In the matter of an application by Robin McMinnis and the Commissioner for Older People for Northern Ireland for Judicial Review (Appellants)

Case summary

Case ID

UKSC/2025/0076

Parties

Appellant(s)

(1) Robin Mc Minnis (2) Commissioner for Older people for Northern Ireland

Respondent(s)

Department of Health

Issue

(1) Was a Department of Health ("DOH") policy unlawful because it exceeded DOH’s statutory powers? (2) Was DOH’s failure to issue guidance on the policy irrational? (3) Are alleged breaches of section 75 of the Northern Ireland Act 1998 (“s.75 NIA”) amenable to judicial review?

Facts

This appeal challenges DOH’s approach to “continuing healthcare” (“CHC”). CHC is the practice of the health service meeting the cost of social care needs driven primarily by a health need in Northern Ireland in a post-hospital setting. The DOH adopted a policy in relation to CHC in 2010 (the “2010 policy”). It adopted a revised policy in 2021 (the “2021 policy”). The 2021 policy contains a narrower eligibility test for CHC than the 2010 policy. The two Appellants brought separate challenges against DOH which were heard together in the courts below. The first Appellant, Mr McMinnis, is 77 years old and has multiple sclerosis. He retains full cognitive function, but is physically paralysed, save for his head and eyes. In early 2017, he became a permanent resident in a nursing home. He requires significant specialist care, costing c.£25,000 annually. On 4 April 2017, Mr McMinnis applied for CHC from the Belfast Health and Social Care Trust (“the Trust”). The Trust refused the application on the basis that he was ineligible under the 2010 policy. After a review by the ombudsman, the Trust re-assessed Mr McMinnis. On 28 May 2021, the Trust again refused his CHC application. Mr McMinnis brought a claim for judicial review against DOH and the Trust. The second Appellant, the Commissioner for Older People for Northern Ireland ("COPNI"), is a statutory role which safeguards and promotes the interests of older people in Northern Ireland. COPNI brought a claim for judicial review against DOH’s 2021 policy. COPNI argued that, in formulating the 2021 policy, DOH had not had due regard to the need to promote equality of opportunity between people of different ages, as it was required to do under s.75 NIA. The High Court heard the claims together, and made orders: (i) quashing the Trust’s 28 May 2021 CHC refusal decision; (ii) declaring that DOH’s failure to issue guidance on the 2010 policy was irrational and unlawful; and (iii) quashing DOH’s 2021 policy for breach of s.75 NIA. The Trust did not appeal (i) so it is no longer a party. DOH appealed (ii) and (iii) to the Court of Appeal. The Court of Appeal allowed DOH’s appeal. It relevantly found that: (a) the 2010 policy was unlawful as it exceeded DOH’s statutory powers; (b) DOH’s failure to issue guidance on the 2010 policy was not irrational (and therefore it was lawful); and (c) judicial review is unavailable for alleged breaches of s.75 NIA, so the 2021 policy could not be quashed. The Appellants now challenge the Court of Appeal’s conclusions on (a), (b) and (c) before the UK Supreme Court.

Date of issue

28 April 2025

Case origin

PTA

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