Tag: indirect discrimination

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 →

Cowie & Ors v Scottish Fire and Rescue Service

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EAT, Eady J , Mr D G Smith and Mr S J W Torrance, [2022] EAT 121, 11 August 2022

The defendant fire service was sued by two groups of employees, the first disabled workers who had shielded during Covid and the second women who had faced disruption to childcare arrangements during Covid. The defendant permitted staff to accrue time off in lieu (TOIL) through working overtime and operated a special leave policy which permitted staff who had exhausted TOIL entitlements to request time off to deal with emergencies and unforeseen needs. 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 →

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 →

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 →

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

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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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R (The Motherhood Plan & Anor) v HM Treasury

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Court of Appeal: Underhill VP, Baker and Davies LJJ, [2021] 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 [2021] UKSC 26, [2021] 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 [2021] 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.

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

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Court of Appeal: Underhill VP, Andrews and Warby LJJ, [2021] 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 [2021] UKSC 26, [2021] 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 →

R (Cornerstone (North East) Adoption and Fostering Services Ltd) v OFSTED

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Court of Appeal: Peter Jackson, Asplin and Nicola Davies LJJ, [2021] EWCA Civ 1390, [2021] 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 →

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

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Supreme Court [2021] UKSC 26, [2021] 3 WLR 428, 9 July 2021

Lord Reed P, Lord Hodge DP, Lady Black, Lords Lloyd-Jones, Kitchin, Sales and Lord Stephens

This is a very important decision of the Supreme Court concerning a challenge brought under Articles 8 and 12 ECHR, read alone and with Article 14, to the restriction of the individual element of child tax credit to an amount calculated by reference to two children.  The Supreme Court rejected the challenges under Articles 8 and 12 and, of more relevance to this blog, rejected arguments about direct and indirect discrimination against children, though it accepted that there were prima facie cases of sex discrimination and of direct discrimination against children living in households with more than two children, as compared with children living in households with two or fewer children.

The challenge ultimately failed on justification grounds but the case, which has been cited extensively in virtually every Article 14 decision of the domestic courts since it was decided, is significant because the Court revisited the “manifestly without reasonable foundation” which had been the orthodox approach to Convention challenges to economic/ social policy in the domestic courts since at least 2012.  The case was also significant in that it reimposed an orthodox approach to the treatment of unincorporated international obligations (here the Convention on the Rights of the Child) and included extensive consideration of the reliance which might be placed by the courts on Parliamentary debates and other Parliamentary material when considering whether primary legislation is compatible with Convention rights.

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