and (b) do anything else which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.” Section 3 of the NHSA 2006 requires he provide “such other services or facilities …he considers are appropriate as part of the health service”. Whilst s.12 allows him to “arrange with any person or body to provide, or assist in providing, any service under this Act”.

The claimants argued that the Secretary of State had misconstrued the NHSA 2006, that the correct interpretation of ‘services’  would allow for cash payments to be made. They sought to establish an inbuilt discretionary authority within s.2(1)(b), particularly when this is read alongside the duty set out in s.1(2), which would clearly afford the Secretary of State a power to provide cash payments directly to a service user so that they could purchase their own healthcare. The claimants also argued that the policy decision, not to make such payments available was in breach of their Human Rights, or if the NHSA 2006 did not allow for such payments then the NHSA 2006 would be incompatible with the Human Rights Act 1998 as it allowed an infringement on their rights under article 14 (the prohibition on discrimination) of the European Convention on Human Rights 1950 when taken together with article 8 because people in receipt of community care services were entitled to such payments and therefore the claimants were discriminated against on the basis of their ‘other status’ i.e. recipients of health rather than social care support.

The Judge, rejecting their argument, found that the interpretation of ‘services’ could not be widened to include cash payments, that it could only be understood in the context of the neighbouring provisions and, taking into account the history of NHS provision, as the provision of medical services. He cited other sections of the NHSA 2006 which list the range of healthcare services to be made available directly to patients as further indication that Parliament had not intended for cash payments to be included within the options for provision. R (on the application of Quintavalle) v Secretary of State for Health (2003) UKHL 13 considered. He also rejected the interpretation of s. 2(1)(b) as affording the Secretary of State a discretionary power to make available cash payments as, he concluded, this section did not confer a “power or any duty additional to powers and duties which [the Secretary of State] already possesses”. He relied on the “well-established principles of statutory construction, including the principle that special provisions override general ones” highlighting that the power set out in s.12 NHSA 2006 permitted healthcare to be provided through an intermediary as evidence that s.2(1)(b) could not be construed so widely. Nor did he find that the Secretary of State would require the ability to offer direct payments to fulfil his duties under the NHSA 2006.

The argument that the non provision of direct payments for healthcare services was in breach of the claimant’s human rights failed on two counts. Firstly there was an inability to establish that Article 8 had been engaged. M v Secretary of State for Work and Pensions (2006) UKHL 11 applied. The Judge was not satisfied that the difference to the claimants’ private lives (if they were not in receipt of direct payments) would be so substantial as to constitute a breach of their right to respect for privacy, family life, home and correspondence. Secondly he did not accept that those in receipt of community care services could be ‘comparators’ to the claimants, even with a generous interpretation of the words ‘or other status’ because the legislative regimes for the two groups not only had a different historical basis but also sought to achieve two distinct sets of policy objectives.

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