West Law Report

Disability discriminatory policy is justified

Posted in House of Lords (case), Times Law Report by mrkooenglish on November 9, 2008

From The Times
October 27, 2008
Disability discriminatory policy is justified

House of Lords
Published October 27, 2008
Regina (RJM) v Secretary of State for Work and Pensions
Before Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Mance and Lord Neuberger of Abbotsbury
Speeches October 22, 2008

The policy of disentitling persons without accommodation from receiving the disability premium to which they would otherwise be entitled in their income support amounted to discrimination within article 14 of the European Convention on Human Rights but was lawful as it could be justified on policy grounds.

The House of Lords so held in dismissing an appeal by a homeless person, RJM, from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Lord Justice Carnwath and Lord Justice Maurice Kay) ([2007] 1 WLR 3067) upholding the dismissal by Mr James Goudie, QC, sitting as a deputy judge of the Queen’s Bench Division, of his claim for judicial review of the decision of the Secretary of State for Work and Pensions to cease to pay disability premium for the period during which RJM was without accommodation within the meaning of paragraph 6 of Schedule 7 to the Income Support (General) Regulations (SI 1987 No 1967).

RJM had claimed that the noncontributory premium was capable of being a possession within article 1 of the First Protocol to the Convention so that his right to peaceful enjoyment of his possessions was engaged, that withholding the premium by reason of his homelessness was discriminatory on a ground relating to a status contrary to article 14 and that the discrimination was unjustified. Mr Richard Drabble, QC and Miss Zoe Leventhal for RJM; Mr John Howell, QC and Ms Nathalie Lieven, QC, for the secretary of state; Mr Rabinder Singh, QC, for the Equality and Human Rights Commission, intervening by written submissions.

LORD NEUBERGER said that there was no doubt that paragraph 6 discriminated against disabled persons who qualified for income support and were without accommodation as against such persons who did have accommodation.

The secretary of state had contended, first, that RJM’s claim was not within the scope of article 1 of the First Protocol, as he had neither a right nor a legitimate expectation to a disability premium, and indeed the absence of any such right was the basis of his complaint.

However, the European Court of Human Rights had ruled in Stec and Others v United Kingdom (Application Nos 65731/01 and 65900/01) (The Times April 23, 2004; (2005) 41 EHRR SE 295) that a right to a welfare benefit was a possession for the purposes of article 1, whether or not conditional on the prior payment of contributions.

Bearing in mind the obligation under section 2(1)(a) of the Human Rights Act 1998 to take into account judgments of the Strasbourg court, his Lordship concluded that, as disability premium was part of the United Kingdom’s social welfare system, RJM did have a sufficient possession to bring his claim within article 1.

The Court of Appeal, in following Stec, had departed from one of its previous decisions, Campbell v South Northamptonshire District Council ([2004] 3 All ER 387), to contrary effect.

His Lordship said that where the Court of Appeal considered that an earlier decision of the House of Lords, which would otherwise be binding on it, was inconsistent with a subsequent decision of the Strasbourg court, then, absent wholly exceptional circumstances, it had to follow faithfully the decision of the House and leave it to their Lordships to decide whether to modify or reverse its earlier decision.

But where the Court of Appeal concluded that one of its previous decisions was inconsistent with a subsequent decision from Strasbourg, it was free, but not obliged to depart from that decision.

The secretary of state had argued that even if the claim was within article 1, there was no discrimination on the basis of any status within article 14. Homelessness, it was said, was not a personal characteristic.

But in his Lordship’s opinion, it was. It was established that a generous meaning was to be given to the words “or other status” in article 14.

The Strasbourg decisions as to whether the “other status” requirement of article 14 was satisfied supported such a wide reading. Military rank, as against civilian, residence or domicile, and previous employment with the KGB had all been held to fall within “other status” in article 14.

If persons living in a certain type of home, for example flats, were treated differently from those living in another type, for example houses, that would potentially fall within article 14. That would suggest that treating homeless people differently from those with homes should also potentially fall within article 14.

Having decided that RJM had been the subject of discrimination which in principle was capable of infringing article 14, the remaining question was whether the discrimination could none the less be justified.

The secretary of state took the view that he should encourage the disabled homeless to seek shelter and therefore help rather than rendering it easier, at least in financial terms, for them to remain without accommodation.

It was also said that the homeless were less likely to need the supplement, as much of it would be spent on heating and other household expenses, which would not be required by someone without accommodation.

In his Lordship’s view, the discrimination was justified, in the sense that the government was entitled to adopt and apply the policy at issue. It was an area where the court should be very slow to substitute its view for that of the executive It was not unreasonable for the secretary of state to take the view that he should be encouraging the disabled homeless to seek shelter and help. The fact that there were grounds for disagreeing with that view did not mean that it must be rejected.

Lord Walker and Lord Mance delivered concurring opinions; Lord Hope and Lord Rodger agreed with Lord Neuberger and Lord Walker. Solicitors: Ms Sarah Clarke, Islington; Solicitor, Department for Work and Pensions; Bindmans LLP.

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