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 (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

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

Judd v Cabinet Office

EAT: Jason Coppel QC, UKEAT/0260/20/AT, 9 December 2021

This is an interesting case in which the EAT rejected an appeal from a finding that the claimant had not been discriminated against because of something arising in consequence of her disability (s15 EqA), or denied reasonable adjustments (s20(3) EqA) when an offer of a secondment in Montenegro was withdrawn on health grounds. The claimant had been the victim of a crime shortly before having been offered the secondment and had had to attend A&E twice thereafter with significant health issues as a result, but refused to make full disclosure of her health condition. A tribunal dismissed her claim on the basis that the adjustments she sought would leave her at risk and that it was reasonable for the employer to withdraw the secondment offer. The situation was complicated by the claimant’s refusal to make full disclosure to her employer’s OH advisers of her medical history. Continue reading

SM (a child, by his father and litigation friend) and another v Hackney LBC

Queen’s Bench Division (Planning Court): Kerr J, [2021] EWHC 3294 (Admin), 7 December 2021

This was an unsuccessful challenge under Articles 8 and 14 and s149 EqA (the PSED) to experimental traffic orders (ETOs) made by the respondent which took effect from 9 November 2020. The applicants complained that they are severely prejudiced by increased car journey times to and from their school. The challenge was brought under paragraph 35, Part VI, Schedule 9 to the Road Traffic Regulation Act 1984 rather than by way of judicial review, and so did not require permission, but Kerr J pointed out at §4 that the same principles applied. He expressed sympathy for the applicants who he accepted had been disadvantaged by the ETOs but upheld them as proportionate measures in pursuit of legitimate aims of reducing congestion, improving air quality, road safety and accessibility, encouraging active travel to school and social distancing (applying R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 [and see earlier blog]. He rejected the PSED claim on the basis that, taken in the round, the respondent had taken sufficient steps to comply with the duty of due regard.

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Siddiqui v Siddiqui & Anor

Court of Appeal: Underhill VP, Moylan and Dingemans LJJ, [2021] 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

Rooney v Leicester City Council

EAT: HHJ Tayler, EA-2020–000070-DA, EA-2021–000256-DA, [2022] IRLR 17, 7 October 2021

The Claimant brought claims of direct sex and disability discrimination after she received a formal warning in respect of sickness absence which she attributed to menopausal symptoms. She also complained that when she had told her team manager that she was suffering from hot flushes he had told her that he also got hot in the office; that her appeal against the written warning had been exclusively male and that she had been refused a female doctor for an occupational health assessment. A tribunal struck out her claims, ruling that her menopausal symptoms did not amount to a disability and that the sex discrimination claim had no reasonable prospect of success. The EAT (Judge James Tayler) allowed the appeals, ruling that the symptoms of which the claimant complained (hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, poor concentration, urinary problems and headaches) amounted on the evidence to physical impairments that were long standing (having lasted in excess of a year at the time of the hearing) and that the tribunal had erred in finding without explanation that they did not substantially affect on her ability to carry out day to day activities in view of the uncontested evidence thather symptoms resulted in her forgetting to attend events, meetings and appointments, losing items, forgetting to lock and put the handbrake on her car and to lock her house on leaving it, leaving household appliances switched on, experiencing dizziness, incontinence and joint pain and spending lengthy periods in bed due to fatigue/exhaustion. The EAT, which also ruled that the tribunal had erred in failing to consider her allegations of sex discrimination, remitted the case for determination of the question of disability.

Claimant: David E Grant and Patrick Tomison, instructed by Advocate

Respondent: Victoria Brown, instructed by the council

R (Crowter & Ors) v Secretary of State for Health and Social Care

Divisional Court: Singh LJ and Leiven J , [2021] EWHC 2536 (Admin), 182 BMLR 1, 23 September 2021

This was an unsuccessful challenge based on numerous human rights grounds of the fact that the Abortion Act 1967 s1(1)(d) permits abortion at a later stage of foetuses if there is “a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”. The claimants (persons with and the mother of a person with Down’s Syndrome) argued that it was impermissible to distinguish between pregnancies where there was a substantial risk that, if born, a child would be “seriously handicapped”, and those pregnancies where the risk of such “handicap” was smaller. They sought to rely on Articles 2, 3, 8 and 14 ECHR. The first of these failed on the grounds that the ECHR had never decided that a foetus was the bearer of Convention rights and had ruled in RR v Poland (2011) 53 EHRR 1047 that the decision whether or not to continue with a pregnancy fell within the scope of Article 8. They will not be further considered here. Of more direct relevance to this blog are the Article 14 arguments which the Court considered in some detail despite having found that the discrimination in issue did not in fact fall within the scope of Article 8. Continue reading

The Department for Communities & Anor v Cox

Northern Ireland Court of Appeal: Morgan LCJ, Treacy and McClosky LJJ, [2021] NICA 46, 3 August 2021

The applicant, who had been diagnosed with motor neurone disease, challenged a refusal to grant her enhanced rate Personal Independent Payments and assessment-free Universal Credit (“UC”) on the basis that she was terminally ill, in each case because she did not fall within the relevant legislative definitions of “suffering from a progressive disease where death in consequence of that disease can reasonably be expected within 6 months” (emphasis added). The prognosis in the applicant’s case was that her condition was terminal but the trajectory uncertain. Northern Ireland’s High Court ruled, per McAlinden J, that the exclusion of the claimant from the benefits she sought breached her Article 14 rights read with Article 8 and A1P1 and awarded her damages of £5 000 in respect of the upset, distress, annoyance, inconvenience, worry and humiliation caused by the breach. The Court of Appeal allowed the Department’s appeal, applying the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 and ruling that the discrimination was justified. Continue reading

Smith v Secretary of State for Housing, Communities and Local Government & Anor

QBD Planning Court: Pepperall J, [2021] 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