Category: ECHR/ HRA 1998

Smith v Secretary of State for Levelling Up, Housing and Communities & Anor

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Court of Appeal, Sir Keith Lindblom, Holroyde and Coulson LJJ, [2022] EWCA Civ 1391, 31 October 2022

The claimant/ appellant successfully appealed the refusal of her application to quash a decision dismissing her appeal against a refusal of her application for planning permission for a permanent site for Gypsies and Travellers. The definition of “Gypsies and Travellers”, set out in the policy document “Planning Policy for Traveller Sites” (“PPTS 2015”) had been amended in 2015 to remove the express inclusion within the category of “Gypsies and Travellers” of those who permanently ceased to travel as a result of, inter alia, disability or old age. The effect of the exclusion was that the claimant was not regarded for planning purposes as a Traveller. Continue reading →

P.C. v Ireland

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European Court of Human Rights, Fifth Section (App. No. 26922/19), [2022] ECHR 26922/19, 1 September 2022

The ECtHR rejected a claim that the non-payment to the applicant of his state pension while he was in prison breached Article 14 read with A1P1. The Court rejected the claim that the disparate impact the rule had on the applicant, as someone with no other source of income, related to a “status” for the purposes of Article 14, ruling at §79 that “The different impact that the disqualification had on prisoners with and without other social security entitlements or other forms of income is not related to an aspect of their personal status”. It accepted that being a prisoner could amount to a status but denied that he was similarly situated, for the purposes of an Article 14 claim, with non-convicted persons detained in psychiatric institutions who were “patients, not prisoners” (§85). Nor was he similarly situated with prisoners held on remand who were entitled to continued payment of state pensions (§92) in view of the entitlement of remand prisoners to be presumed innocent.

R (Jwanczuk) v Secretary of State for Work and Pensions

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Queen’s Bench Division, Administrative Court, Kerr J, [2022] EWHC 2298 (Admin), 7 September 2022

The High Court ruled that the exclusion from entitlement to a bereavement support payment (‘BSP’) of the widower of a woman who had, by reason of disability, paid no national insurance contributions (because she was unable to work) breached Article 14 ECHR read with A1P1. In doing so the judge reached the same conclusion as Northern Ireland’s Court of Appeal had in O’Donnell v. Department for Communities [2020] NICA 36. Continue reading →

R (SPM) v Secretary of State for the Home Department; R (Women for Refugee Women) v Secretary of State for the Home Department

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Queen’s Bench Division, Administrative Court, Lang J, [2022] EWHC 2007 (Admin), 28 July 2022

This case concerned a challenge to the arrangements for providing access to publicly funded legal services for detainees at the women’s immigration removal centre (IRC) of Derwentside, County Durham. The IRC is located some distance from any airport of major city and, as a result of difficulties in securing solicitors to cover the publicly funded Detained Duty Advice Scheme (DDAS), interim arrangements had been put in place under which detainees at Derwentside were not entitled to in-person visits under the DDAS between December 2021 and July 2022. By contrast, detainees held in male IRCs were entitled to face-to-face DDAS visits during this period. Continue reading →

R (Efthimiou) v Mayor and Commonalty and Citizens of the City of London

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Queen’s Bench Division, Administrative Court, Cotter J, [2022] EWHC 1588 (Admin), 23 June 2022

This was a challenge brought under the EqA and the HRA to increases in the charges for use of Hampstead’s Ladies’ Pond. The claim was that the increased charges breached the defendant’s duty to make reasonable adjustments for disabled persons under ss20, 21 & 29 EqA and indirect discrimination against disabled people contrary to s19 EqA and Article 14 ECHR read with Article 8 and/or Article 1 Protocol 1. Continue reading →

L. F. v The United Kingdom

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European Court of Human Rights (Fourth Section) (App. No. 19839/21) [2022] ECHR 19839/21, 16 June 2022

This was an appeal to the ECtHR from the decision of the Supreme Court in R (Z & Anor) v Hackney LBC & Anor [2020] UKSC 40 (see previous post). The European Court of Human Rights dismissed the application to the Court as inadmissible.  The Applicant complained that the preferential treatment of members of the Orthodox Jewish Community (“OJC” below) breached her Article 8 and 14 ECHR rights. The Court accepted that Article 8 was engaged for the purposes of Article 14 but found that the preferential treatment in issue was proportionate and lawful. (References to LBH and AIHA below are to the London Borough of Hackney and the Orthodox Jewish housing association which managed the accommodation whose tenancy criteria Z challenged.) According to the Court: Continue reading →

MD & Anor v Secretary of State for the Home Department

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Court of Appeal: Underhill VP, Asplin and Simler LJJ, [2022] EWCA Civ 336, 16 March 2022

The Court of Appeal allowed the respondent’s appeal from the decision of Kerr J (see previous post). Continue reading →

R (CN) v Secretary of State for Health and Social Care

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Court of Appeal: Sir Geoffrey Vos MR, King and Dingemans LJJ, [2022] EWCA Civ 86, 4 February 2022

The claimant sought to challenge the exclusion from an infected blood compensation scheme of people who contracted hepatitis B (HBV). He had contracted HBV from unscreened blood in 1989 but HBV was excluded from the scheme because blood donors had been screened for HBV since 1972. The claimant sought to rely on Articles 8 and 14 and A1P1 ECHR and on s15 EqA (disability discrimination). His claim failed and the Court of Appeal rejected his appeal, relying on the Supreme Court’s decision in R (SC) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26,  (see previous post) and ruling that any differential treatment of similarly situated individuals was justifiable given the intensity of review appropriate to judgments of social and economic policy notwithstanding the fact that disability discrimination was alleged. Continue reading →

Benkharbouche and Janah v United Kingdom

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ECtHR, App. Nos. 19059/18 and 19725/18, [2022] ECHR 19059/18, [2022] ECHR 19725/18

The ECtHR accepted the UK Government’s concessions that it had breached the Article 6 and 14 rights of the second claimant, a domestic worker whose claims against the State of Libya had been blocked by the State Immunity Act. Continue reading →

MOC (by his litigation friend) v Secretary of State for Work and Pensions

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Court of Appeal: Peter Jackson, Singh and Andrews LJJ, [2022] 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. Continue reading →