BETWEEN:

Judgment of Ms. Justice Tara Burns delivered on the 22nd October, 20181. Section 1A of the Health Insurance Act 1994, as amended (hereinafter referred to as “the Act of 1994”) sets out the principal objective of the Act as follows:-

“(1) The principle objective of this Act is to ensure that, in the interest of the common good and across the health insurance market, access to health insurance cover is available to consumers of health services with no differentiation made between them (whether effected by risk equalisation credits or stamp duty measures or other measures, or any combination thereof), in particular as regards the costs of Health Services, based in whole or in part on the health risk status, age or sex of, or frequency of provision of health services to, any such consumers or any class of such consumers, and taken into particular account for the purposes of that objective-

(a) the fact that the health needs of consumers of health services increase as they become less healthy, including as they approach and enter old age,

(b) the desirability of ensuring in the interests of society and intergenerational solidarity, and regardless of the health risk status or age of, or frequency of provision of health services to, any particular generation (or part thereof), that the burden of the cost of health services be shared by insured persons by providing for a cost subsidy between the more healthy and the less healthy, including between the young and the old, and, without prejudice to the generality of that objective, in particular that the less healthy, including the old, have access to health insurance cover by means of risk equalisation credits,

(c) the manner in which the health insurance market operates in respect of health insurance contracts, both in relation to individual registered undertakings and across the market, and

(d) the importance of discouraging registered undertakings from engaging in practices, or offering health insurance contracts, whether by segmentation of the health insurance market (by whatever means) or otherwise, which have as their object or effect the favouring of the coverage by the undertakings of the health insurance risk of the more healthy, including the young, over the coverage of the health insurance risk of the less healthy, including the old.


(2) A registered undertaking shall not engage in a practice, or effect an agreement (including a health insurance contract), which has as its object or effect (whether in whole or in part) the avoidance of the achievement of the principle objective.”

2. Pursuant to s. 2(1) of the Act of 1994:-

“Health benefits undertaking” is defined as meaning “a person (including a body established under the laws of a place outside the State) carrying on health insurance business”.

“Health insurance business” is defined as meaning “the business of effecting health insurance contracts”.

“Health insurance contract” is defined as meaning “a contract of insurance, or any other insurance arrangement, the purpose or one of the purposes of which is to provide for the making of payments by an undertaking, whether or not in conjunction with other payments, specifically for the reimbursement or discharge in whole or in part of fees or charges in respect of the provision of hospital in-patient services or relevant health services but does not include:–


(d) A contract of insurance, or any other insurance arrangement, the purpose of which is to provide for the making of payments specifically for the reimbursement or discharge of fees or charges in respect of the provision of hospital in-patient services or relevant health services to persons or any dependants of any of them and one of the following conditions is satisfied-
(i) neither the said persons nor any such dependents are ordinarily resident in the State, or

(ii) where any of the persons to whom the said contract or arrangement relates are temporarily resident in the State during the subsistence of the said contract or arrangement-


(1) those persons are so resident solely for the purpose of carrying out their duties as employees, and

(2) those persons constitute not more than-

(A) 20% of the total number of persons (other than dependents of them) to whom the said contract or arrangement relates, and

(B) 20 of the total number of persons employed in the State by the one person.”

3. Section 4 of the Act of 1994 imposes criminal liability on any person who contravenes a provision of the Act.

4. Sections 7, 8, 9 and 10 of the Act of 1994 impose various obligations and restrictions on registered undertakings, which in essence amount to the principal requirements of the Act of 1994, namely community rating, open enrolment, lifetime cover and minimum benefit.

5. Section 14 of the Act of 1994 requires a Register of Health Benefits Undertakings to be established and sets out related matters in respect of becoming a registered undertaking pursuant to the Act.

6. Section 16 of the Act of 1994 provides:-

“A person other than a registered undertaking shall not carry on health insurance business”.

7. Section 18B of the Act of 1994 provides inter alia:-

“(1) [W]here the Authority is of the opinion that a person-

(a) is contravening a relevant provision, or

(b) has contravened a relevant provision in circumstances that make it likely that the contravention will continue or be repeated,

then the Authority may serve on the person a notice in writing, accompanied by a copy of this Part-

(i) stating that it is of that opinion,

(ii) specifying the relevant provision as to which it is of that opinion and the reasons why it is of that opinion,

(iii) directing the person to take such steps as are specified in the notice to remedy the contravention or, as the case may be, the matters occasioning it, and

(iv) specifying a period…within which those steps must be taken, being a period reasonable in the circumstances.

(4) The Authority may cancel an enforcement notice by notice in writing served on the person concerned.

(5) Where a person fails to take the steps specified in an enforcement notice served on the person, the Authority may, on notice to that person, apply in a summary manner to the High Court for an order requiring the person to take those steps (or to take such varied or other steps for the like purpose as may be specified in the order), and the court-


(a) may-
(i) make the order sought,

(ii) make the order sought subject to such variations to those steps as may be specified in the order, or

(iii) make the order sought subject to such other steps for the like purpose as may be specified in the order, or

(b) may dismiss the application,

and, whether paragraph (a) or (b) is applicable, may make such order as to costs as it thinks fit in respect of the application.”

8. Section 18C of the Act of 1994 provides:-

“(1) A person on whom an enforcement notice has been served may, on notice to the Authority, not later than 45 days after being so served, apply to the High Court for the cancellation of any direction specified in the notice and, on such an application, the court may-

(a) cancel the direction,

(b) confirm the direction, or

(c) vary the direction,


and, whether paragraph (a), (b) or (c) is applicable, make such order as to costs as it thinks fit in respect of the application.

(2) The decision of the High Court under this section on a direction specified in an enforcement notice shall be final save that, by leave of that court or of the Supreme Court, an appeal by the Authority or the person concerned, as the case may be, from the decision shall lie to the Supreme Court on a question of law.”

9. The Respondent was established pursuant to s. 20 of the Act of 1994 and is the statutory regulator of the private health insurance market.

10. The principal functions of the Respondent are set out in s. 21(1) of the Act of 1994 as follows:-

(a) to manage and administer the Risk Equalisation Scheme;

(b) to maintain the Register of Health Benefits Undertaking and the Register of Health Insurance Contracts;

(c) to evaluate and analyse information and other returns made to it;

(d) to take such action as it considers appropriate to increase the awareness of members of the public of their rights as consumers of health insurance and of the health insurance services available to them;

(e) to advise the Minister at his or her request or on its own initiative on matters relating to the functions of the Minister under the Health Insurance Acts, the functions of the Respondent under the Health Insurance Acts and health insurance generally;

(f) without prejudice to the generality of paragraph (a), to advise the Minister either at his or her request or on its own initiate as to whether, in the opinion of the Authority, the principal objective specified in s. 1(A)(1) is being achieved to the appropriate extent, and

(g) to monitor the operation of the Health Insurance Acts and the carrying on of health insurance business and developments in relation to health insurance generally;

Section 21(2) of the Act of 1994 provides that the Respondent:-

“shall have all such powers as are necessary for or incidental to the performance of its functions.”

11. The Applicant is a UK authorised non-life insurance undertaking which carries on business in Ireland through a registered branch. The Applicant is not a registered undertaking pursuant to the Act of 1994 and accordingly is not subject to the various obligations and restrictions which are imposed on registered undertakings with the aim of achieving the four principles of private health insurance provided in the Act of 1994, namely: community rating, open enrolment, lifetime cover and minimum benefit.

12. The Applicant underwrites a type of medical insurance for non-European Economic Area students (hereinafter referred to as “non-EEA students”) and their dependents who come to Ireland to undertake an educational course of study. The Policy in question is known as the Medicover Student Personal Medical Expenses Insurance Policy (hereinafter referred to “the Medicover Policy”).

13. The Applicant contends that in underwriting such a type of medical insurance, it is not required to be a registered undertaking pursuant to the Act of 1994, as the Medicover Policy is offered exclusively to non-EEA students who it asserts are not ordinarily resident in the State and it thereby falls within the exception to the definition of “health insurance contracts” provided for in s. 2(1)(d)(i) of the Act of 1994.

14. In order to obtain immigration permission to enter and remain in the State for the purpose of attending an educational course, a non-EEA student, is required to establish amongst other matters that he/she can pay for the course and support themselves without availing of any State benefits and that he/she has private medical insurance at the time of registration with the Irish Naturalisation and Immigration Services (INIS). At every subsequent registration, he/she is required to have proof that he/she was in possession of private medical insurance for all the previous registration periods. Travel insurance in not sufficient.

15. A non-EEA student’s permission to remain and study within the State is valid for up to 12 months and must be renewed before the expiry date should the non-EEA student wish to remain longer in the State. The maximum length of time which a non-EEA student may be given permission to study in the State is seven years with limited exceptions.

16. It is to such students that the Applicant provides medical insurance under the Medicover Policy referred to above. While this is a policy which extends for twelve months, Counsel for the Applicant accepted, in the course of the hearing, that the Applicant provides renewal of the Medicover Policy to students requiring further medical cover insurance whilst remaining within the State engaged on a longer course of study. Accordingly, the Applicant does not restrict itself to providing medical cover insurance to non-EEA students for a single year.

17. In July 2011, the Respondent wrote to the Applicant referring to the Medicover Policy. It requested the Applicant to explain why it did not need to be registered with the Respondent under the Act of 1994. The Applicant responded by explaining that the insurance cover was limited to foreign students, or their dependents, who are ordinarily resident outside the EEA and who are visiting Ireland for the purpose of attending an educational course. It indicated that it was its understanding that the provision of insurance of this nature did not require it to be registered with the Respondent.

18. No further correspondence ensued between the parties until June 2016 when the Respondent again corresponded with the Applicant referring to the Medicover Policy and asking the Applicant to explain why the Applicant believed that it was not required to be a registered undertaking with the Respondent.

19. Arising therefrom, considerable correspondence was engaged in between the parties wherein the meaning of “ordinarily resident in the State” within the context of the Act of 1994 was discussed in detail. I do not propose setting out the terms of that correspondence.

20. By letter dated 9th December 2016, the Respondent informed the Applicant that it was the Respondent’s view that the Medicover Policy amounted to a health insurance contract within the meaning of the Act of 1994; that the Respondent interpreted the term “ordinarily resident” in s.2(1)(d)(i) of the Act of 1994:-

“as being, in respect of non-EEA students, where they are attending a course of study in the State of more than one academic year’s duration”.

Accordingly, the Respondent requested the Applicant to restrict the offer of its Medicover Policy to non-EEA students who attend a course of one academic year’s duration or less.

21. On 12th January 2017, the Respondent served an Enforcement Notice on the Applicant pursuant to s. 18B of the Act of 1994. On foot of objections from the Applicant, the Respondent cancelled this Enforcement Notice by letter dated 22nd February 2017. It stated therein:-

“The cancellation of the Enforcement Notice is without prejudice to the entitlement of the Authority to issue a new Enforcement Notice to ACE in accordance with section 18B.

The Authority remains of the view that the [Medicover Policy] does not fall within the scope of the exception of the definition of “health insurance contract” provided in section 2(1)(d)(i) of the Health Insurance Acts, which applies where neither the insured nor any dependents are ordinarily resident in the State.

We refer you to the Press Release issued on 25th January 2017 on behalf of the Authority concerning health insurance and non-EEA students studying in Ireland… which sets out the Authority’s determination that “ordinarily resident in the State” in respect of non-EEA students means students attending a course of study of more than one academic year’s duration.

Please confirm …that ACE will amend the terms and conditions of the [Medicover Policy] so as to limit its availability to non-EEA students undertaking a course of study in Ireland of not more than one academic year’s duration, or alternatively, that ACE will apply to become a registered undertaking within the meaning of the Health Insurance Acts.

In the absence of such confirmation, the Authority reserves the entitlement to issue an Enforcement Notice in accordance with section 18B of the Health Insurance Acts ”

22. In the meantime, on 25th January 2017, the Respondent published on its website, as referred to above, a press release concerning health insurance and non-EEA students studying in Ireland. It stated therein:-

“The HIA has determined that “ordinarily resident” in the State in respect of non-EEA students means attending a course of study of more than one academic year’s duration.”

23. On 20th March 2017, the Respondent served another Enforcement Notice on the Applicant notifying it that the Respondent was of the opinion that the Applicant was contravening s. 16 of the Health Insurance Acts by offering for sale its Medicover Policy to non-EEA students attending a course of study in Ireland of more than one academic year’s duration. It directed the Applicant to restrict the availability of the Medicover Policy to non-EEA students attending a course of study in Ireland of not more than one academic year’s duration or to become a registered undertaking.

24. Pursuant to s. 18C of the Act of 1994, the Applicant instituted separate proceedings to these proceedings seeking to have the direction contained in the aforementioned Enforcement Notice cancelled. The challenge to the Enforcement Notice in those proceedings is twofold: the Applicant challenged the Respondent’s interpretation of the phrase “ordinarily resident in the State” within the meaning of s. 2(1)(d)(i) of the Act of 1994 and claimed that the Respondent failed to comply with the statutory requirements set out in s. 18B of the Act of 1994.

25. However, the Applicant also instituted these proceedings seeking orders of certiorari, together with declaratory relief, quashing the determination of the Respondent that a non-EEA student is ordinarily resident in the State within the meaning of s. 2(1)(d)(i) of the Act of 1994 in circumstances where he/she is attending a course of study in Ireland which is longer than one academic year’s duration; quashing the determination of the Respondent that the Applicant is contravening s. 16 of the Act of 1994 by the sale of the Medicover Policy where its terms and conditions do not restrict its availability to non-EEA students attending a course of study in Ireland of not more than one academic year’s duration; and quashing the Enforcement Notice dated 20th March 2017.

26. The Respondent objects, on a preliminary basis, to the Applicant being able to maintain these proceedings on the basis that s. 18C of the Act of 1994 provides a review process of any directions issued by the Respondent on foot of an Enforcement Notice; that the Applicant is out of time to bring these proceedings; and that the Applicant is estopped from maintaining these proceedings.
27. Section 18C of the Act of 1994 permits a person on whom an enforcement notice has been served to apply to this Court for a cancellation of any direction specified in the notice. On such an application, the court may cancel, confirm or vary the direction. The Applicant asserts that this review procedure is not sufficient to permit it challenge the determinations of the Respondent which grounded the Enforcement Notice and the Enforcement Notice itself. It points to the fact that the challenge provided for in s. 18C only applies in respect of the directions issued by the Respondent on foot of an enforcement notice.

28. The Respondent argues against this proposition, submitting that the review procedure provided by s. 18C is the appropriate procedure to deal with any legal issues which arise from the enforcement notice procedure. The Court was referred to the State (Abenglen Properties) v. Corporation of Dublin [1984] IT 381 and Koczan v. Financial Service Ombudsman [2010] IEHC 107 to establish this point.

29. I am of the opinion that, in principle, an effected party is not prohibited from launching a Judicial Review application to challenge the relevant determinations of the Respondent and an enforcement notice, should an appropriate challenge exist which cannot be dealt with under the s.18C review mechanism. I agree with the Applicant, that the review procedure pursuant to s. 18C of the Act of 1994 is a limited one which does not have the effect of challenging such matters.

30. However, I am also of the view that for Judicial Review proceedings to be sustainable in respect of these matters, the complaints made should not be amenable to review pursuant to the s. 18C procedure.

31. In light of the findings made by this Court in the related s. 18C proceedings, the reliefs sought by the Applicant in respect of the determinations of the Respondent do not arise for consideration.

32. Accordingly, that leaves for consideration, a small number of reliefs sought by the Applicant in relation to the Enforcement Notice.

33. The argument that the Applicant was out of time to institute Judicial Review proceedings challenging the Enforcement Notice was properly abandoned by Counsel for the Respondent at the hearing of the action.

34. The Respondent asserts that the Applicant is estopped from maintaining the Judicial Review proceedings because it elected not to launch such proceedings on foot of the notification to it by the Respondent of its position regarding the meaning of “ordinarily resident”. Having decided that Judicial Review is an available option to the Applicant, in limited circumstances, I find no merit in this argument.
35. While I have found that in principle Judicial Review proceedings can be brought to challenge an enforcement notice issued by the Respondent, the grounds of the challenge must be on a basis which could not have been addressed by utilising the review procedure provided for in s. 18C of the Act of 1994. I will therefore only consider the separate grounds which were not raised and considered in the course of the s. 18C proceedings.
36. The Applicant asserts that there is no evidence of a determination taken by the Respondent to ground the Enforcement Notice issued on 20th March 2017. It refers to the terms of s. 18B of the Act of 1994 in this regard which permits the Respondent to issue an enforcement notice when it is of the opinion that an entity is or has contravened a relevant provision of the Act of 1994.

37. Clearly the Respondent came to a decision regarding its view of the meaning of ordinarily resident having engaged in considerable correspondence with the Applicant. It also obviously came to a view that the Applicant was in contravention of s. 16 of the Act of 1994. On foot of same, an enforcement notice issued on 12th January 2017 which the Respondent later accepted was invalid. When accepting the invalidity of this enforcement notice, the Respondent did so without prejudice to its entitlement to issue another enforcement notice, noting that it remained of the view that the Medicover Policy did not fall within the exception to “health insurance contract” within the meaning of s. 2(1)(d)(i) of the Act of 1994.

38. There was no necessity for the Respondent to again make it determinations regarding the Applicant’s contravention of s. 16 of the Act of 1994. Indeed, the withdrawal of the first enforcement notice was without prejudice to that determination.

39. Accordingly, I find no merit in this argument.

40. Arising from the correspondence had with the Respondent in July 2011, the Applicant asserts that it had a legitimate expectation that an enforcement notice would not be served on it in relation to this matter. In July 2011, the Respondent queried the Applicant as to why it was not registered with it in relation to the Medicover Policy. Having explained the type of students it was providing the policy to, the Applicant stated that it was its understanding that such students were not ordinarily resident within the state. The Respondent did nothing further in relation to this correspondence until June 2016 when it again raised the issue with the Applicant. Particularly, the Respondent did not provide an acknowledgment regarding the Applicant’s understanding. It is asserted on the Respondent’s behalf that it accepted what the Applicant said. However, it began an investigation into the issue when the matter was brought to its attention again in 2016. On the basis of the factual matrix, I cannot see how the Applicant can assert that it had a legitimate expectation that the Respondent would not come to a different view to it. Nothing was confirmed to the Applicant by way of direct or implicit assertion. The Applicant did not act to its detriment, it just continued to act as it had been doing. Accordingly, no basis exists for this claim.
41. The Applicant submits that the Respondent is in breach of Article 15.2.1 of the Constitution and has engaged in a legislative function by determining and imposing its view of what “ordinarily resident in the State” means.

42. This argument mirrors the argument made by the Applicant in the s. 18C proceedings to the effect that that the Respondent is not permitted to determine the meaning of “ordinarily resident” in a general way. For the reasons which I set out in the s. 18C proceedings when I considered that issue, I am of the view that the Respondent has not engaged in a legislative function but rather has set out the factual circumstances which will give rise to a non-EEA student being considered by it to be ordinarily resident in the State. The respondent has not purported to legislate in the matter.

43. In the course of the hearing, Counsel for the Applicant complained that the Respondent had acted with a lack candour in its conduct of the proceedings. I am not going to consider the arguments made in relation to this issue. Having regard to the issues which I have had to consider, this claim did not have an effect on my determinations.
44. The remainder of the reliefs sought by the Applicant have been raised and considered in the course of the s. 18C proceedings and accordingly were inappropriate to have been raised in these judicial review proceedings particularly when the s. 18C review procedure was also being pursued at the time.

45. I therefore refuse to grant the relief sought.