Court of Appeal: Peter Jackson, Singh and Andrews LJJ,  EWCA Civ 1, 11 January 2022
This decision concerned a challenge to the suspension of Disability Living Allowance (“DLA”) after an individual in receipt of the benefit has been hospitalised for 28 days. The challenge was brought under Article 14 read with A1P1 to the Convention by MOC, a 60 year old man with complex medical conditions and disabilities whose sister, MG, had been appointed to act as his deputy by the Court of Protection. Prior to his hospitalisation MOC, who had cognitive, mental capacity and mental health issues, Down’s Syndrome, deafness, blindness, dermatological issues, mobility issues, Hirschsprung Disease, double incontinence, dietary issues and severe learning disabilities, had lived with MG prior to his period of hospitalisation and was provided around-the-clock care by MG and her family. When MOC’s DLA was removed he appealed to the First-tier and Upper Tribunal and thereafter to the Court of Appeal. The claimant’s case was that his need for MG to look after his interests and advocate on his behalf did not cease during his period of hospitalisation. His appeal failed. Singh LJ, with whom Peter Jackson and Andrews LJJ agreed, ruled that the claimant had failed to establish the collective disadvantage required for an indirect discrimination claim, and could not rely on (lack of) capacity as a “status” due to its shifting nature, and that any discrimination was in any event justifiable.
The claimant’s case was that his need for MG to look after his interests and advocate on his behalf did not cease during his period of hospitalisation. The appeal failed. Singh LJ, with whom Peter Jackson and Andrews LJJ agreed,
Singh LJ referred at §50 to the approach of the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see previous post) in which Lord Reed, for the Court, had at §37 set out the general approach to Article 14 claims At §51 he pointed out that the question “what is a relevant status for the purposes of Article 14 has been the subject of a great deal of discussion in the House of Lords and the Supreme Court although it rarely troubles the European Court of Human Rights in practice” (citing Lord Wilson in Mathieson v Secretary of State for Work and Pensions  UKSC 47;  1 WLR 3250, §22), observing at §53 that “it is clear from recent decisions of the Supreme Court that the issue of “status” is not wholly redundant” (citing R (A) v Criminal Injuries Compensation Authority  UKSC 27,  1 WLR 3746 (see earlier blog), §§ 61 and 66, per Lord Lloyd-Jones with whom the rest of the Court agreed). At §54 Singh LJ stated that the discrimination alleged in the instant case was indirect rather than direct, citing Lord Reed’s articulation of the relevant test in SC §53:
“… it has to be shown by the claimant that a neutrally formulated measure affects a disproportionate number of members of a group of persons sharing a characteristic which is alleged to be the ground of discrimination, so as to give rise to a presumption of indirect discrimination. Once a prima facie case of indirect discrimination has been established, the burden shifts to the state to show that the indirect difference in treatment is not discriminatory. The state can discharge that burden by establishing that the difference in the impact of the measure in question is the result of objective factors unrelated to any discrimination on the ground alleged. This requires the state to demonstrate that the measure in question has an objective and reasonable justification: in other words, that it pursues a legitimate aim by proportionate means (see, in addition to the authorities already cited, the judgment of the Grand Chamber in Biao v Denmark (2015) 64 EHRR 1, paras. 91 and 114).”
Having stated at §56 that “appellate courts should be hesitant in interfering with the conclusion of a specialist Tribunal within the area of its expertise” and at §57 that the correct test for justification was that established by the Supreme Court in SC and summarised by Andrews LJ in R (Salvato) v Secretary of State for Work and Pensions  EWCA Civ 1482 (see previous blog), at §34, Singh LJ stated that the approach was similar to his own dicta in R (Drexler) v Leicestershire County Council  EWCA Civ 502,  ELR 399, in which he stated at §76 that,
“… the crucial point is not so much whether the ‘manifestly without reasonable foundation’ test is the applicable test, it is rather how the conventional proportionality test, even if that is the applicable test, should be applied given that the context is one in which a public authority is required to allocate finite resources and to choose priorities when it comes to setting its budget; and is also a context in which the ground of discrimination is not one of the ‘suspect’ grounds. In this context, it seems to me that there is no material difference between application of the conventional proportionality test, giving appropriate weight and respect to the judgment of the executive or legislature, and the ‘manifestly without reasonable foundation’ test.”
Turning to the facts of the case before the Court, Singh LJ observed that its presentation had changed over time with the effect that the First-tier Tribunal had not been asked to make findings of fact on matters which were now before the Court. He declined to remit the case in order to allow those findings to be made on the basis (§62) that this would “put the cart before the horse”: “It is only if this Court was satisfied that there has been an error of law by the Upper Tribunal that we would contemplate remitting the case”. At §72 his Lordship, applying Ladd v Marshall  1 WLR 1489, refused an application made on behalf of the claimant for the introduction of fresh evidence.
- The second difficulty which must be faced is that, for the appeal to succeed, the relevant legislation has to be successfully challenged as being unlawful under section 6 of the HRA. It is the rule itself which must be unlawful. If the rule is not unlawful, the Respondent was not only entitled to apply it to the facts of this case but had to do so as a matter of law. Accordingly, much of the evidence in this case, which concerns this particular Appellant and MG, is simply not to the point. Although any reasonable person would have sympathy and admiration for all that MG does for the Appellant, the only question for this Court is whether the legislation under challenge is unlawful. That question cannot turn on the facts of any individual case. It must be shown to be the case across the board.
His Lordship agreed with the First-tier Tribunal judge that the claimant could not rely on a lack of capacity as amounting to another “status” within Article 14 given (§65) that “capacity may change from time to time and may do so quickly”. He was prepared to assume, however, as the tribunal judge had done that the claimant had a relevant status for Article 14 purposes.
At §66 Singh LJ he stated that he saw “no logical connection between the purpose of DLA and the role of a deputy appointed under the 2005 Act. There were times at the hearing when it appeared to be suggested that what this case is really about is whether a deputy is entitled to claim expenses for performing her tasks as a deputy. Whether or not that would be a good idea as a matter of social and economic policy, in my view it has nothing to do with whether the rule under challenge is discriminatory”. At §69 he concluded that there was no evidence on which a finding of indirect discrimination could be made (this requiring, as Lord Reed set out in SC §53, “a neutrally formulated measure [which] affects a disproportionate number of members of a group of persons sharing a characteristic which is alleged to be the ground of discrimination)”.
Notwithstanding his conclusions on indirect discrimination his Lordship went on to consider the question of justification, concluding at §70 that the hospitalisation rule “had an objective and reasonable basis so that it satisfies the principle of proportionality”. In reaching this conclusion he made reference to the facts that: (1) public spending was in issue; (2) the discrimination alleged was indirect rather than direct, the latter often being “more difficult”, sometimes “impossible in practice” to justify; (3) the status “whatever it may be” was not a suspect ground; (4) the rule had “been in place for many decades and has been the subject of approval by Parliament using the affirmative resolution procedure”; and (5) “This is a context in which a “bright line” rule is appropriate and necessary”.
Singh LJ concluded by stating that the appeal “cannot succeed because, on the evidence, the alleged disproportionate impact on a certain group was not proved. This was never anything other than an indirect discrimination case, yet the argument based on indirect discrimination fails on its facts. In those circumstances it is difficult to see how the test for an appeal to this Court could be satisfied, let alone the test for a second appeal. With respect to the UT, this case provides a salutary reminder that, although it has the power to grant permission to appeal, it may be better to leave that question to this Court, which is very familiar with the type of case that will satisfy the second appeal test”.
Claimant: Amanda Weston QC, Desmond Rutledge and Ollie Persey, instructed by Merseyside Law Centre
Defendant: Joanne Clement and Alice Richardson, instructed by the Treasury Solicitor