COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr James Goudie QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE MAURICE KAY
| R (RJM)
|- and -
|Secretary of State for Work and Pensions
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Ms Nathalie Lieven QC (instructed by the Office of the Solicitor, Department for Work and Pensions) for the Respondent
Hearing date: Wednesday 23 May 2007
Crown Copyright ©
Sir Anthony Clarke MR :
"(1) A person in Great Britain is entitled to income support if -
(e) he falls within a prescribed category of person;
(4) Subject to subsection (5) below, where a person is entitled to income support, then
(a) if he has no income the amount shall be the applicable amount; and
(b) if he has income the amount shall be the difference between his income and the applicable amount."
"17. Applicable Amounts
Subject to regulations 18 to 22A and 70 (applicable amounts in other cases and reductions in applicable amounts and urgent cases), a claimant's weekly applicable amount shall be the aggregate of such of the following amounts as may apply in his case:
(a) an amount in respect of himself or, if he is a member of a couple, an amount in respect of both of them, determined in accordance with paragraph 1(1), (2) or (3), as the case may be, of Schedule 2;
(d) the amount of any premiums which may be applicable to him, determined in accordance with Parts III & IV of Schedule 2 (premiums);
(e) any amounts determined in accordance with Schedule 3 (housing costs) which may applicable to him in respect of mortgage interest payments or such other housing costs as are prescribed in that Schedule..."
"(1) in the case of a person to whom any paragraph in column 1 (of Schedule 7 applies) the amount included in the claimant's weekly amount in respect of him shall be the amount prescribed in the corresponding paragraph in column (2) of that schedule "
Under regulation 21(1), paragraph 6 of Schedule 7 provides that for "a claimant who is without accommodation", the amount applicable to him is only that under regulation 17(1)(a). This disallows the entitlement to a DP to which those "with accommodation" and fulfilling the criteria would be entitled under regulation (1)(d). The Department of Work and Pensions has issued a "Decision Makers Guide" ("DMG"), which, in an amendment dated 16 June 2005, includes the following in respect of this provision:
"24156 Where a DM decides that a claimant has no accommodation the applicable amount should include only the normal personal allowance for the claimant and partner. The DM cannot for example include dependants allowances, housing costs premium or TE
24157 DM 24156 applies only to people without accommodation. The fact that a person may have no fixed address is not relevant to the decision." (emphasis in original)
"24158 The word "accommodation" is not defined in the SS legislation, but in this context means an effective shelter from the elements
1. which is capable of being heated and
2. in which the occupants can sit, lie down, cook and eat and
3. which is reasonably suited for continuous occupation.
24159 The site of the accommodation may alter from day to day, but it is still accommodation if the structure is habitable. Material which gives only a small amount of protection from the elements, for example
- cardboard boxes
- sleeping bags
- bus shelters
- park benches
do not fall within the description of accommodation."
There follows specific guidance as to the use of cars and mobile homes as accommodation in paragraphs 24160-1 and as to temporary absences from home in paragraph 24162.
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law".
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
"51. In the modern democratic State, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic and legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid subject to the fulfilment of the conditions of eligibility as of a right. Where an individual has the assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding Article 1 of Protocol No 1 to be applicable.
52. Finally, and in response to the Government's contention, the Court considers that to hold that a right to a non-contributory benefit falls within the scope of Article 1 of Protocol No 1 no more renders otiose the provisions of the Social Charter than to reach the same conclusion in respect of a contributory benefit. Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature. The mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the field covered by the Convention (see Airey v Ireland, judgment of 9 October 1979, Series A no. 32, § 26).
53. In conclusion, therefore, if any distinction can still be said to exist in the case-law between contributory and non-contributory benefits for the purposes of the applicability of Article 1 of Protocol No 1, there is no ground to justify the continued drawing of such a distinction.
54. It must, nonetheless, be emphasised that the principles, most recently summarised in Kopecky v. Slovakia [GC], no 44912/98, § 35, ECHR 2004-IX, which apply generally in cases under Article 1 of Protocol No 1, are equally relevant when it comes to welfare benefits. In particular, the Article does not create a right to acquire property. It places no restriction on the Contracting State's freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme (see, mutatis mutandis, Kopecky [GC] § 35(d). If, however a Contracting State has in force legislation providing for the payment as of right of a welfare benefit whether conditional or not on the prior payment of contributions that legislation must be regarded as generating a propriety interest falling within the ambit of Article 1 of Protocol No 1 for persons satisfying its requirements (ibid.).
55. In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question (see Gaygusuz, and Willis, also cited above, § 34). Although Protocol No 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.
56. It follows that the applicants' interests fall within the scope of Article 1 of Protocol No 1, and of the right to property which it guarantees. This is sufficient to render Article 14 applicable."
Paragraphs 54 & 55 were set out in paragraph 9 of the Secretary of State's skeleton argument.
"To this rule I would make one partial exception. In its judgment on the Leeds appeal, para 33, the Court of Appeal said:
"In D v East Berkshire Community NHS Trust  QB 558 this court held that the decision of the House of Lords in X (Minors) v Bedfordshire County Council  2 AC 633 could not survive the introduction of the Human Rights Act 1998. This was, however, because the effect of the Human Rights Act 1998 had undermined the policy consideration that had largely dictated the House of Lords decision. Departing from the House of Lords decision in those circumstances has attracted some academic criticism. It remains to see whether this will be echoed by the House itself."
When that case reached the House, no criticism of the Court of Appeal's bold course was expressed, the House agreed that the policy considerations which had founded its decision in X v Bedfordshire had been very largely eroded and it was accepted that that decision was no longer good law:  2 AC 373 paras 21, 30-36, 82, 119, 124-125. The contrary was not suggested. But there were other considerations which made X v Bedfordshire a very exceptional case. Judgment was given in 1995, well before the 1998 Act. No reference was made to the European Convention in any of the opinions. And, importantly, the very children whose claim in negligence the House had rejected as unarguable succeeded at Strasbourg in establishing a breach of article 3 of the Convention and recovering what was, by Strasbourg standards, very substantial reparation: Z v United Kingdom (2001) 34 EHRR 97. On these extreme facts the Court of Appeal was entitled to hold, as it did in para 83 of its judgment in D, that the decision of the House in X v Bedfordshire, in relation to children, could not survive the 1998 Act. But such a course was not permissible save where facts are of that extreme character."
"54 [A1P1] does not create a right to acquire property. It places no restriction on the Contracting State's freedom to decide whether or not to have in place any form of social security scheme or to choose the type or amount of benefits to provide under any such scheme, If, however a Contracting State has in force legislation providing for the payment as of right of a welfare benefit whether conditional or not on the prior payment of contributions that legislation must be regarded as generating a proprietary interest falling within the ambit of [A1P1] for persons satisfying its requirements "
The Secretary of State makes this limited concession in paragraph 20 of the supplementary note:
"20. In these circumstances, for the purposes of RJM's claim, which does involve a non-contributory welfare benefit, and where it is accepted that the Appellant falls within the general social purpose and intendment of the Income Support scheme, it is accepted that pursuant to Stec his case falls within the ambit of A1P1. The Secretary of State therefore accepts that RJM's case falls within the ambit of A1P1, if the Court of Appeal does not feel itself bound by Campbell."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
48. "The list of grounds in article 14 is not exhaustive, and necessarily includes each of the specifically proscribed grounds as well as 'other status'. The European Court of Human Rights has interpreted "other status" as meaning a personal characteristic: Kjeldsen, Busk Madesen and Pedersen v Denmark (1976) 1 EHRR 711, 732-3, para 56. On the other hand, the proscribed grounds in article 14 cannot be unlimited, otherwise the wording of article 14 referring to "other status" beyond the well-established proscribed grounds, including things such as sex, race or colour would be unnecessary. It would then preclude discrimination on any ground. That is plainly not the meaning of article 14.
49. It is, therefore, necessary to examine whether the ground for different treatment in this case amounts to a status in the sense of a personal characteristic within the meaning of article 14."
"The ECtHR has tended to apply a liberal approach to the 'grounds' upon which discrimination is prohibited, preferring not to limit them or define them restrictively. The general reference to 'other status' allows for many types of discrimination to be considered. In some cases, the ECtHR has not even thought it necessary to define the grounds upon which a specific example of discrimination is upheld."
"Where an individual lives is in principle a matter of choice. So although it can be regarded as a personal characteristic it is not immutable."
"discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status" (my emphasis).
"However, that imprecision cannot be taken as a licence to define groups by reference to criteria which are 'not analogous to any of the expressly prescribed grounds' (R (S and Marper) per Lord Steyn) and which appear to have no special significance in the scheme of the Convention."
"The function of article 14, read with article 1 of the Convention, is to secure to everyone within the jurisdiction of the High Contracting Parties the enjoyment of the rights and freedoms set out in section 1 of the Convention without discrimination on grounds which, having regard to the underlying values of the Convention, must be regarded as unacceptable. This suggests that a generous meaning should be given to the words 'or other status' while recognising, of course, that the proscribed grounds are not unlimited. It seems to me, on this approach that the protection of article 14 ought not to be denied just because the distinguishing feature which enabled the discriminator to treat persons or groups of persons differently in the enjoyment of their Convention rights had not previously been recognised."
The key point in that paragraph seems to me to be that the proscribed discrimination must be on grounds which, having regard to the underlying values of the Convention, must be regarded as unacceptable. Carnwath LJ made a similar point at the end of the passage from Esfandiari quoted above.
"In any event, the Secretary of State has legitimate aims: to target finite resources and assist the homeless, and not least the disabled homeless, in other ways. The means used to achieve those ends is not disproportionate in its effect, however unfair other social policy experts regard it. The Secretary of State and Parliament were entitled to adopt a broad approach, draw the line in the way they did in relation to IS and DP, and to prioritise other measures for addressing the vulnerable position in which the disabled homeless find themselves above giving them enhanced monetary benefits."
37. The policy is not to pay disability premium to claimants who are without accommodation. As set out above, claimants in accommodation have a range of expenses and financial pressures related to that accommodation that claimants without accommodation do not have. The extra help provided by the disability premium is therefore intended to cover expenses that homeless claimants do not generally have.
38. In deciding how best to spend finite state resources where they are most needed, a key consideration is the Government's social policy aims. The Secretary of State aims to make benefits available in a way that addresses most effectively the Government's social policy aims for specific groups of people. People without accommodation are an important group that he Government aims to help. It has done a lot of work to gather information and developed polices in an effort to help these people.
39. The information obtained on people without accommodation shows that:
- 90% are male
- 40 to 50% have mental health problems
- 90% have problems connected with substance misuse e.g. drink and drugs, and
- 70% have had a custodial sentence.
The Government has considered the various information available. It has decided that simply paying out additional benefit (for example in the form of the IS disability premium) to a sick or disabled person who is without accommodation is not the most appropriate way to help these individuals. Paying extra benefits would not address the vulnerable position in which these people find themselves. It would also not address the underlying difficulties that resulted in them becoming without accommodation in the first place. They are in a vulnerable position and need help. The Government aims to provide the help they need to get out of that position. It does not aim to provide money to keep them in their vulnerable position (albeit potentially making that vulnerable position slightly more manageable)."
"42. The Government recognises that disabled homeless people are a particularly vulnerable group and gives a high priority to helping them by the best means available within the available resources. The Government has decided to meet this group's basic needs by introducing legislation giving this group entitlement to the personal allowance in IS. It has decided to meet their special needs by enabling them to apply for SF payments and introducing a whole range of other support measures. The Government believes this, not the IS disability premium, is the best and most effective way of getting disabled homeless people the resources they need. The Government takes the view that this, in fact, provides more support for disabled homeless people than they would have had if they had simply been entitled to the IS disability premium."