Court of Appeal: Sir Geoffrey Vos MR, King and Dingemans LJJ,  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  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
Court of Appeal: Macur, Asplin and Coulson LJJ,  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
Court of Appeal; Sir Keith Lindblom, Males and Elisabeth Laing LJJ,  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
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. Continue reading
Court of Appeal: Underhill VP, Baker and Davies LJJ,  EWCA Civ 1703, 24 November 2021
This was an appeal from the refusal of a challenge to the lawfulness of the Self-Employment Income Support Scheme (“SEISS”) introduced by the government during the first Covid-19 lockdown. The claimants argued that the scheme breaches Article 14 ECHR read with A1P1 by discriminating against self-employed women who took a period of leave relating to maternity or pregnancy in any of the three relevant tax years on which SEISS payments were calculated, this because the level of support granted to them under the scheme was not representative of their usual profits. Whipple J had dismissed the claim having considered the extraordinary pressures under which the scheme was introduced (including the imperative to distribute funds speedily) and the fact that the scheme adopted operated on the basis of data already held by the state. She was not persuaded that the claimants had demonstrated indirect discrimination or Thlimmenos discrimination but proceeded to consider justification, upon which she found against the claimants having adopted the “manifestly without reasonable foundation” approach (the correctness of which had been common ground between the parties).
The claimants appealed on the basis that Whipple J had erred in her approach to indirect discrimination, to Thlimmenos-type discrimination, and to justification. The Court of Appeal (Underhill and Baker LJJ, with whom Davies LJ agreed) agreed that the Judge had misdirected herself as to indirect discrimination by failing properly to take into account the disparate impact of the scheme on women who had taken maternity leave. It found it unnecessary to consider the challenge to the Judge’s application of Thlimmenos and (having considered the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see previous post) dismissed the appeal on the basis that Whipple J had been entitled to find that any discrimination was justified (further, that it was in fact so justified). The case provides further illustration (see also R (Salvato) v Secretary of State for Work and Pensions  EWCA Civ 1482 and related post) that the movement away from the “manifestly without reasonable foundation” test in cases where suspect grounds are in play is by no means a panacea for claimants.
Court of Appeal: Underhill VP, Moylan and Dingemans LJJ,  EWCA Civ 1572, 2 November 2021
The claimant was a qualified solicitor with “various difficulties and mental health disabilities” who had been unemployed since 2011 and was accepted for the purposes of the litigation as being “vulnerable” as the term is used in the authorities relating to the inherent jurisdiction. He unsuccessfully sought financial orders against the respondents, his parents, requiring them to continue to provide him with significant financial support. His applications failed on the basis that the family court had no jurisdiction to make the orders sought under s27 of the Matrimonial Causes Act 1973 or Schedule 1 of the Children Act 1989 (because his parents were neither divorced nor separated), and that its inherent jurisdiction was not available to assist the applicant because of the “fundamental principle” that the jurisdiction cannot be used when there was “a comprehensive statutory scheme dealing … with the circumstances in which a child, including as here, an adult child, can make a claim against a living parent”. It further ruled that s3 HRA did not permit an alternative construction. The claimant appealed on the basis, inter alia, that the matters complained of fell within the scope of Articles 6 and 8 and A1P1 and engaged a protected status. Moylan LJ, with whom Moylan and Dingemans LJJ agreed, dismissed the appeal. Continue reading
Court of Appeal: Underhill VP, Andrews and Warby LJJ,  EWCA Civ 1482, 13 October 2021
This was an appeal from the decision of the High Court discussed in a previous post. In brief, the High Court (Chamberlain J) ruled that the requirement that the childcare element (CCE) of Universal Credit (UC) could be paid to applicants only after they had actually paid for childcare, rather than becoming liable so to do (“the proof of payment rule”), was unlawful because it discriminated indirectly against women contrary to Article 14 ECHR read with Article 8 and/or A1P1, also because it was irrational. Andrews LJ, with whom Underhill VP and Warby LJ agreed, allowed the Secretary of State’s appeal on both grounds, despite having followed the approach of the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see associated post) to the question of justification. Having stated at §11 that “Much of the Judge’s legal analysis is exemplary”, Andrews LJ concluded nonetheless that “the Judge did fall into material error when he sought to apply the principles he identified to the evidence in this case, and … there are deficiencies in the reasoning which led him to conclude that the Rule was indirectly discriminatory and irrational.” Continue reading
 EWCA Civ 1439,  STC 2199
Court of Appeal: Sir Julian Flaux C, Henderson and Nicola Davies LJJ,  EWCA Civ 1439,  STC 2199, 6 October 2021
The Court of Appeal considered a challenge brought by Arron Banks in respect of a finding of the Revenue and Customs Commissioners that donations of almost £1 million made by him to the UK Independence Party (“UKIP”) were ineligible to be exempted from the inheritance tax liability attaching to his estate by reason of being gifts to political parties because UKIP at the material time failed to meet the threshold established in the Inheritance Tax Act 1984 (s24) of having at least two members in the House of Commons or one member plus at least 150,000 votes in the relevant election.” The claimant sought to rely on Article 14 of the ECHR read with Article 1 of the First Protocol to the ECHR, Article 10 and/or or Article 11 (freedom of assembly) of the ECHR and/or on Articles 10 and/or 11. The Upper Tribunal had overturned a decision by the First-tier Tribunal that Mr Banks had been discriminated against on grounds of his political opinion contrary to Article 14 (though no remedy had be granted to him as it was not possible to construe s24 of the 1984 Act in a Convention-compliant manner and it was not open to the tribunal to make a declaration of incompatibility under s4 HRA). The appellant appealed on the grounds, inter alia, that the Upper Tribunal erred in law in failing to hold that s24 directly or indirectly discriminated against him on the grounds of his political opinion in breach of Article 14 taken with A1P1, also that it erred in dismissing his claim that he was discriminated against on the grounds of being a supporter of a party which did not have any MPs following the 2010 General Election, alternatively that he was a victim of discrimination against UKIP on the grounds that it had no MPs following the 2010 General Election. He also claimed that the UT had erred in concluding that any discrimination (which it had not accepted had occurred) was justified. The Court (Henderson LJ with whom the Chancellor and Davies LJ agreed) dismissed his appeal. Continue reading
Court of Appeal: Peter Jackson, Asplin and Nicola Davies LJJ,  EWCA Civ 1390,  IRLR 993, 24 September 2021
This was an appeal from the decision reported previously in this blog. The claimant was an independent fostering agency which sought to recruit (exclusively) evangelical Christian foster carers whose conduct was consistent with “traditional Biblical Christian” standards of behaviour, which did not include same-sex sex. The High Court rejected its challenge to an Ofsted report which found that its policy of accepting only heterosexual evangelical Christians as the potential carers of fostered children breached the EqA 2010 and the HRA 1998, ruling that the policy discriminated unlawfully on grounds of sexual orientation and was not saved by s193 EqA (see further below) or, because it provided services on behalf of a public authority, by para 2 of Sch 23. It required that Cornerstone alter the policy. Cornerstone was granted permission to appeal the High Court’s ruling on direct and indirect sexual orientation discrimination under the EqA and on the application of s193 EqA, though not on on the application of para 2 of Sch 23. It was also permitted to appeal the High Court’s findings that that Cornerstone had breached prospective foster carers’ Convention rights, and that Ofsted had not breached Cornerstone’s Convention rights.
The appeal was dismissed on all grounds. (Peter Jackson LJ, with whom Asplin and Nicola Davies LJJ agreed, ruled that Cornerstone’s recruitment policy involved direct sexual orientation discrimination and was disproportionate to the aims pursued, this with the effect that the statutory defence did not apply, the discrimination by Cornerstone breached foster carers’ rights under Article 14 and 8 and Ofsted had not breached cornerstone’s rights under Article 9 ECHR. Continue reading
Court of Appeal, Underhill VP, Macur and Moylan LJJ,  EWCA Civ 1353, 10 September 2021
The Court of Appeal allowed an appeal against the decision of the Upper Tribunal that the exclusion from entitlement to Bereavement Payment (“BP”) under ss 36 of the Social Security Contributions and Benefits Act 1992 of those whose marriages were recognised for religious purposes, and not in English law, breached Article 14 read with A1P1. There was some disagreement between the Court of Appeal judges as to the law relating to polygamy but all were agreed that the claimant was not analogously situated to someone whose religious marriage (conducted abroad) was so recognised, further that the discrimination was justified in any event, the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions having little impact in this case. Continue reading