Judgments - R (On The Application of Rjm) (Fc) V Secretary of State For Work and Pensions Appellate

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30.  Under the heading “The approach to be applied henceforth", the ECtHR set out its reasoning on the issue. The whole of the ensuing paras 46 to 55 repays study, but I have tried to limit my citation to the essential reasoning for present purposes:

“47. … [I]n its case law on the applicability of art 6(1), the court originally held that claims regarding only welfare benefits which formed part of contributory schemes were … sufficiently personal and economic to constitute the subject-matter of disputes for ‘the determination of civil rights’… . However, in the Salesi v Italy judgment (1998) 26 EHRR 187, art 6(1) was held also to apply to a dispute over entitlement to a non-contributory welfare benefit … .

48. It is in the interests of the coherence of the Convention as a whole that the … concept of ‘possessions’ in [A1P1] should be interpreted in a way which is consistent with the concept of pecuniary rights under art 6(1). It is moreover important to adopt an interpretation of [A1P1] which avoids inequalities of treatment based on distinctions which, at the present day, appear illogical or unsustainable.

49. …Given the variety of funding methods, and the interlocking nature of benefits under most welfare systems, it appears increasingly artificial to hold that only benefits financed by contributions to a specific fund fall within the scope of [A1P1]. Moreover, to exclude benefits paid for out of general taxation would be to disregard the fact that many claimants under this latter type of system also contribute to its financing… .

50. … Many domestic legal systems recognise that [some] individuals require a degree of certainty and security, and provide for benefits to be paid - subject to the fulfilment of the conditions of eligibility - as of right. Where an individual has an assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding [A1P1] to be applicable. …

52. … If any distinction can still be said to exist in the case law between contributory and non-contributory benefits for the purposes of the applicability of [A1P1], there is no ground to justify the continued drawing of such a distinction.

53. It must, nonetheless, be emphasised that the principles, most recently summarised in Kopecky …[GC] … at [35] which apply generally in cases under [A1P1], are equally relevant when it comes to welfare benefits. …

54. In cases, such as the present, concerning a complaint under art 14 in conjunction with [A1P1] that the applicant has been denied all or part of particular benefit on a discriminatory ground covered by art 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question … . Although [A1P1] does not include the right to receive a social security payment of any kind, if a state does decide to create a benefits scheme, it must do so in a manner which is compatible with art 14.”

31.  Mr Howell argues that your Lordships should not follow this reasoning, and he invites us, instead, to remain faithful to the principle enshrined in cases such as Kopecky 41 EHRR 944 and von Maltzan 42 EHRR SE92. I do not consider that your Lordships should accept that invitation. I recognise that the admissibility decision in Stec represents a departure from the principle normally applied to claims which rely on A1P1. However, Stec 41 EHRR SE295 was a carefully considered decision, in which the relevant authorities and principles were fully canvassed, and where the Grand Chamber of the ECtHR came to a clear conclusion, which was expressly intended to be generally applied by national courts. Accordingly, it seems to me that it would require the most exceptional circumstances before any national court should refuse to apply the decision.

32.  I do not consider that any exceptional circumstances can fairly be said to arise here. It may well be that the conclusion in Stec 41 EHRR SE295 was founded more on broad policy than strict logic, but it is by no means exceptional, for the ECtHR to found a decision on such a basis. It is not as if there is any subsequent decision of the ECtHR which casts doubt on the reasoning in Stec 41 EHRR SE295. The decision in von Maltzan 42 EHRR SE92 came later, but it did not concern social welfare payments. Stec 41 EHRR SE295 was expressly distinguished (and therefore not doubted) in Associazione Nazionale Reduci dalla Prigionia dall'Internamento e dalla Guerra di Liberazione v Germany (2008) 46 EHRR SE11, para 77, on the grounds that what was involved in that case was “a one-off payment granted as compensation for events which occurred even before the Convention came into force” which was therefore “outside the framework of social security legislation” and could not be “likened to the payments in Stec“.

33.  Mr Howell, to my mind realistically, accepted that it was illogical to distinguish between funded social welfare payments (as in Gaygusuz 23 EHRR 364) and unfunded social welfare payments (as in Stec 41 EHRR SE295, and in the present case). However, he argued that this justified the conclusion that neither type of such payments was within the scope of A1P1. This presents his case with a further difficulty, as it means that, in order to succeed on this point, the Secretary of State would have to persuade this House that not merely Stec (2005) 41 EHRR SE295, but also Gaygusuz 23 EHRR 364, had been, in effect, wrongly decided. In agreement with Mr Richard Drabble QC, for RJM, it seems to me inconceivable that Gaygusuz 23 EHRR 364 would not be treated as good law by the ECtHR. Although not a decision of the Grand Chamber, it has stood for well over 10 years, and has been assumed to be right in a number of subsequent cases, not least by the Grand Chamber, and indeed by the UK government, in Stec 41 EHRR SE295.

34.  In these circumstances, particularly bearing in mind this House’s obligation under section 2(1)(a) of the Human Rights Act 1998 to “take into account any … judgment .. of the European Court of Human Rights", as explained by Lord Bingham of Cornhill in para 37 of R(Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 2 WLR 781, I conclude that, as disability premium is part of the UK’s social welfare system, RJM does have a sufficient “possession” to bring his claim within A1P1. I should perhaps add that, even on the somewhat more flexible approach proposed by Lord Scott of Foscote in paras 44 and 45 of that case, I would have reached the same conclusion.

Is RJM’s homelessness a “status” for the purposes of article 14?

35.  The Secretary of State’s contention is that, in order to justify a claim under article 14, an applicant must show that he is being discriminated against on the grounds of a “personal characteristic", and that homelessness is not such a characteristic. RJM’s response is twofold. First, on analysis, the ECtHR’s jurisprudence establishes that there is no requirement that an applicant making a claim under article 14 must show that he is being discriminated against on the ground of a particular status or personal characteristic. Alternatively, if there is such a requirement, he satisfies it in this case, as homelessness is a personal characteristic.

36.  There is no doubt that your Lordships’ House has consistently proceeded in a number of cases on the assumption that an applicant who relies on article 14 must establish that the discrimination he complains of is based on a personal characteristic; in other words that “status” in article 14 should, where it is in issue, be addressed as a separate question, and should be given such a meaning. Examples include R(S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196, para 48, R(Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484, para 28, and R (Countryside Alliance) v Attorney General [2007] UKHL 52, [2008] 1 AC 719, paras 24 and 61. The approach of this House has been primarily based on the observation in para 56 of the judgment of the ECtHR in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para 56, where it was “point[ed] out” that article 14 prohibits “discriminatory treatment having as its basis or reason a personal characteristic (‘status’)".

37.  Further, there is a strong case for saying that, as a matter of language, article 14 (or at least the English version of article 14) appears to envisage precisely this, given the specific grounds on which unjustifiable discrimination is prohibited. In its recent judgment in Kafkaris v Cyprus (Application No 21906/04) (unreported) 12 February 2008, para 160, the ECtHR said that article 14:

“safeguards persons who are in analogous or relevantly similar positions against discriminatory differences in treatment that have as their basis or reason a personal characteristic (‘status’) by which persons or a group of persons are distinguishable from each other".

38.  Quite apart from this, there is no case which supports RJM’s argument to the contrary. Your Lordships were taken by Mr Drabble to a number of decisions of the ECtHR dismissing article 14 claims without deciding whether the alleged discrimination could be said to have been on the ground of a personal characteristic. However, as the claims were dismissed on other grounds (eg no comparability or no discrimination), the absence of any consideration of this point gives no assistance to the argument that it was regarded as an unnecessary component of an article 14 claim. The absence of any reference in those judgments to the need for the alleged discrimination to be on grounds of a personal characteristic is just as easily explained on the grounds that it was unnecessary to consider the point, as the claim failed on other grounds, or that the point was irrelevant as there was no dispute on that issue in the particular case.

39.  Nonetheless, it is fair to refer to the fact that the French version of article 14 (which has equal status with the English version - see article 59) ends with the words “ou toute autre situation", which may suggest a rather wider scope than “or other status". Further, while the ECtHR judgments relied on by RJM do not establish that no consideration need be given in an article 14 case to the issue of whether the discrimination is by reference to a “status” which can be characterised as a “personal characteristic", some of those judgments could be read as suggesting a rather less structured approach than that which has been adopted by this House. In particular, in an allegation of article 14 infringement, the ECtHR may not always consider whether the alleged discrimination is on the ground of “other status” as an entirely free-standing question: it sometimes appears to approach the overall allegation of infringement on a more holistic or “broad brush” basis - see, for instance, the reasoning in Kjeldsen 1 EHRR 711, para 56, and Kafkaris,12 February 2008, paras 163-165, as well as Stubbings v United Kingdom (1996) 23 EHRR 213, paras 70-73.

40.  Indeed, this was recently recognised in this House in AL (Serbia) [2008] 1 WLR 1434, para 24, where Baroness Hale of Richmond, in the course of an instructive analysis of the approach of the ECtHR to allegations of infringement of article 14, said that “the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator". Rather, she said, they “ask whether ‘differences in otherwise similar situations justify a different treatment’” (quoting from R(Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173, para 3). Similarly, as she recognised in para 25, in most ECtHR judgments in article 14 cases, “the comparability test is glossed over, and the emphasis is (almost) completely on the justification test” (quoting from Feldman on Civil Liberties and Human Rights in England and Wales, 2nd ed (2002), p 144).

41.  It is unnecessary to decide whether, and if so when, it may be appropriate in some cases not to consider the “status” issue as an entirely self-contained question. (However, having seen in draft the opinion of my noble and learned friend Lord Walker of Gestingthorpe, I agree with what he says in para 5). In any event, in the present case, I am content to adopt the approach which has been consistently taken in article 14 cases by this House, when the issue has arisen. Accordingly, it is necessary to decide whether homelessness can fairly be described as a “personal characteristic” as that expression was meant in Kjeldsen 1 EHRR 711 and in Kafkaris, 12 February 2008. In my view, it is.

42.  First, it seems clear that “a generous meaning should be given to the words ‘or other status’” - per my noble and learned friend, Lord Hope of Craighead, in Clift [2007] 1 AC 484, para 48. To similar effect, at para 4.14.21 of Lester & Pannick, Human Rights Law and Practice, 2nd ed (2004), it is stated that the ECtHR applies “a liberal approach to the ‘grounds’ upon which discrimination is prohibited". That appears to me to be entirely in accordance with the approach one would expect of any tribunal charged with enforcing anti-discrimination legislation in a democratic state in the late 20th, and early 21st, centuries.

43.  The decisions of the ECtHR as to whether the “other status” requirement of article 14 is satisfied not only support such a wide reading, but they also indicate that “other status” should not be too closely limited by the grounds which are specifically prohibited in the article. Thus, military rank, as against civilian (Engel v The Netherlands (1976) 1 EHRR 647), residence or domicile (Johnston v Ireland (1986) 9 EHRR 203), and previous employment with the KGB (Sidabras v Lithuania (2004) 42 EHRR 104) have all been held to fall within “other status” in article 14.

44.  If persons living in a certain type of home (eg flats) were treated differently from those living in another type (eg houses), that would clearly, I think, potentially fall within article 14 (cf Chassagnou v France (1999) 29 EHRR 615, para 121). That would suggest that treating homeless people differently from those with homes should also potentially fall within article 14. Mr Howell said that a case of discrimination between those who lived in flats and houses might be said to fall within article 14 on the basis that occupiers will almost always have some sort of interest in, or rights over, their homes, and hence the difference in treatment would fall within the express “property” status. He may very well be right, but it does not detract from the force of the point: if that is indeed the basis upon which article 14 would apply in such a case, then homelessness should be a status, as, unlike those with homes, the homeless neither own nor enjoy rights over any residential property.

45.  Further, while reformulations are dangerous, I consider that the concept of “personal characteristic” (not surprisingly, like the concept of status) generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him. Such a characterisation approach appears not only consistent with the natural meaning of the expression, but also with the approach of the ECtHR and of this House to the issue. Hence, in Gerger v Turkey (Application No 24919/94) (unreported) 8 July 1999, the ECtHR held there could be no breach of article 14 where the law concerned provided that “people who commit terrorist offences … will be treated less favourably with regard to automatic parole than persons convicted under the ordinary law", because “the distinction is made not between different groups of people, but between different types of offence” (para 69). It appears to me that, on this approach, homelessness is an “other status".

46.  This is also consistent with what Lord Bingham of Cornhill said at para 28 of Clift [2007] 1 AC 484, namely that he did not consider that “a personal characteristic can be defined by the differential treatment of which a person complains". I also note that, in the absence of decisions such as Gerger, 8 July 1999, he would have been “incline[d] to regard a life sentence as an acquired personal characteristic and a lifer as having an ‘other status’". On this basis, homelessness would appear to me to be a personal characteristic a fortiori, and there is no Strasbourg jurisprudence to justify a contrary conclusion.

47.  In reaching the contrary conclusion, the Court of Appeal was influenced by the fact that being homeless was a voluntary choice - see para 45. Ignoring the point that in some cases it may not be voluntary, I do not accept that the fact that a condition has been adopted by choice is of much, if any, significance in determining whether that condition is a status for the purposes of article 14. Of the specified grounds in the article, “language, religion, political or other opinion, … association with a national minority [or] property” are all frequently a matter of choice, and even “sex” can be. (And it is noteworthy that in the recent case of AL (Serbia) [2008] 1 WLR 1434, being parentless was unhesitatingly accepted as being an “other status” under article 14). In para 42, the Court of Appeal also considered that the fact that homelessness was not a legal status was a “significant but not conclusive point” against it being a “status” for article 14 purposes, but I do not consider that it is a telling point. After all, “political or other opinion” involves no legal status, and I doubt whether some of the other statuses specified in article 14 do so either. The Court of Appeal was also influenced by the fact that the ECtHR had not recognised homelessness as a status (para 37), but in no case does the issue ever appear to have been raised, so the point appears to me to be entirely neutral.

Can the discrimination be justified?

48.  Having decided that RJM has been the subject of discrimination which in principle is capable of infringing article 14, the remaining question to be addressed for the purpose of determining this appeal is whether the discrimination can nonetheless be justified. As was said in the judgment of the Grand Chamber on the merits in Stec v United Kingdom (2006) 43 EHRR 1017, para 51, a difference in treatment is discriminatory “if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised".

49.  The evidence on behalf of the Secretary of State in support of refusing disability premium to those without accommodation is contained in the witness statement of Mr Damien Johnson, a Senior Executive Officer of the Department for Work and Pensions. He explains that the present, income support, system was introduced in the late 1980s with a view to simplification and improved targeting. The justification for the policy under attack in this case appears to have two main strands, one of which may be characterised as policy-driven, the other being more practically based.

50.  First, the Secretary of State takes the view that he should encourage the disabled homeless, who are “in a vulnerable position” to seek shelter, and therefore help, rather than rendering it easier, at least in financial terms, for them to remain without accommodation. It appears that 90% of those without accommodation in this country have problems connected with substance abuse and around 45% have mental health problems. Those who are disabled need, or at least would benefit from, accommodation, as indeed is reflected by the fact that they are included among those who are accorded priority need for housing under the Housing Acts (the 1985 Act when disability premium was introduced, and now the 1996 Act). As Mr Johnson explains, “In the government’s view, helping homeless people into accommodation is a much more effective way of helping them than handing out money through the disability premium.”

51.  Secondly, the Secretary of State considers that the disabled are less likely to need a supplement if they are without accommodation than if they are not. This view is based on the proposition that, while the disability premium was not precisely calculated by reference to specific needs, much of it would be spent on heating and other household expenses, items which would not be required by someone without accommodation. Mr Johnson says that “claimants in accommodation have a range of expenses and financial pressures related to that accommodation that claimants without accommodation do not have".

52.  The two grounds upon which the policy is sought to be justified are attacked on behalf of RJM. First, it appears that there may be an element of post hoc justification in some of what Mr Johnson says. However, it is impossible to be sure about that, and, in the end, the question to be determined is whether the policy can be justified at the time it is attacked - see for instance per Lord Hobhouse of Woodborough in Wilson v First County Trust (No 2) [2003] UKHL 40, [2004] 1 AC 816, para 144.

53.  Secondly, there are no doubt arguments which can be put against the views expressed by Mr Johnson. Thus, while they may not have to pay for extra heating, the homeless may well have other expenses not necessarily incurred by those with homes, such as having to buy pre-prepared food and warmer clothing in winter. Also, it is not all those without accommodation who are disentitled from disability premium, but those characterised as “rough sleepers". Further, there is not a clear correlation between disability premium and accommodation.

54.  However, policy concerned with social welfare payments must inevitably be something of a blunt instrument, and social policy is an area where a wide measure of appreciation is accorded by the ECtHR to the state (see para 52 of the judgment in Stec 43 EHRR 1017). As Lord Bingham said about a rather different statute, “[a] general rule means that a line must be drawn, and it is for Parliament to decide where", and this “inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial” - R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 2 WLR 781, para 33.

55.  To similar effect, in this case, the Master of the Rolls said in the Court of Appeal at para 57 that “[i]t is not for the courts to form a view on what is or is not appropriate policy", provided that the “executive was … entitled to form the view that there are better ways of assisting disabled homeless people than by providing money, which may be spent in ways which may do them more harm than good".

56.  In my view, the discrimination in the present case was justified, in the sense that the government was entitled to adopt and apply the policy at issue. This is an area where the court should be very slow to substitute its view for that of the executive, especially as the discrimination is not on one of the express, or primary, grounds - see R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, paras 14-17 (per Lord Hoffmann) and paras 55-58 (per Lord Walker of Gestingthorpe). Further, it does not seem to me to be unreasonable for the Secretary of State to take the view that he should be encouraging the disabled homeless to seek shelter and help. Similarly, I do not think it possible to characterise as unreasonable his view that the disabled will be less likely to need a supplement if they are homeless than if they are not.

57.  The fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable. However, this is not such a case, in my judgment.

58.  It is right to add that, after drafting this opinion, I have had the benefit of reading in draft the opinions of my noble and learned friends Lord Walker and Lord Mance. I entirely agree with, and respectfully adopt, what they say in connection with this topic.

Decisions of the ECtHR and the domestic doctrine of precedent

59.  When considering the first issue, namely whether RJM’s claim was within the scope of A1P1, the Court of Appeal was faced with one of its previous decisions, Campbell v South Northamptonshire District Council [2004] EWCA Civ 409, [2004] 3 All ER 387, in which it had decided that a claim based on A1P1 complaining of refusal of housing benefit could not succeed as it was a non-contributory benefit. This decision had itself involved the court following its earlier reasoning in R (Carson) v Secretary of State for Work and Pensions [2003] EWCA Civ 797, [2003] 3 All ER 577. As Campbell [2004] 3 All ER 387 had not been overruled by the House of Lords, the application of well-established principle appeared to suggest, at any rate at first sight, that the Court of Appeal should have dismissed RJM’s appeal on the first issue, ie because his claim did not fall within the scope of A1P1.

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