Court of Appeal: Underhill VP, Asplin and Simler LJJ,  EWCA Civ 336, 16 March 2022
QBD Planning Court: Pepperall J,  EWHC 1650 (Admin) 17 June 2021
The claimant, a settled Romany Gypsy, unsuccessfully sought to challenge Department for Communities & Local Government planning policy issued in August 2015 which removed from the definition of “Gypsies and Travellers” those who had permanently ceased to travel by reason of health, education or old age. She also sought to challenge a decision of the inspector appointed by the Secretary of State to dismiss an appeal against the refusal of planning permission, which refusal flowed from the fact that neither Ms Smith nor any member of her family was recognised as a Gypsy under the policy. The claimant argued, inter alia, that the planning definition in the 2015 policy unlawfully discriminated against elderly and disabled Gypsies, relying both on the ECHR and the EqA. Pepperall J accepted that the policy impacted disparately on the elderly and disabled Gypsies, and acknowledged the extreme disadvantage experienced by Gypsies and Travellers in this and other contexts. He ruled, however, that the policy was justified taking into account the provision made by the planning system as a whole for the “particular needs of Gypsies and Travellers who have retired from travelling”. Continue reading
The claimants were single mothers from Albania who had been victims of sex trafficking who had sought asylum in the UK. Prior to the grant of their refugee status they had been denied financial support under the provisions of the Modern Slavery Victim Care Contract in respect of their dependent children because they were asylum seekers in receipt of asylum support. They would not have been so excluded had they not been in receipt of asylum support but had been in receipt of financial support from other sources (universal credit, “legacy” benefits or paid work). The High Court ruled that the claimants’ treatment amounted to discrimination on grounds of sex contrary to Article 14 ECHR read with Article 8 and A1P1. Noting that the different treatment was the result of mistake rather than intention, the Judge ruled that the margin of appreciation available to protect the making of a judgment did not so readily protect against incompetence in its execution, remarking that “a margin of appreciation is not the same thing as a licence to err”. Kerr J was notably critical of the defendant, referring to her evidence being “not of progress towards reform but of corporate amnesia and repeated requests for more time” and submissions made on her behalf as “constitutionally wrong and unfair to the court”. He awarded the claimants under s8(3) HRA, seeing “real force” in the submission that their treatment had been “egregious”.
Administrative Court: Chamberlain J,  EWHC 102 (Admin), 22 January 2021
The High Court 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 Further, having scrutinised the justification for the Secretary of State’s approach through the prism of Article 14, he went on to find that it was also irrational as a matter of common law. The decision engages intelligently with the sometimes tricky question of appropriate comparator pools, and shines useful light on the potential for common law rationality to accommodate discrimination-based claims even were direct reliance on Article 14 to become unavailable. Note that this decision was overturned on appeal (see  EWCA Civ 1482 and later post.