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

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

R (Good Law Project Ltd & Anor) v Prime Minister & Anor

Queen’s Bench Division (Divisional Court): Singh LJ and Swift J, [2022] EWHC 298 (Admin),15 February 2022

This decision is most interesting for its approach to standing, in particular that the Good Law Project’s roving approach to JR challenges did not provide it with standing for such challenges. The Court also rejected the claim of the Runnymeade Trust, which it accepted did have standing on a PSED challenge, to standing to challenge as indirectly discriminatory  the many informal appointments to positions of responsibility which characterised the approach of the UK Government’s approach under the pandemic. Such claims were in the Divisional Court’s view properly brought by individual litigants who sought to challenge their own exclusion from consideration rather than by either claimant, and were not the proper subject of judicial review. Having decided that the Runnymede Trust did have standing to challenge the defendant’s compliance with the PSED the court  concluded that the duty had been breached in relation to two of the appointments. Continue reading

For Women Scotland Limited v (1) The Lord Advocate, (2) The Scottish Ministers

Court of Session (Inner House): Lord Justice Clerk, Lord Malcolm, Lord Pentland, [2022] CSIH 4, 18 February 2022

This was a challenge brought by way of judicial review to the Scottish Government’s decision by way of the Gender Representation on Public Boards (Scotland) Act 2018 to implement certain positive action measures which treated as a “woman” a “person [who] is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female.” Continue reading

Warburton v Chief Constable of Northamptonshire Police

EAT; Griffiths J, [2022] EAT 42, 14 March 2022

The EAT ruled that a tribunal had applied the wrong approach to victimisation when it dismissed the claimant’s complaint against the respondent. Continue reading

Biden v Waverley Borough Council

Court of Appeal: Macur, Asplin and Coulson LJJ, [2022] EWCA Civ 442, 1 April 2022

The Court of Appeal dismissed the claimant’s appeal against the dismissal of her claim that the respondent authority had breached the PSED by failing to make the inquiries the claimant deemed necessary on matters relating to the incidence of gender reassignment hate crime in the area of the accommodation offered to the claimant with the assistance of  an LGBT liaison officer, rather than a police support community officer. Continue reading

Benkharbouche and Janah v United Kingdom

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

R (Sheakh) v Lambeth London Borough Council

Court of Appeal; Sir Keith Lindblom, Males and Elisabeth Laing LJJ, [2022] EWCA Civ 457, 5 April 2022

The Court of Appeal dismissed an appeal, based on the PSED, from the order of Kerr LJ refusing the claimant’s application for statutory and judicial review of experimental traffic orders (ETOs) creating Low Traffic Neighbourhoods which had been made by the respondent. Continue reading

Ali v Heathrow Express Operating Company Ltd & Anor

EAT, Judge Auerbach, Mr D Bleiman and Miss S Wilson CBE, [2022] EAT 54, 7 April 2022

This decision is a reminder that, where unwanted conduct related to a protected characteristic is not intended to offend, intimidate, etc, an objective test applies to the question whether conduct amounts to harassment. Continue reading

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

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

R (Naeem) v Secretary of State for Education

Administrative Court; Foster J, [2022] EWHC 15 (Admin), 6 January 2022

The claimant challenged the Education (Student Support) Regulations 2011 (as amended) on the basis that they breached Article 14 ECHR read with A2P1 by restricting eligibility for student finance to individuals to would-be higher education students who were “settled in the United Kingdom” for immigration purposes on the first day of the first academic year of their course. The claimant, whose academic course started on 1 September 2020, had made an application for settled status. He had, in respect of previous applications, used the Home Office Super Priority visa application service which granted visas within 24 hours on payment of a fee, the normal turnaround offered by the Home Office for disposal of an Indefinite Leave To Remain (“ILR”) Visa application being six months. The Super Priority scheme, and a related Priority scheme, were withdrawn by the Home Office with only a few days’ notice on 31 March 2020, unknown to the Claimant. He became eligible to apply for ILR on 14 April and did so on 17 May 2020, a day before his previous visa was due to expire. He applied for student finance on 24 August 2020. He was granted ILR on 23 November 2020 but was advised by letter of 18 December 2020 that he was ineligible for student finance. After having unsuccessfully appealed this decision he sought judicial review. Foster J ruled that the discrimination in issue fell within A2P1, that the claimant was entitled to rely on the broad approach to “status” approved by the Supreme Court in  R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 (see previous post), and that the discrimination was unjustified and unlawful.

Continue reading