AO and another -v- Kings College Hospital NHS Foundation Trust (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: CO/2152/2023
AC-2023-LON-001806

In the High Court of Justice
King’s Bench Division
Administrative Court

6 November 2023

Before:

The Honourable Mrs Justice Lang DBE

Between:

The King on the application of
AO
EO (a child by his mother and litigation friend, AO)

-v-

Kings College Hospital NHS Foundation Trust

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimants and the Acknowledgment of service filed by the Defendant;
Order by the Honourable Mrs Justice Lang DBE

  1. The application for permission to apply for judicial review is refused.
  2. Pursuant to CPR r.39.2, in any report of these proceedings, there shall be no publication of the name and address of the Claimants and the Second Claimant’s litigation friend, nor any other particulars likely to lead to their identification. In the proceedings, the parties shall be anonymised and referred to as set out in the title to this order.
  3. If the Claimants make a renewed application for permission, the Claimants’ solicitors must, within 14 days of the date of this order, file with the Court copies of case documents which have been anonymised and/or redacted to protect the identity of the Claimants, in accordance with paragraph 2 above.
  4. Non-parties may not obtain any documents from the court file which have not been anonymised and/or redacted to protect the identity of the Claimants, in accordance with paragraph 2 above.
  5. The Claimants do pay the Defendant’s costs of preparing the Acknowledgment of Service. The Claimants have the benefit of costs protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The amount of costs that the Claimants shall pay shall be determined on an application by the Defendant under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. Any objection by the Claimants to the amount of costs claimed shall be dealt with on that occasion.

Reasons

Delay

  1. CPR r.54.5(1) requires that a claim must be filed promptly, and in any event not later than 3 months after the grounds to make the claim first arose.
  2. The Defendant notified the Claimants of the decision to charge for EO’s NHS treatment in a letter dated 8 March 2017, accompanied by the invoices. That was the date at which the grounds to make the claim first arose. However, this claim was not filed until 12 June 2023, more than 6 years later.
  3. The claim form identifies the decision under challenge as the Defendant’s “failure to review and reverse NHS charges levied for NHS care provided” on 3 April 2023. However no decision was made on that date. The date appears to have been selected by the Claimants’ solicitors because it was the deadline they imposed for a response to their second pre-action protocol letter dated 20 March 2023.
  4. In the first pre-action letter, dated 28 November 2022, the Claimants’ solicitors stated:
    “Decision under challenge
    3. [EO] challenges the decision of the Trust to charge him for NHS services. By this letter he seeks a review and reversal of that decision…..”
  5. In the second pre-action letter, dated 20 March 2023, the Claimants’ solicitors stated:
    “Decision under challenge – summary
    4. The Claimants challenge the NHS Trust’s ongoing failure to review and cancel the decision to levy charges for NHS care provided to [EO]….”.
  6. The Defendant was not under any legal obligation to review its earlier decision, and did not at any stage offer to do so. When the Claimants’ solicitors first contacted the Defendant, on 16 April 2021, enquiring about the charges, the Defendant responded, on 20 April 2021, explaining that the charges had been written off for accounting purposes on 31 March 2018, but the debt had not been waived or extinguished.
  7. In my view, the Claimants have sought to circumvent the time limits for judicial review by seeking reconsideration of the original decision. This is impermissible. As Chamberlain J. said in Inclusion Housing Community Interest Company v Regulator of Social Housing [2020] EWHC 346 (Admin) at [69]:
    “A decision maker is under no obligation to reconsider a final decision once it has been communicated. A claimant cannot in general start time running again by writing a letter asking the decision-maker to reconsider and then treating the refusal to reconsider as a new decision.”
  8. The Claimants have not made an application for an extension of time, or explained the delay. In my view, there would have to be exceptional circumstances to justify the grant of an extension of over 6 years. No exceptional circumstances have been shown in this case.

Merits

  1. Ground 1 alleges that the Defendant acted unlawfully in failing to reconsider its decision. However, in the circumstances of this case, there was no obligation on the Defendant to reconsider its decision, in response to the Claimants’ pre-action letters. The letters did not identify any fresh evidence or change of circumstances which might justify a reconsideration. They simply alleged that the decision was unlawful.
  2. Ground 2 contends that the Second Claimant – a non-British child born in the UK – is not an “overseas visitor” who is not “ordinarily resident” in the UK, within the meaning of regulation 3 of the National Health Service (Charges to Overseas Visitors) Regulations 2015 (“the 2015 Regulations”).
  3. The Claimants further submit that the Second Claimant did not require leave to enter or remain in the UK and so section 39(1) of the Immigration Act 2014 was not applicable. Section 39(1) provides that a reference in the NHS charging provisions to “persons not ordinarily resident … includes (without prejudice to the generality of that reference)” a reference to persons who require leave to enter or remain but do not have it, and persons who have leave to enter or remain for a limited period.
  4. In my view, Ground 2 is unarguable.
  5. The Department of Health and Social Care’s “Guidance for NHS Service Providers on charging overseas visitors in England” (September 2023) explains that the NHS is a residency-based healthcare system and eligibility for relevant services without charge (aside from specified exceptions) is based on the concept of “ordinary residence”. An “overseas visitor” is any person who is not “ordinarily resident” in the UK. Although that term is not defined in the 2015 Regulations, the test in Shah v Barnet LBC [1983] 2 AC 309 is generally applied. Thus, a person will be “ordinarily resident” in the UK when that residence is lawful, adopted voluntarily, and for settled purposes as part of the regular order of their life for the time being, whether of short or long duration (see Chapter 1, Executive Summary and Chapter 5, paragraph 113).
  6. The Guidance states, in paragraph 113, that nationals who are subject to immigration control must be able to demonstrate that they have indefinite leave to remain (or equivalent status) in order to be “ordinarily resident”.
  7. Paragraph 117 provides:
    “Generally, children under 16 share the same place of ordinary residence as their parents (P(GE) (an infant) [1964] 3 All ER 977). Children who are not British citizens, whose parents require permission to enter or remain, or do not have permission to enter or remain, cannot be considered ordinarily resident as they are liable to be removed with their parents. This includes children born in the UK….”
  8. It is not in dispute that the First Claimant is a Nigerian national, who entered the UK on a visitor visa in July 2013 and overstayed. At the date of the Second Claimant’s birth, on 11 February 2016, and his subsequent medical treatment in 2016 and 2017, she did not have leave to remain and she was liable to removal. Because of her immigration status, she was clearly an overseas visitor who could not be considered “ordinarily resident” for the purposes of NHS charging. She did not regularise her immigration status until 1 March 2022, when she was given limited leave to remain until 1 September 2024, together with the Second Claimant.
  9. The Second Claimant is also a Nigerian national. He did not acquire any entitlement to British citizenship by virtue of his birth in the UK as neither of his parents are British or have settled status in the UK. In my view, the Second Claimant could not be considered to be “ordinarily resident” in 2016 – 2017 because he was liable to be removed from the UK at any time, along with his mother, the First Claimant: see paragraph 117 of the Guidance above. His position is distinguishable from the claimant in Akinyemi v Secretary of State for the Home Department [2017] 1 WLR 3118 who had the right to acquire British nationality as a child because his father had indefinite leave to remain (per Underhill LJ at [19] – [22]). At [35], Underhill LJ observed “if his parents had not had leave to enter or remain he could have been removed with them …. but that had never been so in his case”.
  10. Ground 3 is misconceived. The Defendant did not seek to charge the Second Claimant personally for any healthcare services. The invoices were addressed to the “Parent or Guardian” of EO and the account name was given as “Parent or Guardian”.
  11. For these reasons, permission is refused.