Scottish Court of Session Decisions

"a) an initial lump sum of £10,000 to cover inevitable anxiety, stress and social disadvantage;

b) an additional lump sum of £40,000 to those who develop chronic Hepatitis C;

c) in addition, those who subsequently suffer serious deterioration in physical condition because of their Hepatitis C infection, e g, cirrhosis, liver cancer or other serious condition(s), should be entitled to additional financial support (on an ongoing basis if necessary) as may be assessed appropriate by the trust. This financial support should be calculated on the same basis as common law damages, taking account of the payments made under a) and b) above;

d) where people who would have been beneficiaries of these arrangements are deceased and their death was not due to the Hepatitis C virus, the above payments should pass to their executors. Where their death was due to the Hepatitis C virus, the trust should provide for payments to be made to dependant children, spouses, partners or parents, as appropriate."

[5] On 11 December 2002 Lord Ross gave evidence before the HCCC and spoke to the Expert Group's recommendations. He stated that the Expert Group recognised that the decision on the above recommendation was political and not for the group to make, that they appreciated that there were many competing demands made on the health budget and that that was why they had insisted on being advised what the measures would cost, but that they felt that the figures were reasonable and that it ought to be possible for them to be accommodated in the health budget.

[6] In a statement to the committee the then Minister for Health and Community Care (Malcolm Chisholm) stated:

"We said in our response to the Expert Group 's report that we share its concerns for those who, through no fault of their own, are suffering 'serious long-term harm'. Those are the words that the Health and Community care Committee used in its report last year. We would very much like to find a way of doing something to help those people.

However, there are quite complex medical, legal and financial considerations. The way in which Hepatitis C presents is variable. Finding a fair set of criteria for making payments and meeting people's needs is not necessarily straightforward. It is also clear that what the Expert Group is proposing involves a very large sum of money and that it would not necessarily focus help on those who need it most. We must take account of the costs of any payment scheme in the light of our other health priorities, which are vital to the people of Scotland.

We are looking very carefully at who needs help and at the best way to design a scheme and structure payments so that the individuals involved benefit fully. There are two considerations. First, we must act within devolved powers, and that might need clarification when it comes to the kind of payments that we are proposing. Secondly, we need to look at the interface with the social security system and devise a scheme that fits it as well as possible, avoiding a situation in which payments lead to social security payments being withdrawn or refused."

The above two considerations were in his view capable of resolution and if progress could not be made on them by the turn of the year he thought it might be necessary to explore other (unspecified) avenues. He also pointed out at one stage in his evidence that "a lot of the people that the Expert Group is proposing should be helped are no longer alive" (sic).

[7] At a meeting of the HCCC on 29 January 2003 the Minister made, inter alia, the following statements:

"I have looked at the details of the proposals from the Expert Group on financial and other assistance for NHS injury, and some difficulties have emerged as a result of my reflections. The main group about which we are all concerned is the group that is made up of people who have contracted Hepatitis C from blood products and who are still alive. It would be reasonable to focus assistance on those people who are still with us and who contracted the Hepatitis C virus in that way. That is the group I would like to help. ...

My thinking is that I would like to give a payment to everyone who contracted Hepatitis C from blood products and who is still alive. I propose the payment of a sum of £20,000 to everyone who is in that position. I still intend to follow the Expert Group 's thinking about a further payment at the cirrhosis, or more advanced, stage of the illness. That is consistent with what I said before Christmas. I propose that £25,000 should be paid at the advanced stage. In concentrating on the people who are still alive I differ from the Expert Group . That is consistent with what I said about targeting support on those who are suffering now as a result of having contracted the virus in the way in question."

When a member of the committee stated that he had emphasised the fact that payment would be made only to those who are still alive and asked what the cut-off date would be for that, the Minister replied:

"I have not come to that level of detail. The important thing is that I have carried forward the principles that I described previously to the committee. A date will have to be set, but the principle is that help should be given to those who are suffering. The corollary to that is the fact that we are talking about people who are still alive. I do not envisage a great deal of retrospection, as the principle of helping those who are still alive self-evidently means that the date will have to be set at around the time that the help kicks in.

That is the general principle that I would follow, and it is what the public would expect, in so far as they support the principle. I would sympathise with that. We want to help those who are suffering as a result of having contracted the virus in this way. In a way, I am simplifying what the Expert Group proposed. If somebody is alive now and has the virus because of NHS treatment they will get the initial payment."

Later another member of the committee pointed out to him that

"People might die between now and the commencement of the scheme."

The Minister did not follow up on that statement.

[8] The Expert Group published its final report in March 2003. Referring to the above Ministerial statement, it said at para 4.20:

"While we appreciate the Minister's desire to focus on people who are alive, we also believe it is manifestly unjust that no payments are proposed for our category D (people who are deceased). This, in particular, can only serve to increase the worry and frustration of those who are alive because they might not survive to qualify for such a payment. For those who have died, it can only add a feeling of unfairness to the grief of the relatives, especially when the delay which cuts off compensation is no fault of the deceased. If the Minister is concerned about the category of relatives being too wide he could of course restrict it to payments to immediate relatives and dependants, eg, spouses/partners and children."

[9] On 31 March 2003 the Scottish Executive issued its response to the Expert Group's final report in which it stated that it would be prepared to fund a scheme as proposed by the Minister on 29 January 2003, but that before establishing such a scheme it would want to be certain that making the payments in question would not result in social security payments being withdrawn or reduced and also that it needed to establish that it did have the necessary powers to operate such a scheme.

[10] In a subsequent news release dated 29 August 2003 the Scottish Executive stated:

"A payment scheme for people in Scotland infected with Hepatitis C from NHS blood products took a major step forward today, Health Minister Malcolm Chisholm announced today (sic).

In a letter to the Health and Community Care Committee the Minister revealed that the UK Government has agreed that the Scottish Executive does have the powers under the Scotland Act to establish the proposed scheme.

And in a parallel announcement the Department of Health has decided to provide financial assistance to people in England.

Mr Chisholm said:

'I am very pleased that the devolved issue has been clarified and we can now get on with the detailed business of establishing the scheme.

I am now hopeful that the benefits issue with the Department of Work and Pensions will be resolved to a satisfactory conclusion and the people affected will be able to receive the financial assistance we have proposed in the near future.' (sic)"

The corresponding English news release stated that "the details of the payments have still to be worked out", the corresponding Welsh one that it still remained "to work out the details for the scheme" and the corresponding Northern Irish one that "details of how the scheme will work and what details will be available are still being finalised".

"The ex gratia payment scheme for people infected with Hepatitis C from NHS blood or blood products will now be administered through a UK-wide scheme, it was announced today.

The UK scheme, to be administered by a new independent body known as the Skipton Fund, will operate on the same basis as the Scottish scheme announced earlier this year.

It will award lump sum payments of £20,000 to all those who now have Hepatitis C from blood or blood products, with a further £25,000 being awarded when people reach a more advanced stage of the illness.

General eligibility for payments is defined in terms of having received blood, blood products or tissue from the NHS in Scotland before September 1991. No payments will be made in respect of those who have died before August 29 2003, when the Health Minister announced that it had been confirmed the Scottish Executive had the legal powers to operate the scheme, or to people who have cleared the virus spontaneously.

In the case of eligible people who die between August 29 and the time when the scheme is in a position to make payments then the payments will be made to their dependants."

[12] In a news release dated 29 June 2006 the Scottish Executive stated, inter alia:

"The Skipton Fund, the body set up to manage the UK-wide ex gratia payment scheme for people infected with Hepatitis C from NHS blood or products, will go live on the 5 July 2004.

Applications will be processed from Monday 5 July.

General eligibility is defined in terms of having received blood, blood products or tissue from the NHS before September 1991. No payments will be made in respect of those who have died before 29 August 2003 or to people who have cleared the virus spontaneously in the acute phase of the disease. In the case of eligible people who die between 29 August 2003 and 5 July 2004 the payments will be made to their estate. Where eligible persons die after 5 July 2004 payments will only be made to their estate if the eligible person had applied to the Skipton Fund when they were (sic) still alive."

The above eligibility criteria are set out in para 3(g) of a guidance note issued by the Skipton Fund.

"The rationale for the transitional period from 29 August 2003 to 5 July 2004 was that it was anticipated that it would take some time to make administrative arrangements and get the scheme up and running and that there might therefore be a delay before the first payments would be made under the scheme. The transition period was designed to cover those claimants who were alive when the scheme was announced and who, therefore, had an expectation of receiving a payment but who, unfortunately, died before the first payments were made. These arrangements were announced in the press release of 3 June 2004."

[14] Since the coming into operation of the Skipton Fund there has been enacted section 28 of the Smoking, Health and Social Care (Scotland) Act 2005, which came into force on 17 October 2005. It provides, so far as relevant, as follows:

"28 Payments to certain persons infected with hepatitis C as a result of NHS treatment etc.

(1) The Scottish Ministers may make a scheme for the making of payments by them, or out of money provided by them, to, or in respect of -

(a) persons who -

(i) before 1st September 1991, were treated anywhere in the United Kingdom under the National Health Service by way of the receipt of blood, tissue or a blood product;

(ii) as a result of that treatment, became infected with the hepatitis C virus; and

(iii) did not die before 29^th August 2003.

(2) A scheme under this section must - ...

(e) provide that a claim may be made in respect of a dead person,
without such a claim having to have been made prior to that person's death."

On 24 April 2007 the Scottish Ministers adopted the Skipton Fund as a scheme under section 28.

The grounds of challenge
[15] The petitioner challenges the lawfulness of the provision of the non-statutory Fund that no payments will be made in respect of those who have died before 29 August 2003. She avers that she wishes to make an application for an ex gratia payment from the Fund but is precluded from doing so because the deceased died before 29 August 2003. At a time when she was unaware of the rationale for this exception as set out by Mr MacLeod in para 27 of his affidavit she averred that the eligibility criteria gave no explanation as to the rationale behind the selection of the date of 29 August 2003 and that she believed that its selection was arbitrary, irrational and unreasonable, disproportionate and in breach of a legitimate expectation. She averred that the eligibility criterion unfairly precluded from payment representatives of persons who were infected with Hepatitis C over a lengthy period of time and that it could and should have recognised that persons who died before 29 August 2003 as a result of infection with Hepatitis C caused by contaminated blood, blood products or tissue were as deserving of payment from the Fund as those who died after that date. Had the deceased not died he would have been eligible to make a claim. Had he died on or after 29 August 2003 the petitioner would have been able to make a claim. The eligibility criteria made no provision for exceptional or discretionary payments to the representatives of persons infected with contaminated products who died before 29 August 2003. In failing to make provision for exceptional or discretionary payments in respect of infected persons who died before 29 August 2003 the Scottish Ministers had acted unreasonably and / or disproportionately having regard to the intention of the Fund to provide compassionately for persons who had suffered as a result of infection by a contaminated product. The petitioner also avers that the provision excluding payments to those whose infected relatives died before 29 August 2003 breaches her human rights under Article 14 (A14) of and Article 1 of Protocol 1 (A1P1) to the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). She seeks the appropriate declarator and reduction of the eligibility criterion. It was conceded (in my opinion, correctly) on behalf of the Scottish Ministers ("the respondents") that the decision under challenge was susceptible to judicial review.

Submission for the petitioner
[16] The submission for the petitioner was lengthy and wide-ranging, but I think that it can be summarised as follows. The decision under challenge was unreasonable, irrational and disproportionate, defeated the petitioner's legitimate expectation to an ex gratia payment and in contravention of A14 and A1P1. The petitioner did not seek to challenge a cut-off date in principle, but only to submit that the cut-off date of 29 August 2003 was irrational. There was no indication that considerations of allocation of scarce or limited resources played any part in the selection of the date in question: the rationale behind the choice of that date was to be found in what Mr MacLeod said in para 27 of his affidavit. The date chosen was referable to an announcement about a fund out of which ex gratia payments would be made in respect of victims. The respondents founded upon the effect of that announcement. If they had plucked a date out of the air (such as 1 January 2000) not referable to any event in the whole process, that would have been unreasonable. The date chosen had the effect of excluding payments in respect of part of the group of victims, namely, those who died before 29 August 2003, who were not in any material way different from those who died on or after 29 August 2003: the effect of that choice was to divide the victims into two categories.

[19] The respondents' position appeared to be that no one could have had a legitimate expectation to receive a payment from the Fund before 29 August 2003, and that the critical change which the announcement of that date made was the confirmation that the creation of a scheme was within devolved powers. It would therefore appear to be their position that without confirmation of devolved competence If one considered carefully what was said in the announcement of 29 August 2003, and had regard to the underlying rationale of expectation, all that was said was that persons alive on that date would be able to make a claim on and receive payment from any fund to be created. There was no requirement to create a fund at that time: there was no statutory obligation to create Fund, and there remained the issue of social security claw-back to be resolved. The respondents' position appeared to be that the absence of a confirmation of devolved competence resulted in the inability to create in a person who was alive as at the date of a statement an expectation that a claim could be made and a payment received. That position was applied inconsistently by the respondents, who relied upon it in relation to the statement made by the Minister on 29 January 2003 but maintained that the announcement of 29 August 2003 gave rise to an expectation. When the two statements were properly considered there was no material difference between them when tested against the rationale of expectation. In essence both statements made clear that a person alive at the date of the statement had an expectation that he would be able to make a claim and receive payment from the Fund to be created: indeed, it could be legitimately maintained that the Minister's statement of 29 January 2003 more clearly expressed the expectation and gave it greater content than did the announcement of 29 August 2003.

[20] It was submitted that to select 29 August 2003 as the date from which the exclusion was to apply was irrational in accordance with the test set out in ex parte Smith and Rogers. In placing reliance upon the rationale of expectation it was incumbent upon the respondents to explain rationally why one representation gave rise to an expectation (and was thus relied upon) when an earlier representation (which was materially the same as that relied upon by the respondents) apparently did not give rise to an expectation. No explanation at all, far less any rational one, had been advanced by the respondents. It was irrational to suggest that, because of the involvement of the other three health departments in the United Kingdom, consistency required that the earlier representation made in respect of Scotland fell to be disregarded. It was plain that any scheme which thereafter fell to be created could have recognised in this context the particular Scottish dimension (as subsequently occurred). The statement made by the Minister on 29 January 2003 contained a clear and unequivocal representation to people in Scotland who had been infected with the Hepatitis C virus as a result of NHS treatment, and who were then alive, that they would be able to claim and receive payment from a Fund yet to be created. That statement created a legitimate expectation on their part that they would be able to claim and receive a payment. The respondents' decision to rely upon a later date under reference to a later statement so as to fix an eligibility criterion operated unlawfully to defeat that expectation.

[27] The parliamentary and other material produced showed that the date of 29 August 2003 had been chosen for rational reasons. In that material the following considerations had received particular emphasis:

(a) priority given to those alive and exposed to long-term suffering;

(b) limited resources and the need to take account of other demands on the
health budget;

(c) the need to work closely with the UK Government, since the power to
make such a scheme was arguably a reserved issue, and the question of disregarding ex gratia payments under the scheme for social security purposes was undoubtedly a reserved issue; and

(d) the economies of scale in adopting and administering a UK-wide
scheme.

The respondents had expressly considered the question of a cut-off date and the related question of resources. The key contemporary material was contained in the report of the Expert Group, the respondents' response to it and the ministerial statements to the HCCC. Similar but later material existed for proceedings on what became the 2005 Act.

[28] The need for a cut-off date emerged from the analysis of costs prepared by the Expert Group, taken together with the level of resources available in the health budget. It was relevant to note two further important features, namely: (i) that a cautious approach towards funding the scheme was rationally justified because of the "long tail" characteristic of the virus (see A at para 193); and (ii) that since no regime of prescription or limitation applied to claims of this nature, there might turn out to be a substantial potential liability to claims brought on behalf of those who had died before 29 August 2003, involving significant potential for disruption to the health budget. The Minister had explained the financial constraints clearly to the HCCC and explained why the recommendations of the Expert Group were not going to be implemented in full. The natural inference was that the scheme he promulgated later in the same year was compatible with the resources available from the health budget. The decision was therefore taken by the respondents after scrutiny by the HCCC and in a matter concerned with the allocation of limited resources. The intensity of review by the court should therefore be at the bottom end of the scale.

[29] Not only was consideration given to the appropriateness of a cut-off date and the resource issue when the scheme was initially considered by the Scottish Parliament in 2002/2003, but these considerations were renewed on proceedings on the Bill which became the 2005 Act. The question of revoking the 2003 cut-off date was then expressly considered. An amendment proposing that that should be done was accepted at Stage 2 of the Bill, but ultimately rejected at Stage 3 after full discussion of the merits and demerits of that cut-off date. Claims in respect of victims who had died before 29 August 2003 were therefore excluded after a process of detailed consideration.

"8. The Scottish Ministers gave careful consideration to the recommendations of the Expert Group. They also had regard to other ex gratia or no fault schemes in the UK and other countries. These included the payments made by the MacFarlane and Eileen Trusts, the v CJD Scheme, the Criminal Injuries Compensation Authority, the Pneumoconiosis Etc (Workers' Compensation) Act 1979, the Vaccine Damage Payments Act 1979, the scheme in operation in the Republic of Ireland for compensation of hepatitis C patients and no fault schemes established in New Zealand and Sweden.

9. The options considered included the making of lump sum payments and/or the payment of an income stream to take account of the special needs of hepatitis C sufferers. There were a number of complex legal issues which required to be considered, including the power which the Scottish Ministers might have to establish a scheme, as any new scheme for making ex gratia payments would have to be compatible with the reservation contained in section F1 of Schedule 5 of (sic) the Scotland Act which reserves social security provision. The reservation includes 'schemes supported from central or local funds which provide assistance for social security purposes to or in respect of individuals by way of benefits'. Consideration also had to be given to the possible interaction of receipt of ex gratia payments with the social security and tax regimes, both of which are reserved.

10. Importantly the Scottish Ministers had to determine whether the various options were affordable and what impact these payments would have on the health budget. The resources available to the Scottish Ministers are finite. Payments by the Scottish Ministers to the scheme require to be taken from the health budget. Payments to the scheme would directly affect the amount of money available for other matters covered by the health budget. The various calls on the budget required to be balanced against each other. The Scottish Ministers had to take into account the resources available and the various other calls upon them when determining whether there should be a scheme and if so what payments would be made, in what sums, and who would be eligible to receive them."

Removing the cut-off date at this stage would undermine the whole basis on which the Scottish Ministers (and those in the other UK administrations) had decided to allocate the funds to the scheme from their budgets and expose them to the need to reduce their intended spending in other areas of the health budget.

[31] The petitioner appeared to place some weight on events that occurred after the decision to set up the scheme was taken, and indeed after the scheme had begun to operate in July 2004, but these events were not relevant. Some significance was attached to the change to guideline 3(g) of the Skipton Fund. This came into effect on 12 January 2006 and removed the original criterion which allowed payment to the estate of a person who had died after 29 August 2003, but only where the death occurred after the commencement of the scheme on 5 July 2004, if an application had been submitted. This change did not render the respondents' decision about the cut-off date irrational. The decision to adopt the cut-off date was taken before the scheme came into operation in July 2004, as clearly stated in the news release of 23 January 2004, and could not be rendered irrational by a subsequent change in the scheme. The change was consistent with the 2005 Act and the respondents had no power to make a scheme that conflicted with the statutory scheme. It removed what the Expert Group regarded as an injustice in the scheme as originally promulgated. The fact that proceedings in the Scottish Parliament in the course of 2005 introduced various criteria in section 28 of the 2005 Act which did not feature in the scheme as originally promulgated had no bearing on the rationality of the original decision; nor did the fact that there may now be some differences in the criteria applicable to Scottish as opposed to other applicants mean that consistency in 2004 was not a relevant and rational factor for the respondents to take into account.

[32] The following observations were made to conclude the submission on rationality.

[33] So far as the petitioner's case was concerned, much had been said about the fact that the scheme was not confined to providing assistance to the living, since it allowed transmission of claims available to those alive on 29 August 2003 to their estates, but this had little to do with the petitioner's own case. Any claim the petitioner had would necessarily be by way of transmission from her late husband, so she had no interest in challenging the transmissibility of claims. Her claim was directed not at transmissibility, but at the requirement that in order to claim a person had to have survived until 29 August 2003. The petitioner had apparently and correctly agreed that there had to be a cut-off date. Her argument was that it should not be 29 August 2003. Her suggestion was that it should be 29 January 2003. This involved asking the court to substitute a date at which it arrived itself. Nothing could have made it clearer that this was an application for review of the respondents' decision on the merits. The petitioner did not in her petition ask for a different date to be substituted, but for declarator and for reduction of the criterion of survival until 29 August 2003. This raised a number of problems, having regard to the terms of the 2005 Act, but it was enough to note that the Scottish Parliament's financial information indicated that Scotland might have to withdraw from the scheme if the cut-off date were deleted. It should also be noted that the question of the cut-off date of 29 August 2003 was expressly considered by the Scottish Parliament when deliberating on the statutory scheme which was to take the place of the 2004 scheme. The date was retained. For the court to strike it out would amount to engaging in social and economic policy-making.

[34] The following points summarised the respondents' case on rationality. The petitioner's challenge was a very specific one to the adoption of 29 August 2003 as a criterion in the operation of the scheme and the exclusion of any person who was not alive on that date from the benefit of the scheme. Only in the most exceptional cases could the exercise of prerogative power to appoint the starting date for a scheme or commencement of a statutory provision be said to be irrational. In this case the choice of date had a rational basis. It was not appropriate to consider the rationality of the particular choice of date in isolation: the question was what function it served in the scheme as a whole. There was no irrationality in making the scheme subject to a specified cut-off date. The cut-off date was one of a number of features integral to the scheme that reflected the fact that resources were limited. There was therefore a particular importance in having a cut-off date since (a) the prognosis for those infected was variable, and the median duration of the period from infection to cirrhosis was 30 years, so that there was a potential long-tail element in these claims; and (b) no regime of prescription or limitation applied to cut off old claims. At the time of making the scheme the respondents had information about the number of potential claimants who were alive and other relevant financial information and were therefore in a position to form a view about the costs the scheme would involve and its impact on the health budget as a whole. The respondents had satisfied themselves that on resource grounds there had to be some restriction on eligibility under the scheme. In setting up an ex gratia payment scheme the respondents were not obliged to carry out detailed financial calculations in order to select a cut-off date: to insist on that would be for the court to enter into a review of the merits and to apply, contrary to the authorities, a rigorous scrutiny of a decision made in the field of social and economic policy. In any event no such exact calculation was possible, having regard in particular to (i) the uncertain prognosis for those infected, some of whom might spontaneously clear the disease; (ii) the uncertain take-up rate; and (iii) the uncertainty about how many claimants at stage 1 would become entitled to a stage 2 payment. The scheme as a whole reflected the limits on resources with respect to both the amount of the ex gratia payments and the number of people eligible for them, but the petitioner's challenge sought to remove one fundamental aspect of the structure of the scheme while leaving the remainder untouched: this had the effect of unbalancing the whole, because a scheme designed to distribute more payments would have been designed at the same time to distribute payments of lesser amounts. The scheme had been consistently described as one that was "targeted" at providing, or whose main purpose was providing, aid to those living with the virus, and there had been unwavering consistency in adhering to the criterion that any claimant must have been alive on 29 August 2003. The allowance of payments to the estates of those who were alive on the date the scheme was announced but had since died represented a qualification to the main principle of providing assistance to the living, but there was no reason why the main purpose could not, consistent with rationality, be subject to qualification: what was important was that the qualification was consistent with the rationale of establishing a scheme whose financial consequences were not open-ended but could be accommodated within the health budget. The respondents had been entitled on the ground of fairness to take the view that payments should be made to or in respect of everyone who was alive at the date the intention to establish the scheme was announced on 29 August 2003. That did not make their decision regarding a cut-off date irrational: the choice of that date was within the reasonable choices open to the respondents, and it would be surprising if acting fairly in public administration were to be regarded as irrational. The petitioner had maintained (on a selective reading of Mr MacLeod's affidavit) that the sole rationale for the choice of date was engendered on the date of the announcement. That overlooked not just the fuller explanation given by Mr MacLeod and supported by the evidence as a whole but the reality that the scheme had to have a starting date. No starting date would please everyone, but that could hardly mean that it was irrational to appoint one. The fact that some people necessarily fell on the wrong side of the line did not make the choice of date irrational. The selection of a date that in fairness accepted the claims of those living on the date that all health ministers in the UK announced that a scheme was being established could not properly be described as irrational.

Response for the petitioner
[51] The response for the petitioner underlined that she did not suggest that the scheme was a bad scheme save for the criticism made of the cut-off date of 29 August 2003. It was not suggested that the respondents were not entitled to decide that the scheme should be designed in a way that sought to benefit those who were still in life and coping on a day to day basis with the consequences of having been infected with the Hepatitis C virus through NHS treatment. It had been suggested for the respondents that the challenge to the rationality of the decision came close to a "merits" challenge. It did not. It was not suggested that the rationale of the decision made by the respondents to the effect that the scheme should be principally directed towards benefiting the living was in question, notwithstanding the observation of Lord Ross's Expert Group that it was manifestly unfair to exclude payments to the representatives of those who had died after having been infected with the virus. As Lord Ross had properly recognised, the decision to exclude payments to representatives of deceased victims was primarily a decision taken in the political field, and the political status of such a decision was similarly recognised on behalf of the petitioner. The prevalence of authoritative judicial thinking was that such a decision should rarely be subject to the supervisory jurisdiction of the court.

[52] There was nevertheless a significant distinction to be drawn between the approach to be taken to the type of decision which was properly within the political sphere and that which was a very specific decision taken in the context of setting an eligibility criterion to be satisfied by a claimant on a fund making ex gratia payments. The eligibility criterion challenged in the present case was set sometime between August 2003 and January 2004. The submission for the respondents had throughout repeatedly blurred an important distinction. The court had been repeatedly reminded that the respondents had had regard to the allocation of scarce resources and budgetary constraints when taking the decision. The proceedings before the HCCC on 29 January 2003 made plain that the decision to limit the fund which was to be established to operate so as to benefit the living had been taken having regard to the Expert Group's assessment of the cost were the scheme to benefit all those persons who had been infected with the virus through NHS treatment, and to that extent cost considerations were a factor. It had been repeatedly suggested on behalf of the respondents that the sort of cost considerations mentioned by the Expert Group and considered by the Minister were relevant to the decision to fix the cut-off date at 29 August 2003. They were not. That was made clear by para 18 of Mr MacLeod's affidavit, which states as follows:

"According to the Expert Group figures, there are 2,835 people who were infected with hepatitis C and who have died. Many of these people, however, would probably have died relatively soon after receiving blood transfusions, given that transfusion recipients are likely to be seriously ill, and often elderly. In many of these cases they would not have been aware of any hepatitis C infection and would not have developed any symptoms. The Expert Group estimated that the overall take-up rate for payments would be 31%. However, it can be expected that the take-up rate from relatives and dependants of the deceased would be lower. If the take-up rate in relation to the deceased is assumed to be 255 - which is broadly consistent with the Lord Ross approach - this would mean an additional 700 people claiming payments. The Supplementary Financial Memorandum to the Smoking, Health and Social Care (Scotland) Act 2005 estimated that opening the scheme to persons who had died before 29 August 2003 would double the costs of the scheme and require additional expenditure in Scotland of £20 m."

Para 27 of his affidavit made perfectly clear that, whatever cut-off date was fixed, the single rationale for the selection of that date was that claimants who were alive on the day of the announcement of the Fund had, by virtue of that fact alone, an expectation of receiving a payment. There was no evidence either in Mr MacLeod's affidavit or elsewhere to support the suggestion that this very specific decision had been taken having regard to cost considerations. The only cost considerations pointed to by the respondents related to the general issue of whether the Fund should make provision for all those who had been infected.

"It is not for the courts to consider whether the scheme with its exclusion is a good or a bad scheme, unless it can be said that the exclusion is irrational or so unreasonable that no reasonable minister could have adopted it."

The decision to impose 29 August 2003 as the cut-off date had been arrived at having regard to a specific rationale and was amenable to judicial review with a view to testing whether it could withstand logical, indeed rational, scrutiny. For the reasons previously given no rational explanation could be given for the selection of that date. It was conceded that the commencement date of the scheme for the petitioner's purpose had to be 29 January 2003.

Futility
[54] Section 28 of the 2005 Act was entirely prospective and permissive. It did not amount to a statutory imperative to introduce a scheme: all that was imperative was the requirement to include certain matters within any scheme introduced. The challenge which the petitioner had mounted to the respondents' decision to agree to the scheme's eligibility criterion was one which, if successful, would impact only upon the respondents' position: it was not being submitted that the petitioner's challenge would have any application beyond the actions of the respondents and, in particular, it was not submitted that it would affect the actions of the other administrations within the UK. The only effect in Scotland of a decision adverse to the respondents would be that the cut-off date of 29 August 2003 would be reduced. The petitioner's contention was that the appropriate date, on the basis of all the relevant information, should be 29 January 2003, which would benefit the petitioner. There was therefore no question of success for the petitioner exposing the Fund to claims which would double the financial liability of the Fund. The non-statutory scheme continued for certain purposes despite the adoption of the statutory scheme as claims made under the former would fall to be adjudicated under it. The petitioner's challenge was neither futile nor academic.

Delay
[55] The petitioner was content in response to refer to the following dictum of Lord Hope of Craighead in R (Burkett) v Hammersmith and Fulham London Borough Council [2002} 1 WLR 1593 at para 63:

"The important point to note for present purposes is that there is no Scottish authority which supports the proposition that mere delay ... will do. It has never been held that mere delay is sufficient to bar proceedings for judicial review in the absence of circumstances pointing to acquiescence or prejudice ..."

It was accepted that an application for judicial review should be brought as speedily as possible, but the court should take into account the situation in which time was allowed to pass and any prejudice suffered by the respondents through the lapse of time before proceedings commenced (Swan v Secretary of State for Scotland 1998 SC 479 per Lord President Rodger at p 487; Somerville v Scottish Ministers).

[56] The factual basis against which the issue of delay should be considered was as follows. The Fund came into being on 5 July 2004, and the terms of the scheme were not amenable to challenge before that date. The deceased had consulted solicitors in 2002 and legal advice and assistance had been applied for to consider whether he had any remedy in respect of his infection. He died on 7 March 2003. In July 2004 the petitioner consulted the same solicitors and work was carried out to investigate the nature of the scheme. She was advised of its existence and told that a claim by her in respect of the deceased's infection was excluded. In late July 2004 an application was made for legal advice and assistance in order to obtain the opinion of counsel. After funding was granted the opinion of counsel was requested. Further information was requested by counsel and, once this had been obtained, an initial opinion was provided in late 2004. The opinion was passed to the petitioner, who gave instructions in January 2005 that an application for judicial review should be presented. On 17 February 2005 an application for legal aid for proceedings for judicial review was made. The legal aid application was acknowledged by the Scottish Legal Aid Board on 21 March 2005 and further information was requested by them. A legal aid certificate was eventually granted on 30 June 2005 and accepted by the solicitors on 12 July 2005. Counsel was instructed in August 2005 to draft the appropriate petition. After counsel had obtained further information and carried out independent research he drafted the petition, which was delivered to the solicitors in October 2005. Sanction was then obtained to obtain the services of senior counsel. First orders in the judicial review petition were granted on 1 November 2005.

[57] The process from July 2004 until November 2005 had to be considered having regard to certain factors. The petitioner herself was not familiar with the process of litigation, far less that of judicial review, and did not have the resources to proceed without the benefit of legal aid. As a private individual she did not have resources to obtain information relevant to her claim. Her position fell to be contrasted with that of the respondents, a public authority. She had sought legal advice at an early stage. The provision of advice to her was far from straightforward and involved her advisers obtaining relevant information and assessing prospects against a complex and evolving legal background. Once advice had been given to the petitioner she gave instructions to pursue an application, the progress of which was thereafter dependent upon the processing of her legal aid application, which took from 17 February until June/July 2005. The petition was drafted within a matter of weeks and then presented. The petition did not involve interlocutory orders, and that meant that the need for such orders could not be prayed in aid when pushing for determination of the legal aid application. The factual subject matter was complex, involving consideration of various public statements which were not necessarily delivered in a concise and logical form. The legal assessment necessary was also complex and was made against the background of an evolving jurisprudence. The bringing of proceedings had not been subject to unnecessary or excessive delay. Matters had been progressed diligently in the context of a claim by a private individual dependent upon public funds against a public authority with resources available to it.

[58] Further, the respondents had not been prejudiced by the passage of time. They had not been prevented from carrying out their functions in relation to the Skipton Fund. They had not been required to give any undertaking not to act in a certain way pending determination of the application, or prevented from dealing with third parties. There was no suggestion that any associated functions of government had been affected. The effect of an order in favour of the petitioner would be limited. It would not call into question the validity of any payments made under the non-statutory scheme, nor would it operate to permit claims from persons beyond those Scottish claimants who died between 29 January and 29 August 2003. There was no information before the court that the order sought would cause any administrative difficulties for the Fund.

[59] Accordingly, the lapse in time between the coming into effect of the scheme and the presentation of the petition was not excessive having regard to the position of the petitioner, the complexity of the challenge and the process necessary to enable her to mount a challenge. The respondents had not acted to their detriment and there had been no interference with good administration.

Response for the respondents
[60] In answer to the petitioner's response it was submitted that, so far as cost considerations were concerned, it was not necessary for the respondents to produce "nice calculations to justify a particular decision" there was no basis for the petitioner's assertion that the cost of having a cut-off date of 29 January 2003 would be modest. If the court were to fix a new commencement date for the scheme it would be treading on financial and political considerations. All the evidence suggested that the Ministers had reasons for the chosen commencement date. The case of Somerville indicated that prejudice was not required for delay.