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
Court of Appeal: Underhill VP, Andrews and Warby LJJ,  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  UKSC 26,  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
Court of Appeal, Underhill VP, Macur and Moylan LJJ,  EWCA Civ 1353, 10 September 2021
The Court of Appeal allowed an appeal against the decision of the Upper Tribunal that the exclusion from entitlement to Bereavement Payment (“BP”) under ss 36 of the Social Security Contributions and Benefits Act 1992 of those whose marriages were recognised for religious purposes, and not in English law, breached Article 14 read with A1P1. There was some disagreement between the Court of Appeal judges as to the law relating to polygamy but all were agreed that the claimant was not analogously situated to someone whose religious marriage (conducted abroad) was so recognised, further that the discrimination was justified in any event, the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions having little impact in this case. Continue reading
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
Supreme Court,  UKSC 27,  1 WLR 3746, 9 July 2021
Lord Lloyd-Jones, Lady Arden, Lords Hamblen, Burrows and Stephens
The question for the Supreme Court was whether the exclusion of victims of human trafficking, from compensation under the 2012 iteration of the Criminal Injuries Compensation Scheme (“the CICS”) on the ground of their previous criminal convictions unjustifiably discriminated against them contrary to Articles 4 and 14 ECHR. The Court (per Lord Lloyd-Jones with whom Lady Arden and Lords Hamblen, Burrows and Stephens agreed) adopted broad approaches both to “ambit” and to “other status”. It accepted that the discrimination fell within Article 4 ECHR and that “having an unspent conviction which resulted in a custodial or community sentence is a status for the purposes of art 14”.
Because the claimants’ criminal convictions pre-dated and were unconnected with their status as victims of human trafficking the Court rejected their Thlimmenos claim that they had were entitled, by reason of being trafficked, to be treated differently from other CICS applicants with criminal convictions. The court did accept that the claimants had been discriminated against as people victims of trafficking with relevant unspent convictions, but concluded, having considered the approach of the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see associated blog), that such discrimination was justified. Continue reading
Supreme Court  UKSC 26,  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.
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.
ECtHR, Fourth Section, App. Nos. 18592/15 and 43863/15,  ECHR 18592/15, 11 May 2021
Judge Eicke (President), Judges Grozev, Vehabović, Motoc, Harutyunyan, Vilanova, Guerra Martins
Here the ECtHR ruled that Bulgaria had breached Articles 8 and 14 by excluding from entitlement to a family allowance payable to families with only one living parent, single mothers of minor children whose fathers were unknown. The Court found, inter alia, that the exclusion amounted to sex discrimination because “as maternity is determined by the act of birth, in the vast majority of cases it is only children’s paternity that can be unknown” (§110-111). Perhaps unsurprisingly, it was unsympathetic to the argument put for the state that the rule was justified because it “was a regular practice of certain ethnic and social communities in Bulgaria to ‘pretend’ that the mother was a single parent so as to more easily obtain State benefit” (§§98, 121). Continue reading
Administrative Court: Kerr J,  EWHC 608 (Admin), 17 March 2021
The Claimants unsuccessfully challenged the Defendant’s policy of making deductions at a fixed rate from universal credit (UC) to pay off criminal fines. So far as relevant here, the claim alleged breach of the PSED (s149 Equality Act 2010) and unlawful indirect disability discrimination. The latter claim failed on the evidence, Kerr J pointing out that it would more suitably have been brought in the county court. The Judge did accept that the Defendant had breached the PSED but ruled against the claimants on the basis that compliance with the PSED would very likely have made no difference and that, therefore, s31A of the Senior Courts Act 1981 defeated the claim. Continue reading
Administrative Court: Griffiths J,  EWHC 3436 (Admin), 18 December 2020
This is a carefully reasoned and lucid decision from Griffiths J on the application of Article 8 and /or A1P1 read with Article 14 ECHR. Continue reading