Queen’s Bench Division (Divisional Court): Singh LJ and Swift J,  EWHC 298 (Admin),15 February 2022
This decision is most interesting for its approach to standing, in particular that the Good Law Project’s roving approach to JR challenges did not provide it with standing for such challenges. The Court also rejected the claim of the Runnymeade Trust, which it accepted did have standing on a PSED challenge, to standing to challenge as indirectly discriminatory the many informal appointments to positions of responsibility which characterised the approach of the UK Government’s approach under the pandemic. Such claims were in the Divisional Court’s view properly brought by individual litigants who sought to challenge their own exclusion from consideration rather than by either claimant, and were not the proper subject of judicial review. Having decided that the Runnymede Trust did have standing to challenge the defendant’s compliance with the PSED the court concluded that the duty had been breached in relation to two of the appointments. 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
Divisional Court: Singh LJ and Leiven J ,  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
Court of Appeal: Sir Terence Etherton MR, Dame Victoria Sharp P and Singh LJ  EWCA Civ 1058, 11 August 2020
The Court of Appeal allowed the Claimant’s appeal against the decision of the Divisional Court that the Defendant had not breached the PSED in its trial of live automated facial recognition technology (“AFR Locate”), by which the Defendant compared images of members of the public captured by surveillance cameras to images of persons on a watchlist. It was argued on appeal that AFR Locate breached Article 8 ECHR, data protection legislation and the PSED. This note is concerned only with the PSED challenge. The decision is an important one in that it underlines the proactive nature of the PSED and the evidence-gathering obligation it places on public authorities.
Court of Appeal: Sir Geoffrey Vos C, Singh and Simler LJJ,  EWCA Civ 1046, 5 August 2020
The claimant unsuccessfully appealed against the rejection by Lewis J of its challenge to the decision to remove the exemption in the congestion charging regime which had previously applied to private hire vehicles (PHVs). The exemption remained applicable to black cabs and to the 1% of PHVs which were wheelchair accessible. The claimant argued that the removal of the exemption amounted to indirect discrimination against BAME and women PHV drivers, 94% of PHV drivers being from BAME backgrounds whereas 88% of black cab drivers were white. Continue reading
Court of Appeal: Lord Burnett CJ, Singh and King LJJ,  EWCA Civ 559,  2 All ER 813, 29 April 2020
The Court of Appeal rejected the claim that sex as recorded in a gender recognition certificate determines a person’s status as mother or father of a child. The claimant, who was registered as female at birth but subsequently acquired a gender recognition certificate, wished to be recorded as the father, “parent” or “gestational parent” of the child to whom he had given birth.The Registry Office insisted that the claimant be registered as the child’s “mother”, albeit under his (male) name. His application for judicial review of the refusal to grant a birth certificate in such terms failed and the Court of Appeal rejected his appeal.
Court of Appeal: Singh, Rose and Arnold LJJ,  EWCA Civ 618, 12 May 2020
Note that the decision in R (DA) v Secretary of State for Work and Pensions  UKSC 21;  1 WLR 3289 is no longer good law as a result of the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see later post).
The standard of justification in Article 14 cases concerning welfare benefits has been fixed by the Supreme Court as being the “manifestly without reasonable foundation” (MWRF) test. Attempts to unseat this on the basis that it is inconsistent with the approach of the ECHR where protected characteristics such as sex or disability are concerned (see eg R (Carmichael) v Secretary of State for Work and Pensions  UKSC 58,  1 WLR 4550) have failed, even the perennially courteous Lord Wilson insisting in R (DA) v Secretary of State for Work and Pensions  UKSC 21;  1 WLR 3289 that, as regards welfare benefits, “the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it.” This approach may fall to be revisited in light of the ECtHR decision in JD & A v United Kingdom (Applications nos. 32949/17 and 34614/17)  HLR 5, in which that Court confirmed that the MWRF applies to discrimination challenged under Article 14 and A1P1 only in “circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality” (such as in Stec v UK (Applications nos. 65731/01 and 65900/01)(2006) 43 EHRR 47). Meanwhile, the decision of the Court of Appeal in TD indicates that even the MWRF test is capable of being breached. Continue reading