Judgments - Regina v. Secretary of State for Work and Pensions (Respondent) ex parte Carson (Appellant) Regina v. Secretary of State for Work and Pensions (Respondent) ex parte Reynolds (FC) (Appellant)

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    62.  This passage has attracted a good deal of comment. In his first-instance judgment in Mrs Carson's case, Stanley Burnton J pointed out [2002] 3 All ER 994, 1009, para 51 that there is a fifth question to be asked, that is whether the different treatment of the complainant was on a prohibited ground. In Ghaidan v Godin-Mendoza [2004] 2 AC 557, 605, para 134, Baroness Hale of Richmond described the questions as a useful tool of analysis, but as having a considerable overlap between them. The overlap was also noted by Mance LJ in Nasser v United Bank of Kuwait [2002] 1 WLR 1868, 1883, para 56. In Michalak itself, Brooke LJ acknowledged [2003] 1 WLR 617, 625, para 22 that there may sometimes:

    ". . . be a need for caution about treating the four questions as a series of hurdles, to be surmounted in turn."

    63.  One of the most powerful criticisms of a rigid, step by step approach based on comparators is, if I may respectfully say so, in the speech of my noble and learned friend Lord Nicholls of Birkenhead in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337. That was a case under the Sex Discrimination (Northern Ireland) Order 1976 (SI 1976/1042) and this House had to grapple with the statutory definition of discrimination. Lord Nicholls demonstrated that a step by step approach was liable to obscure the real issue in the case, which was why the complainant had been treated as she had been treated. Until that question was answered, it was impossible to focus properly on the question of comparators. Lord Nicholls observed (p 341, para 8) that:

    " … sequential analysis may give rise to needless problems."

    He also observed (p 342, para 11) that:

    "employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others."

    Lord Rodger of Earlsferry (p 377, para 125) agreed with Lord Nicholls on these points. So do I, and I think that Lord Nicholls' observations are even more apposite to the more open-textured language of article 14.

    64.  My Lords, I think the time has come to say that in cases on article 14, the Michalak catechism, even in a corrected form, is not always the best approach. When the United Kingdom first enacted legislation against discrimination on grounds of sex or race, over 20 years before the Human Rights Act 1998, it was natural that Parliament felt bound to provide detailed definitions of discrimination suitable for statutes of a penal character. The definitions in the Sex Discrimination Act 1975 and the Race Relations Act 1976 are far removed from the broad sweep of language appropriate to a human rights instrument. Inevitably they gave rise to much learning on the subject of "comparators."

    65.  The Strasbourg jurisprudence, by contrast, has made little direct use of comparators. The approach of the European Court of Human Rights has been described as follows by Professor David Feldman, Civil Liberties and Human Rights in England and Wales, 2nd ed (2002), p 144:

    "The way the court approaches it is not to look for identity of position between different cases, but to ask whether the applicant and the people who are treated differently are in 'analogous' situations. This will to some extent depend on whether there is an objective and reasonable justification for the difference in treatment, which overlaps with the questions about the acceptability of the ground and the justifiability of the difference in treatment. That is why, as van Dijk and van Hoof observe, and 'in most instances of the Strasbourg case law . . . the comparability test is glossed over, and the emphasis is (almost) completely on the justification test'. However, there are occasions on which the court has rejected applications under article 14 purely on the ground that the applicant has provided no evidence that the people who were treated differently had been in analogous situations, or because the comparators are not genuinely in analogous positions."

    66.  The footnotes to the last sentence of this passage refer to (among other cases) Van der Mussele v Belgium (1983) 6 EHRR 163 and Johnston v Ireland (1986) 9 EHRR 203. These cases, although to some extent exceptions to the general approach, are instructive. Under Belgian law every judicial district's Order of Advocates is under an obligation to provide legal assistance to those who need it. Mr Van der Mussele, a pupil advocate, was required to represent a man accused of theft and drug-dealing. He complained of having been required to put in about 18 hours unpaid work on that case, and many more hours for very little remuneration on other cases. He made his complaint under article 4 (forced labour) both on its own and in conjunction with article 14. These complaints were unanimously rejected. The applicant had relied on the fact that in Belgium, doctors, veterinary surgeons, pharmacists and dentists are not required to provide free services to the poor. The court observed, 6 EHRR 163, 179-180, para 46:

    "Article 14 safeguards individuals, placed in analogous situations, from discrimination. Yet between the Bar and the various professions cited by the applicant, including even the judicial and parajudicial professions, there exist fundamental differences to which the Government and the majority of the Commission rightly drew attention, namely differences as to legal status, conditions for entry to the profession, the nature of the function involved, the manner of exercise of those functions, etc. The evidence before the court does not disclose any similarity between the disparate situations in question: each one is characterised by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect."

    67.  In Johnston v Ireland 9 EHRR 203, the first and second applicants were an unmarried couple who could not marry, and so legitimate their daughter, the third applicant, because the Irish Constitution did not permit divorce. The first and second applicants relied on article 14 in conjunction with article 8, arguing that they had been discriminated against on grounds of their limited financial means, since (had they been better off) they could have obtained a divorce by the expedient of a spell of residence outside the Republic. This rather optimistic complaint was therefore in a sense based on residence (or domicile). It was rejected in short measure, 9 EHRR 203, 221, para 60:

    "Article 14 safeguards persons who are 'placed in analogous situations' against discriminatory differences of treatment in the exercise of the rights and freedoms recognised by the Convention. The court notes that under the general Irish rules of private international law foreign divorces will be recognised in Ireland only if they have been obtained by persons domiciled abroad. It does not find it to have been established that these rules are departed from in practice. In its view, the situations of such persons and of the first and second applicants cannot be regarded as analogous."

    68.  In these cases (and numerous other cases in which there is even less discussion of the meaning of "analogous situations") the European Court of Human Rights was, without any elaborate analysis or discussion of comparators, reaching an overall conclusion as to whether in the enjoyment of Convention rights there had been unfair and unjustifiable discrimination on the grounds of some personal characteristic. This assessment calls for a process of judicial evaluation which must be sensitive to the factual context. Some analogies are close, others are more distant. As Brooke LJ recognised [2003] 1 WLR 617, 625, para 22, the evaluation process may not be assisted by setting out standard questions "as a series of hurdles, to be surmounted in turn."

    69.  It is sometimes suggested (and this may have influenced the shape of Mr Howell's submissions on these appeals) that a structural, step by step approach is necessary because of considerations of burden of proof: if the state gets to the last ditch of justification, it must discharge that burden. That is a material consideration in some cases but I venture to think that its importance may have been exaggerated. It seems to have caused little concern at Strasbourg. Although the phrase "burden of proof" is often used, the court (whether here or in Strasbourg) is in these cases concerned mainly with a broad evaluation of competing private and public interests, and rarely has to make a detailed assessment of the credibility and cogency of factual evidence (see on this point the observations of my noble and learned friend Lord Nicholls of Birkenhead in R (Williamson) v Secretary of State for Education and Employment [2005] 2 WLR 590, 604, para 47). In the present appeals the parties have placed before the House quite a lot of written material and it has been of considerable assistance, especially in the case of Ms Reynolds, in explaining some of the policy considerations underlying the social security legislation. But I doubt whether your Lordships would, in the absence of any such material, have reached a different conclusion on either appeal.

    70.  I would not, however, wish to suggest that there are not some circumstances in which justification must be considered as a separate issue. The clearest case, mentioned by my noble and learned friend, Lord Hoffmann in his opinion, is that of "positive discrimination," in which a category of disadvantaged persons is accorded specially favourable treatment (and others are correspondingly worse treated) precisely because of some personal characteristic (such as race or gender) of the preferred group. That personal characteristic obviously cannot be taken into account as a relevant difference negativing "analogous circumstances"; positive discrimination must be justified, if at all, for reasons which focus on (and as it were make a virtue of) what would otherwise be a proscribed ground. That possibility has been recognised in the Strasbourg jurisprudence since the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, 284, para 10, in which the court observed that "certain legal inequalities tend only to correct factual inequalities."

Mrs Carson's appeal

    71.  I have already outlined the facts of Mrs Carson's case. While she was working in the United Kingdom (at some times in employment and at other times self-employed) she (and her employer, when she had one) made contributions towards statutory retirement benefits. After she moved to South Africa in 1990, when she was 50, she continued to pay voluntary contributions towards her retirement benefits. In 2000 she became entitled to a pension at the rate of £103.62 a week (consisting of a basic pension of £67.50 a week and further earnings-related benefits), but it has remained frozen at that level because of her non-residence. It is easy to understand Mrs Carson's dissatisfaction at this state of affairs. But it is not suggested that she was in any way misled about what her entitlement would be.

    72.  The freezing of the pensions of Mrs Carson, and the numerous non-resident pensioners in the same position as Mrs Carson (they number nearly half a million people) results from the interaction of some provisions of primary and secondary legislation, that is section 113(1)(a) of the Social Security Contributions and Benefits Act 1992, regulations 4(1) and 5 of the Social Security Benefit (Persons Abroad) Regulations 1975 and regulation 3 of the Social Security Benefits (Up-Rating) Regulations 2001 (which in effect repeat regulation 5 of the 1975 Regulations). The 2001 Regulations were made under and in accordance with section 150 of the Social Security Administration Act 1992, which provides (in sub-section (1)) for up-rating by reference to "the general level of prices obtaining in Great Britain."

    73.  By section 179 of the Social Security Administration Act 1992, Her Majesty may by Order in Council modify the social security legislation as it applies in cases covered by a bilateral agreement with another state for reciprocity of social security benefits. Some bilateral agreements provide for reciprocal up-rating of benefits. There is no such agreement with South Africa. Mr Howell emphasised in his submissions that the fact that states may enter into bilateral agreements builds on, and could not exist without, the more basic proposition that in international law a state is free, if it thinks fit, to provide social security benefits only for its own residents.

    74.  It is common ground that entitlement to a pension under a contributory state scheme is included in a person's "possessions" for the purpose of article 1 of the First Protocol (see Gaygusuz v Austria (1997) 23 EHRR 364; Wessels-Bergervoet v Netherlands (2004) 38 EHRR 793). It is also common ground that Mrs Carson's retirement pension should be classified as contributory for this purpose, although the parties emphasised different aspects of its contributory character. Mr Blake (for Mrs Carson) emphasised Mrs Carson's satisfactory contributions record, including the 10 years of voluntary contributions which she had made from South Africa. Mr Howell emphasised that contributions are not based on any assumption of prospective up-rating; that national insurance contributions go (in part) towards the general costs of the National Health Service; and that the whole social security system has important elements of social solidarity (in other words, a redistributive effect).

    75.  Mrs Carson does not complain of being deprived of any of her possessions as a straight violation of article 1 of the First Protocol. The Commission has often dismissed such claims (see J W v United Kingdom (1983) 34 DR 153 and Corner v United Kingdom (unreported), 17 May 1985 (App No 11271/84) following Müller v Austria (1975) 3 DR 25). Her complaint is made under article 1 of the First Protocol in conjunction with article 14.

    76.  At first instance Stanley Burnton J held that Mrs Carson was not in a situation analogous to a person living in the United Kingdom, or in some other country with a bilateral agreement: [2002] 3 All ER 994, 1012, para 65:

    "It seems to me that the comparison between the positions of persons living in different countries, in different social and economic circumstances, and under different tax and social security regimes, is complex, and cannot simply be restricted to a comparison of the sterling amounts of their United Kingdom pensions."

    He also held that there was, if needed, objective and reasonable justification: p 1014, para 73:

    "The government has decided that uprated pensions are to be confined to those living in this country or living in certain other countries. It seems to me that a government may lawfully decide to restrict the payment of benefits of any kind to those who are within its territorial jurisdiction, leaving the care and support of those who live elsewhere to the governments of the countries in which they live. Such a restriction may be based wholly or partly on considerations of cost, but having regard to the wide margin of discretion that must be accorded to the government, I do not think it one that a court may say is unreasonable or lacking in objective justification."

    77.  In the Court of Appeal, Laws LJ (with whom Simon Brown and Rix LJJ agreed) took a rather different line about comparators but reached essentially the same conclusions. As to comparators he said [2003] 3 All ER 577, 604, para 63:

    "In my judgment, the circumstances of Ms Carson and her chosen comparators are not so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the withholding of the pension uprate in the cases where it is withheld. I arrive at this conclusion in [the] light of all the factors discussed by Stanley Burnton J (at [61]-[65]). And if the right question is not the compendious one which I have ventured to suggest, but (more conventionally) whether the comparators put forward by Mr Drabble are in an analogous position to that of Ms Carson, I consider that Stanley Burnton J gave the right answer."

    I would add that in my view the "compendious question" which Laws LJ proposed (p 604, para 61) in place of the Michalak question (iii) is not without its attractions, but it is open to the objections mentioned by Lord Hoffmann in his opinion.

    78.  As to justification, Laws LJ quoted from the speech of my noble and learned friend Lord Hoffmann in R (ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185, 240, para 75 and observed [2003] 3 All ER 577, 608, para 73:

    "in any particular area the decision-making power of this or that branch of government may be greater or smaller, and where the power is possessed by the legislature or executive, the role of the courts to constrain its exercise may correspondingly be smaller or greater. In the field of what may be called macro-economic policy, certainly including the distribution of public funds upon retirement pensions, the decision-making power of the elected arms of government is all but at its greatest, and the constraining role of the courts, absent a florid violation by government of established legal principles, is correspondingly modest. I conceive this approach to be wholly in line with our responsibilities under the Human Rights Act 1998. In general terms I think it reflects a recurrent theme of the Strasbourg jurisprudence, the search for a fair balance between the demands of the general interest of the community and the protection of individual rights: see Sporrong v Sweden (1982) 5 EHRR 35."

    Laws LJ also cited well-known passages from the judgment of the European Court of Human Rights in James v United Kingdom (1986) 8 EHRR 123, 142, para 46, and from the speech of Lord Hope of Craighead in R v Director of Public Prosecutions, Ex p Kebeline [2000] 2 AC 326, 381.

    79.  In your Lordships' House Mr Blake has assailed all these conclusions. He has urged that the issue of comparators ought to be a very short question, a matter of impression, and that it is a sort of threshold test. I would not accept that it should be regarded as a threshold test. I would accept, for reasons already mentioned, that it is sometimes a matter of impression which does not profit from elaborate analysis. But I do not think that that helps the appellant in this case. I share the clearly-expressed views of the courts below that Mrs Carson was not in a situation sufficiently analogous to that of a pensioner resident in the United Kingdom or in a country which has the benefit of a bilateral agreement.

    80.  Nor can I accept Mr Blake's criticism of the conclusions of the lower courts on the issue of justification. This is an issue of macro-economic policy which is eminently within the province of the legislature and the executive. I would dismiss Mrs Carson's appeal.

Ms Reynolds' appeal

    81.  I have already summarised most of the facts relevant to Ms Reynolds' appeal. While she was under 25 and before the birth of her son she received jobseeker's allowance and income support at the weekly rate of £41.35, whereas had she attained the age of 25 she would have received £52.20. This was the effect of sections 124 (4), 135 (1) and 137 (1) of the Social Security Contributions and Benefits Act 1992, Regulation 17 (1) of and Schedule 2 to the Income Support (General) Regulations 1987, section 4 of the Jobseekers Act 1995 and Regulation 79 of the Jobseeker's Allowance Regulations 1996. The type of jobseeker's allowance to which Ms Reynolds was entitled (sometimes referred to as "JSA (C)" is contribution-based. Income support is a non-contributory, means-tested benefit.

    82.  Throughout the period of about eight months to which her claim relates Ms Reynolds was living alone in a one-room council flat in Bilston, West Midlands. She received other benefits, that is housing benefit and council tax benefit, and (during the last three months of her pregnancy) maternity allowance. Nevertheless Ms Reynolds' case (which the Secretary of State does not accept in all respects) is that she suffered severe hardship, partly because of her high expenditure on gas and electricity for the flat, and partly because she had to spend £10 a week in repaying a loan which she had obtained in order to furnish the flat.

    83.  The first issue on the appeal was agreed to be whether entitlement to income support (a non-contributory benefit) is included in a person's "possessions" for the purpose of article 1 of the First Protocol (the Secretary of State accepts that JCA (C) falls within the ambit of that article). Ms Reynolds wishes to rely on article 1 of the First Protocol, in conjunction with article 14, in relation to both jobseeker's allowance and income support; alternatively, she wishes in relation to both benefits (but especially in relation to income support) to rely on article 8 of the Convention in conjunction with article 14.

    84.  Strasbourg jurisprudence on the status of non-contributory social security benefits is at present in the melting-pot. The Grand Chamber has very recently held an oral hearing (but is unlikely to give judgment for some time) in an important case raising that issue, Hepple and others v United Kingdom. Your Lordships considered that it was not necessary in order to dispose of this appeal, and that it might prove unproductive, to go into this complex issue while the judgment of the Grand Chamber in Hepple is pending. The House has therefore proceeded on the assumption, without deciding, that both Ms Reynolds' benefits should be regarded as within the ambit of article 1 of the First Protocol. Her case under article 8 in conjunction with article 14 does not appear to add anything to her case under article 1 of the First Protocol in conjunction with article 14.

    85.  At first instance, Wilson J considered this claim in paras 23-34 of his judgment. He cited the same passages from James v United Kingdom, 8 EHRR 123, 142, para 46 and Ex p Kebeline [2000] 2 AC 261, 381, as were later cited by Laws LJ in the Court of Appeal. Wilson J then observed (para 28):

    "In the light of the above guidance I regard it as unnecessary, indeed inappropriate, for me to address the arguments presented by the [Secretary of State] by way of justification for the demarcation with a degree of detail into which, drawing upon a statement of an eminent statistician as well as a host of other material, Mr Gill would have me descend. Indeed, as his enthusiastic argument proceeded, I increasingly sensed the incongruity that such a debate was proceeding in court instead of in Parliament. The [Secretary of State] accepts that the appropriateness of the demarcation is a subject on which views may reasonably differ but articulates five considerations of policy which allegedly justify it."

    86.  The policy considerations on which the Secretary of State relied were summarised as follows in a witness statement by Mr Bruce Taylor, an official in the Department of Work and Pensions:

    "(1)  People in the 18-24 age-group in general earn less than those 25 or over, and may legitimately be regarded as having lower earnings expectations.

    (2)  The majority of those 18-24 do not live independently and may legitimately be regarded as having lower living costs than the group of claimants aged 25 or over.

    (3)  The payment of lower rates of JSA and IS to those between 18-24 may be expected to have the effect of discouraging them from living independently, and encouraging them to live together with others, notably parents or other family members, which may be seen to have wider social benefits.

    (4)  Other aspects of the social security system serve to prevent any resultant hardship to the minority of persons in the position which was that of the claimant who are aged between 18-24 and do live independently.

    (5)  It is important from the point of view of good administration for the social security system to be based upon clear, easily applicable rules, rather than attempting to cater for the individual situation of every claimant."

    Mr Taylor then enlarged on these five points, and the judge commented on them in paras 29-33 (inclusive) of his judgment. The judge concluded (para 34) that although the onus of establishing justification was on the Secretary of State, he had placed before the court material which conclusively demonstrated that the demarcation at age 25 embodied in the Regulations was not "manifestly without reasonable foundation" (language echoing the European Court of Human Rights in James in the passage which he and Laws LJ cited).

    87.  In his submissions on behalf of the Secretary of State, Mr Howell added a significant footnote to the point about the need for clear, easily applicable rules. Before the structural reforms of social security benefits in the late 1980's the social security system did draw a distinction between "householders" and "non-householders", in order to recognise that some persons entitled to income support would have responsibilities for housing costs (such as rent and rates) which did not fall on other claimants. But as the White Paper Reform of Social Security (1985 Cmnd 9691) pointed out (para 2.34),

    ". . . the increase of shared housing arrangements makes the existing rules (with their connotation of a clearly identifiable head of the household) increasingly difficult to administer."

    The distinction led to disputes which reached the social security appeal system and, in some cases, the court. There were therefore sound reasons, in the interests of good administration, for providing for housing costs by other, more selective benefits (principally housing benefit and council tax benefit, both of which Ms Reynolds received).

    88.  In the Court of Appeal Laws LJ considered that in the case of Ms Reynolds a rational and fair-minded person would give an affirmative answer to his "compendious question" as to the need for a positive justification of the less favourable treatment of a claimant under 25. But he added [2003] 3 All ER 577, 608, para 75,

    "However, the depth of the justification required, the reach of the court's scrutiny of what is advanced by way of justification, is quite another matter."

 
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