Northern Ireland Court of Appeal: Morgan LCJ, Treacy and McClosky LJJ,  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  UKSC 26,  3 WLR 428 and ruling that the discrimination was justified. Continue reading
Administrative Court: Tim Smith (sitting as a deputy judge of the High Court),  EWHC 1177 (Admin), 6 May 2021
In this case the High Court accepted that measures put in place in response to the “Windrush scandal” breached the first claimant’s Article 8 rights and the Article 14 rights of the second to seventh claimants. The case is a useful reminder of the potential for Article 14 to succeed where a claim under the substantive right would not, though the reasoning on Article 14 is succinct to say the least. It is also an example of a case in which a successful application for judicial review resulted in an order for assessment of damages under s8 HRA. Continue reading
Administrative Court: Kerr J,  EWHC 1370 (Admin),  PTSR 1680, 24 May 2021
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”.
Court of Appeal: Peter Jackson, Simler and Lewis LJJ,  EWCA Civ 650, 6 May 2021
Here the Court of Appeal (Simler LJ with whom Peter Jackson and Lewis LJJ agreed) dismissed an appeal against a tribunal’s refusal to award compensation in respect of indirect sex discrimination to a police officer who was subject to a detriment because of his defective colour vision, a condition which affects 8% of men and 0.25% of women, rejecting the claim that s124 EqA breached EU law or Article 14 ECHR. Continue reading