Challenge to exclusion of Hepatitis B from…

In R (CN) v Secretary of State for Health and Social Care [2022] EWCA Civ 86 the Court of Appeal dismissed a challenge to the exclusion of people who contracted hepatitis B (HBV) from the English infected blood financial support scheme (EIBSS). EIBSS is one of four national schemes intended to provide financial support to individuals who received infected blood from blood transfusions and blood products as part of the ‘Infected Blood Scandal’ and their family members.

The infected blood scandal

The Infected Blood Scandal involved the infection of thousands of individuals, many of them children, with hepatitis and HIV/AIDs, principally during the 1970s and 1980s. The Infected Blood Scandal is currently under consideration by the Infected Blood Inquiry, which is chaired by Sir Brian Langstaff and is due to report in mid-2023. While there has never been any formal admission of wrongdoing or liability by the UK government, it has created a number of ex gratia schemes to provide support to infected and affected individuals. These schemes have been consistently criticised by infected and affected individuals as providing support that is too restrictive to meet their needs.

One of the criticisms of the schemes is that they have never provided any support for those infected with Hepatitis B. While generally a less severe disease than hepatitis C (which is covered by EIBSS and other support schemes), hepatitis B can have severe effects, including cirrhosis and liver cancer.

The appeal

The claimant/appellant in this case, CN, contends that he was infected with HBV when he received blood transfusions as part of a bone marrow transplant in 1989. CN was refused permission, which he appealed to the Court of Appeal. In summary, CN’s arguments were that the exclusion was in breach of Articles 8, 14, and Article 1 of Protocol 1 of the ECHR as well as in breach of s. 15 of the Equality Act 2010.

The Court of Appeal dismissed CN’s appeal against the High Court’s refusal of permission. While proceeding on the basis that the Secretary of State’s conduct in setting up EIBSS was arguably within the ambit of Articles 8 and 14 ECHR, the Court found that he could nevertheless justify the difference in treatment between HBV sufferers and those with AIDS and hepatitis C (who were included within the scheme). The Court relied upon the Supreme Court’s decision in R (SC) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26, which held at §158 that “…in cases concerned with judgments of social and economic policy in the field of welfare benefits and pensions […] the judgment of the executive or legislature will generally be respected unless it is manifestly without reasonable foundation”. The Court of Appeal held that CN had failed to meet that high threshold, in particular as:

The scheme was an exception to the general regime of fault-based liability, established to respond to a pressing moral claim;
The Secretary of State’s discretion should be given a wide margin of discretion;
There was not yardstick by which the court could judge which claims were more or less deserving.

The Court concluded in pragmatic language that “[i]n essence, the Secretary of State was obliged to draw the line somewhere to make the cost affordable. The Court cannot second guess that political judgment”.

This judgment may be rendered academic before long. The government has commissioned a study by Sir Robert Francis QC into a framework for overhauling the compensation to be provided to victims of the Infected Blood Scandal. That report is under consideration by the Infected Blood Inquiry, which is likely to make recommendations regarding its implementation to the government. Sir Robert recommended substantial changes to the infected blood financial support schemes, including overhaul of EIBSS. While he did not recommend that HBV should be included in all cases, he recognised that “[t]here may be a case for an exception for chronic HBV infection with serious symptoms requiring treatment for cirrhosis”. How the Inquiry and government respond to this recommendation is yet to be seen.

A procedural issue

The Court of Appeal also found that CN was substantially out of time to bring his claim. It concluded that time started to run in 2017 (when EIBSS was created) and that the exclusion of HBV sufferers was not a continuing act. The Court concluded that “…here there are no continuing activities of the state beyond the initial acts of not including HVB sufferers in the ex gratia schemes”, applying Johnson v Secretary of State for the Home Department [2016] UKSC 56 in which Lady Hale explained that “the concept of a ‘continuing situation’ refers to a state of affairs which operates by continuous activities by or on the part of the state to render the applicants victims”.

Miranda Butler is a barrister at Landmark Chambers specialising in public law and human rights. She also teaches at LSE University.