England and Wales High Court (Administrative Court) Decisions

Reynolds, R (on the application of) v Secretary of State for Work and Pensions [2002] EWHC 426 (Admin) (7th March, 2002)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2A 2LL
		7th March 2002

Mr Justice Wilson:

SECTION A: INTRODUCTION

1. The Claimant, Ms Reynolds, was born on 9 November 1976 so she has recently become 25 years old. She lives in a one bedroom council flat in the Black Country with her baby son, who was born on 9 June 2001.
2. When she left school, Ms Reynolds began work; she continued to work until she was made redundant on 12 October 2000. During those years of work national insurance contributions were made by her and by her employers on her behalf. On 24 October 2000 she applied for jobseeker’s allowance and it was paid with effect from that date. With effect from 12 January 2001 she was considered to be no longer capable of work because of problems related to her pregnancy. So she was paid income support instead of jobseeker’s allowance. Income support continued to be paid to her until the birth of the baby, at which point I can stop the clock. Throughout the relevant period (24 October 2000 to 9 June 2001) Ms Reynolds received housing benefit and council tax benefit in addition to the successive payments of jobseeker’s allowance and income support. She also received a maternity allowance for about the final three months of pregnancy.
3. There are two types of jobseeker’s allowance. One (“JSA(C)”) is based on a history of payment of national insurance contributions over a prescribed minimum period and, subject to exceptions, is not means-tested. The other (“JSA(IB)”) is income-based, in other words means-tested, as is income support. Ms Reynolds’ entitlement to jobseeker’s allowance between 24 October 2000 and 12 January 2001 was based on her national insurance contributions. Her entitlement to income support thereafter was based on her lack of other means.
4. The same weekly sum was paid to Ms Reynolds in respect of jobseeker’s allowance as, thereafter, in respect of income support: it was £41.35 per week^*. Such was the sum paid to her because, throughout the period of the payments, Ms Reynolds was aged not less than 18 but less than 25; and, in respect of both types of payment, subordinate legislation to which I will refer purport to provide for that rate of payment to claimants in that age group. They also purport to provide for claimants aged not less than 25 to receive £52.20 per week. So, had Ms Reynolds been in effect one year older than she was, she would have been paid an extra £10.85 per week.
5. In the above circumstances Ms Reynolds seeks judicial review of the lawfulness of the Defendant’s payments to her of only £41.35 per week. She mainly contends that, in paying her at the lower rate, the Defendant acted incompatibly with her rights under the European Convention on Human Rights and Fundamental Freedoms 1950. She says that his action was firstly incompatible with her entitlement to the peaceful enjoyment of her possessions under Article 1 of the First Protocol to the Convention; secondly incompatible with her right thus to enjoy her possessions without discrimination on ground of age under Article 14 of the Convention; thirdly incompatible with her right to respect for her private life and her home under Article 8; and fourthly incompatible with her right not to be subjected to degrading treatment under Article 3. She asks the court to hold that the subordinate legislation pursuant to which the Defendant made the payments is thus itself incompatible with her rights and, since the primary legislation does not require (and thus does not prevent removal of) the incompatibility, she argues that it should quash the subordinate legislation. Alternatively, says Ms Reynolds, the subordinate legislation should, without regard to her human rights, be quashed as ultra vires at common law. In either event she also seeks damages.

SECTION B: THE LEGISLATIVE HISTORY

6. Age-related bands, including the controversial demarcation at age 25, came into force in relation to income support on 11 April 1988 and to jobseeker’s allowance on 7 October 1996. With effect from 2 January 1996 the same demarcation has also applied to some claims for housing benefit but not, as in the case of Ms Reynolds, in respect of local authority housing.
7. In June 1985 the government published a Green Paper in three volumes entitled “Reform of Social Security” (Cmnd. 9517-9). One of its major proposals was to replace supplementary benefit with income support. The rules relating to supplementary benefit provided that a householder be paid more than a non-householder. The paper suggested that, in this and other respects, the rules had becoming increasingly difficult to administer and it proposed a simpler and clearer system. In the second volume a proposal was expressed as follows:

“2.72 There will be a standard personal allowance for all claimants, varied only by age and marital status. That will end the present householder/non-householder distinction and the structural distinction between ordinary and long-term rates. These will be replaced by age-related rates.

2.73 There is no one age dividing line relevant to all claimants. But it is clear that at the age of 18 the majority of claimants are not fully independent and that the great majority of claimants above age 25 are. This is already in practice reflected in the present scheme. In 1983 nearly 90 per cent of all claimants over 25 were getting the higher householder rate. By contrast the clear majority of claimants under 25 were living in someone else’s household. This is particularly marked for single claimants, the great majority of whom aged between 18 and 24 presently get a lower rate of help. The Government have concluded that an appropriate dividing line is age 25. There will therefore be different rates for adult claimants above and below age 25, although, as explained below, account will be taken of claimants’ family responsibilities.”

8. During the following months substantial criticism was directed at the above proposal. The Policy Studies Institute published a paper by Dr Berthoud entitled “The Examination of Social Security” in which he complained that its result would be to benefit less needy 25-and-over non-householders at the expense of more needy under-25 householders. He challenged the appropriateness of any demarcation at age 25, although in particular he criticised its application to couples under 25. In its fourth report the government’s own Social Security Advisory Committee also criticised the proposal and stated in italics at 3.10:

“If an age split is thought preferable for administrative reasons, then 25 is certainly too high.”

But, other than by giving way in relation to couples under 25, the government stood its ground. In its White Paper, entitled as before, published in December 1985 (Cmnd. 9691) it wrote:

“3.11 …. We have decided that all couples aged 18 or over should receive the same personal allowance. This means, in particular, that all those with children will benefit fully from the improved help for families. Lone parents will also get the higher personal allowance from age 18.

3.12 The Government understand the concern about the position of single young householders but are not persuaded that the answer is to retain the distinction between householders and non-householders. The most important help available to those with housing responsibilities is the assistance with rent and rates they receive through housing benefit. Maintaining a dual system based on householders and non-householders in income support would retain an unnecessary complication of the existing system.

3.13 All age-dividing lines are of course open to argument at the margin. Nonetheless, the fact is that the great majority of single claimants without children under 25 now live in other people’s households and they already receive a lower rate of help. Overall, four-fifths of single claimants without children in the 18 to 24 age group get the non-householder rate. It is also reasonable to recognise that earnings levels are generally lower for this group than for those in older age groups. The abolition of the householder distinction and the introduction of the 25 age point have enabled the Government to concentrate more resources on older people - including pensioners and disabled persons living in other people’s households.”

9. Thus the conjunction of s 21(1), s 22(1) and s 84(1) of the Social Security Act 1986 (now replaced to the same effect by s 124(4), s 135(1) and s 137(1) of the Social Security Contributions and Benefits Act 1992) provided that the amount of any income support should be such as was determined in accordance with regulations. Regulation 17(1) of, and Schedule 2 to, the Income Support (General) Regulations 1987 (S.I. No. 1967) provide that a single claimant to income support aged not less than 18 but less than 25 should receive a sum which in April 2000 rose to £41.35, whereas such a claimant aged not less than 25 should receive a sum which then rose to £52.20. It should be noted that there is no reference in the Acts of 1986 or 1992 to a demarcation at age 25 or even in general to the relation of payments to age.
10. By a White Paper published in October 1994 and entitled “Jobseeker’s Allowance” (Cm 2687), the government announced proposals to bring together under that one type of benefit the payments previously made to those out of work but able to work by way of (contribution-based) unemployment benefit and (means-based) income support. The latter was to remain available for all others who had been entitled to it. There was no mention of age-related bands in the White Paper but, when the legislation was presented to Parliament, it became clear that the government intended to import into the structure of both types of jobseeker’s allowance the age-related bands referable to income support. In debate a junior minister sought to defend the lower rate for single claimants aged under 25 on the basis that most of them did not live independently and so had fewer financial responsibilities and that, for those who did live independently, housing benefit was available in any event.
11. In the result JSA(C)^* become the subject of the following provisions. Section 4 of the Jobseekers Act 1995 provides:

“(1) In the case of a contribution-based jobseeker’s allowance, the amount payable in respect of a claimant (“his personal rate”) shall be calculated by –

(a) determining the age-related amount applicable to him; and

(b) making prescribed deductions in respect of earnings and pension payments.

(2) The age-related amount applicable to a claimant, for the purposes of sub-section (1)(a), shall be determined in accordance with regulations.”

Regulation 79 of the Jobseeker’s Allowance Regulations 1996 (S.I. No. 207) prescribes the age-related amounts referable to JSA(C) and, in particular, prescribes a lower amount for a claimant who has attained the age of 18 but not the age of 25 than for a claimant aged 25 or over. It will thus be noted that, by contrast with the provisions for income support, there is reference in the primary legislation to “the age-related amount”; but that, as in the case of income support, the age-related demarcations are identified only in subordinate legislation.

12. It will now be seen why Ms Reynolds’ case does not require her to seek any declaration of incompatibility with Convention rights under s. 4 of the Human Rights Act 1998, whether in respect of primary or of subordinate legislation. It is true that, in the case of JSA(C), primary legislation, namely s. 4 of the Act of 1995, certainly permits and in my view mandates that entitlement be calculated by reference to an “age-related amount”. But Ms Reynolds does not argue that calculation of entitlement in relation to age is necessarily incompatible with Convention rights. The alleged incompatibility is only with the demarcation at age 25; such is to be found, in the case both of JSA(C) and of income support, only in subordinate legislation and there is no primary legislation which would prevent its removal.

SECTION C: THE ALLEGED BREACH OF ARTICLE 1 OF THE FIRST PROTOCOL

13. Article 1 of the First Protocol provides:

“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.

…”

14. The right is limited to the enjoyment of “possessions”. Subject to a subsidiary argument to which I will turn in paragraph 18, the Defendant now concedes that Ms Reynolds’ right to JSA(C) from October 2000 to January 2001 falls within the definition of a possession. He disputes, however, that her right to income support from January to June 2001 falls within that definition. He argues that, in order to qualify as a possession, a right to payment out of a government social welfare scheme must be linked to contribution into it referable to the payee; and that the former, but not the latter, type of payment thus qualifies.
15. In this regard both Mr Gill QC on behalf of Ms Reynolds and Mr Coppel on behalf of the Defendant make detailed submissions about the effect of the decision of the European Court in Gaygusuz v Austria (1996) 23 EHRR 365. Its subject-matter was an Austrian state scheme for emergency assistance to be paid to an unemployed person who

(a) had been employed;

(b) had made contributions into the scheme during that period;

(c) had become unemployed and thereafter exhausted his entitlement to unemployment benefit;

(d) remained fit and available for work;

(e) was in urgent need; and

(f) possessed Austrian nationality.

The applicant, who was of Turkish nationality but satisfied all the other conditions, established that his Convention rights had been infringed and in particular that his rights under the scheme amounted to a “possession” for the purpose of Article 1. In judgment the court said:

“39. The Court notes that at the material time emergency assistance was granted to persons who had exhausted their entitlement to unemployment benefit and satisfied the other statutory conditions laid down in section 33 of the 1977 Unemployment Insurance Act.

Entitlement to this social benefit is therefore linked to the payment of contributions to the unemployment insurance fund, which is a precondition for the payment of unemployment benefit. It follows that there is no entitlement to emergency assistance where such contributions have not been made.

40. In the instant case it has not been argued that the applicant did not satisfy that condition; the refusal to grant him emergency assistance was based exclusively on the finding that he did not have Austrian nationality and did not fall into any of the categories exempted from that condition.

41. The Court considers that the right to emergency assistance – in so far as provided for in the applicable legislation – is a pecuniary right for the purposes of Article 1 of Protocol No. 1. That provision is therefore applicable without it being necessary to rely solely on the link between entitlement to emergency assistance and the obligation to pay “taxes or other contributions” …”

Mr Gill relies strongly on paragraph 41. But I consider that, in analysing its first sentence, it is important to give value to the words between the hyphens, which lead back to paragraph 39 and the precondition of payment of contributions; and that the second sentence in paragraph 41, although slightly opaque, is intended to convey that, provided that one precondition is such payment, a right to assistance can still qualify as a possession notwithstanding the existence of other preconditions, such as those at (d) and (e) above.

16. It is true that some eminent commentators, for example Simor and Emmerson in Human Rights Practice at §14.004^* and Anderson in his article on Compensation for Interference with Property [1999] EHRLR 543 at 546, have construed the Gaygusuz case as authority for the proposition that social security benefits, whether or not contribution-based, qualify as possessions under Article 1. But Mr Gill accepts that the European Court and its now defunct Commission, both labouring (so he says) under a serious misapprehension, have not construed it in that way. In Carlin v UK No. 27537/95, Szrabjer and Clarke v UK Nos. 27004 and 27011/95 and Coke v UK No. 38696/97 the Commission held, and in Shackell v UK No. 45851/99 the Court also held, that the determining feature in Gaygusuz was the link to the payment of contributions.
17. Mr Gill points out that, in s. 124 of the Act of 1992, income support is described as an “entitlement” for those who fulfil its criteria. He predicts, with quite a convincing show of confidence, that in time the European Court will move in the direction for which he contends. But, in my construction of the meaning of “possessions”, I must take its decisions into account. Indeed in R. (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] 2 WLR 1389 at 1399C Lord Slynn of Hadley said:

“In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights.”

I hold that, in that the making of contributions is not a precondition for the payment of income support, entitlement to it is not a possession within the meaning of Article 1.

18. My focus in the remainder of this section will thus be limited to Ms Reynolds’ entitlement to JSA(C). Granted that in principle her entitlement thereto qualifies as a possession, I need to look more closely at what she did possess in that regard: was it a right to be paid £52.20 per week or was it a right to be paid a sum calculated in accordance with the regulations of 1996?
19. In this regard Mr Coppel relies upon the decision of the Commission in Müller v Austria (1975) 3 D and R 25. The applicant, an Austrian national, found work in Liechtenstein and elected, in accordance with the law then in force in Austria, to make voluntary contributions, equal to his previous compulsory contributions, with a view to continuing to build his entitlement to a basic Austrian state retirement pension. Six years later Austria altered its law retrospectively with the effect that the applicant’s voluntary contributions were deemed to have been made towards a supplementary pension less valuable to him than if they had been treated as further contributions towards his basic pension. The opinion of the Commission was that there had been no infringement of his rights under Article 1. It held:

“29. Assuming that the payment of contributions to an old-age insurance scheme gives rise to a right safeguarded by Article 1 of the First Protocol, the question arises whether this right simply consists in being entitled as a beneficiary of the social insurance scheme to any payments made by the fund, or whether it relates to the payment of a particular sum calculated, for example, according to the actuarial rules. The Commission considers that the interpretation of Article 1 of the First Protocol justifies, at most, the first of these solutions.

30. Now, whereas it is conceivable that the right to be a beneficiary of an old age insurance system to which one has paid contributions is a right of ownership guaranteed by Article 1 of the First Protocol, the same is not necessarily true where the exact amount of the pension is concerned. The Commission considers that even if it is assumed that Article 1 of the First Protocol guarantees persons who have paid contributions to a social insurance system the right to derive benefit from the system, it cannot be interpreted as entitling that person to a pension of a particular amount.

31. The operation of a social security system is essentially different from the management of a private life insurance company. Because of its public importance the social security system must take account of political considerations, in particularly those of financial policy. It is conceivable, for instance, that a deflationary trend may oblige a State to reduce the nominal amount of pensions. Fluctuations of this kind have nothing to do with the guarantee of ownership as a human right. In the case in point, it was the harmonisation of social security systems on a bilateral, if not European basis, that brought about a similar result for the applicant.

32. It is true that, in some cases, a substantial reducing of the amount of the pension could be regarded as affecting the very substance of the right to retain the benefit of the old age insurance system. However, in the present case, this problem does not arise because the difference of which the applicant complains amounts to 97.70 schillings, that is to say approximately 3% of his pension.”

20. Mr Coppel argues powerfully that in this regard Ms Reynolds has an even weaker case than Mr Müller because she is not the victim of retrospective legislation which could be said to have deprived her of something which she had been led to expect to receive; or, put another way, that throughout^* the period of her making national insurance contributions, the law was clear that any JSA(C) paid referable to them would be lower while she remained under 25 years old. Mr Coppel cites Coke v UK above in which the Commission held that, in that widows who had married army servicemen after their retirement had never expected to be paid an occupational widow’s pension, its non-payment could not be said to be an infringement of their rights under Article 1.
21. In my view the only way in which Mr Gill can avoid the effect of the decision in Müller, which despite its age I propose to follow, is to mount his second formulation of Ms Reynolds’ claim (which I will address in Section D): namely to bring Article 14 of the Convention into his argument and to submit by reference to it that the enjoyment of her right to JSA(C) under Article 1 should be uninfected by discrimination on ground of age. I do not see how, without reference to Article 14, he can mount a contention that Ms Reynolds had a right to be paid £52.20 per week. Mr Gill seeks to distinguish the case of Müller on the basis that in the present case the controversial reduction is 21%, not 3%. But, to adopt the terminology in paragraph 32 of that decision (set out in paragraph 19 above), I cannot agree that even the larger reduction affects the very substance of the right. He also relies on the decision of the Court of Appeal in Aston Cantlow PCC v Wallbank [2001] 3 WLR 1323, in which the unlawfulness of a levy to pay for church repairs raised upon the lay owners of land historically denominated as rectorial was collected from Article 1 standing alone as well as from Article 14 in conjunction with that article. But the levy, in of course a finite amount, was held (at 1336C) to be a tax operating entirely arbitrarily. So in my view the problem of defining the nature of the Convention “possession” enjoyed by the holder of a right to payment out of a state fund (or, considered from another angle, the nature of the Convention “deprivation” of whatever possession such a holder enjoys) is not resolved by reference to that authority.
22. My judgment under Section C logically ends here. But, were I wrong in my conclusion that Ms Reynolds’ claim under Article 1 standing alone fails by reference to the above, I would (indeed it is thus agreed) be required to consider whether the regulatory demarcation at age 25 is “manifestly without reasonable foundation”. Since such a consideration is also required in the next section, where, for reasons already explained, Ms Reynolds’ claim achieves at least somewhat greater legal progress, it seems logical to undertake it there.

SECTION D: THE ALLEGED BREACH OF ARTICLE 14, TAKEN IN CONJUNCTION WITH ARTICLE 1 OF THE FIRST PROTOCOL

23. Article 14 provides:

“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, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

24. I have already held that the entitlement of Ms Reynolds to JSA(C), but not to income support, comes within the ambit of Article 1 of the First Protocol. The Defendant concedes that age is a type of “other status” within the meaning of Article 14. Accordingly Ms Reynolds has a right under that article to enjoy her entitlement to JSA(C) without discrimination on ground of age. She alleges that her right was infringed by the Defendant’s payment to her of only £41.35 per week between 24 October 2000 and 12 January 2001; and, in particular, that the Defendant thereby discriminated against her on ground of age because at that time he would have paid £52,20 per week to a hypothetical person who was aged 25 or more but whose circumstances were identical to hers in every other respect.
25. The Defendant does not accept that a person aged 25 or more would have been in a situation analogous to that of Ms Reynolds during that period. In other words his case is that the difference in age is reflective of other significant differences. He also seeks objectively to justify the demarcation at age 25. I use the word “also” because theoretically the enquiry into whether the situations are analogous precedes the enquiry into justification. But I find the distinction elusive. I consider that it suffices for me to focus on the second enquiry and to ask whether the Defendant establishes objective justification for the demarcation, as being in pursuit of a legitimate aim to which it is proportionate.
26. What should be the extent of this court’s role in answering that question? In particular, what degree of critical scrutiny should it attempt to bring to the arguments advanced by way of justification for the demarcation? Mr Gill fairly concedes that the answer is essentially to be collected from the decision of the European Court in James v UK (1986) 8 EHRR 123 in which the challenge on behalf of the Duke of Westminster to the UK’s leasehold enfranchisement legislation was rejected. In paragraph 46 the court said:

“the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature’s judgment as to what is ‘in the public interest’ unless that judgment be manifestly without reasonable foundation.”

27. It is important to note that the “respect” of which the European Court there spoke was not the respect which a foreign court should pay to national authorities but the respect which any court should pay to national legislatures in the areas of policy there identified. This is made clear in the speech of Lord Hope of Craighead in R v DPP, ex p. Kebilene [2000] 2 AC 326 at 381B-D:

“In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention … [T]he area in which these choices may arise is conveniently and appropriately described as the “discretionary area of judgment”. It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.”

Analogous observations were firmly made by the Court of Appeal in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48 at §69 in relation to the compatibility of legislation which enabled a registered social landlord, performing public functions, to secure eviction merely by service of a notice to quit.

28. In the light of the above guidance I regard it as unnecessary, indeed inappropriate, for me to address the arguments presented by the Defendant by way of justification for the demarcation with the degree of detail into which, drawing upon a statement of an eminent statistician as well as a host of other material, Mr Gill would have me descend. Indeed, as his enthusiastic argument proceeded, I increasingly sensed the incongruity that such a debate was proceeding in court instead of in Parliament. The Defendant accepts that the appropriateness of the demarcation is a subject on which views may reasonably differ but articulates five considerations of policy which allegedly justify it.
29. First the Defendant contends that persons aged between 18 and 24 generally earn less than those aged 25 or more, with the result that, at times when they are not earning, replacement state support should reasonably be at a lower level for the former than for the latter. Mr Gill does not challenge the principle that lower expected earnings might justify a lower level of support. He does, however, challenge the cogency of the evidence said to justify this particular demarcation. He says that the Defendant’s data of average earnings in age-related bands, i.e. 18 to 20, 21 to 24 and 25 to 29, is too imprecise to show any undue increase between ages 24 and 25. He produces data which shows that, while there is an increase between those ages, the increase is more marked between, for example, ages 19 and 20. He also points to the fact that, when setting the threshold for payment of the higher rate under the National Minimum Wage 1998, Parliament chose a demarcation between ages 21 and 22.
30. Secondly the Defendant contends that the majority of single claimants^* of jobseeker’s allowance (and income support) between the ages of 18 and 24 do not live independently and may therefore be regarded as having lower living costs than older claimants. Mr Gill again criticises the Defendant’s data as insufficiently directed to a demarcation between ages 24 and 25. Ironically however his expert’s own data, derived from the General Household Survey 1998 and analysing the percentage of “children”^** of each age between 18 and 30 living in the parental home, indicates a more rapid percentage decline between the ages of 24 and 25 than between any of the other ages in the analysis. Mr Gill’s expert, however, challenges the assumption that, in a context where living costs are limited to essential costs, they are significally lower for those in multi-person households than for those who live alone.
31. Thirdly the Defendant contends that lower rates of support for single claimants aged between 18 and 24 may well have the socially beneficial effect of discouraging them from living independently of their parents or other family members. On any view this argument is highly controversial^***. Mr Gill argues that the alleged social benefits are entirely speculative and that no attempt has been made to weigh corresponding detriments.
32. Fourthly the Defendant contends that, to the extent that in a minority of cases the demarcation causes hardship, other social security benefits mitigate it. For example, in that she was living independently, Ms Reynolds was entitled to housing benefit and council tax benefit in addition to the lower level of job-seeker’s allowance (and, later, income support).
33. Finally the Defendant contends that the good administration of the social security system requires, within reason, that its rules be bright, clear and capable of fast, inexpensive application, rather than that they should try to cater for the individual situation of every claimant and, in so doing, make for such complexity and resultant administrative cost that less is available for claimants over-all. It is clear that, within reason, this consideration can help to justify an impugned provision: Mellacher v Austria (1989) 12 EHRR 391. Mr Gill’s response is not that the line of demarcation is too bright but that it has manifestly been drawn in the wrong place.
34. Both counsel rely on the fact that since 1985, inside and outside Parliament, there has been animated if sporadic debate about the appropriateness of a demarcation for social security purposes between the ages of 24 and 25. Mr Gill points to the strength of criticism of it; Mr Coppel to the fact that, notwithstanding the criticism, Parliament introduced it in 1987, extended it in 1996 and has never subsequently abandoned it. It is plainly an issue of social policy in relation to which Parliament must be afforded a wide area of discretion. Although the onus of establishing justification is upon the Defendant, he has in my judgment laid material before the court which conclusively precludes a finding that the demarcation is manifestly without reasonable foundation. Accordingly justification of the demarcation is established with the result that it is not discriminatory for the purpose of Article 14.

SECTION E: THE ALLEGED BREACH OF ARTICLE 8

35. Article 8 provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

36. Mr Gill concedes that, until the birth of her son, Ms Reynolds did not have a family life. But, throughout the period prior to the birth when JSA(C) and indeed income support were paid to her, she had a private life and a home, respect for both of which was her right under Article 8. His argument is that such right was infringed by payments of JSA(C) and income support at so low a level that her private life was gravely impoverished and her ability to maintain her home, albeit that her rent and council tax were met separately, was substantially impaired. I would not have needed much persuasion of the strain and difficulty which, particularly during first pregnancy, Ms Reynolds must have suffered in having to subsist upon less than £6 per day. In fact, however, she has filed a statement explaining the degree of stringency and alleging that, in the light of her need to pay about £20 per week for gas and electricity and to repay a loan^* at the rate of £10 per week, she was constrained to borrow £4 or £5 per week from her mother and to eat twice a week at her mother’s house in order to make ends meet at the most basic level.
37. In Tucker v Secretary of State for Social Security [2001] EWCA Civ 1646 the Court of Appeal upheld the rejection by Maurice Kay J. of a challenge to the validity of a regulation which deprived a tenant of housing benefit if she was responsible for a child of whom the landlord was the other parent. Part of the challenge was cast under Article 8. In §22 of his unreported judgment Maurice Kay J. said:

“Any attempt to rely upon Article 8 alone to sustain a Convention right to a welfare benefit faces difficulty. The Strasbourg jurisprudence tends not to interpret the obligation on the state to respect family life in such a way as to require financial support.”

38. Thus in 1987, in Vaughan v UK No. 12639/87, the applicant complained to the Commission that his supplementary benefit had not included a component to cover the travelling cost of contact visits to his home on the part of his children. It was held:

“Insofar as the applicant complains that there has been a violation of his right to respect for family life under Article 8 of the Convention, the Commission considers that the right to respect for family life does not impose an obligation on States to provide financial assistance for the purpose of ensuring that individuals can enjoy family life to the fullest.”

39. In my view the Defendant’s failure to fund the travelling costs of Mr Vaughan’s children showed disrespect for his family life more arguably than did the Defendant’s level of support for Ms Reynolds show disrespect for her private life or her home. Not even Mr Gill has been able to convince me that the broadly worded principle in Article 8 is apt to a challenge to the level of a social security payment. Had I come to the contrary conclusion, I would have held, for the reasons set out in paragraphs 26 to 34 above, that the interference with the exercise of Ms Reynolds’ rights under Article 8 was justified.

SECTION F: THE ALLEGED BREACH OF ARTICLE 3

40. Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

41. Mr Gill argues that, in paying Ms Reynolds only £41.35 per week in respect of JSA(C) and thereafter of income support, the Defendant subjected her to degrading treatment. In four paragraphs of her short statement she repeats that she felt that the level of payments degraded her. Although such repetition may represent a degree of forensic contrivance, I can well accept that she felt angry, badly treated and, in a sense, insulted.
42. Regardless of how Ms Reynolds’ felt, does the payment of only £41.35 per week, or, more accurately put, the failure to pay her more than £41.35 per week, thus infringe her rights under Article 3? In Husain v Asylum Support Adjudicator 5 October 2001, as yet unreported, Mr Justice Stanley Burnton held that the withdrawal of all support from a destitute asylum-seeker because of his misconduct constituted inhuman punishment or treatment. But he pointed out that “treatment” had to be construed in context, namely after “torture” and before “punishment”, and, like them, seemed to denote a positive act. He declined to decide whether a mere failure to provide support for the destitute, as opposed to its positive withdrawal, engaged Article 3. On any view, however, the payments to Ms Reynolds took her well outside the realms of destitution. Mr Gill concedes an absence of authority helpful to him but invites me to contribute in a small way to what he predicts will be the proper development in the interpretation of Article 3 in this regard. I decline his invitation. In my view Article 3 proscribes ill-treatment of a depth which the level of payment to Ms Reynolds wholly fails to reach.

SECTION G: THE ALLEGED UNLAWFULNESS AT COMMON LAW

43. Mr Gill argues that, irrespective of the rights of Ms Reynolds under the Convention, the court should find the demarcation between the ages of 24 and 25 set by the regulations of 1987 and 1996 to be irrational and so hold them to be ultra vires at common law.
44. In O’Connor v Chief Adjudication Officer [1999] 1 FLR 1210F-1211B, at 1210, being a passage recently endorsed by the Court of Appeal in Javed v SSHD [2001] 3 WLR 323 at §50, Auld LJ said:

“Irrationality is a separate ground for challenging subsidiary legislation … [But] where the minister has acted after reference to Parliament, usually by way of the affirmative or negative resolution procedure, there is a heavy evidential onus on a claimant for judicial review to establish the irrationality of a decision which may owe much to political, social and economic considerations in the underlying enabling legislation. Often the claimant will not be in a position to put before the court all the relevant material bearing on legislative and executive policy behind an instrument which would enable it with confidence to stigmatise the policy as irrational. Often too, the court, however well informed in a factual way, may be reluctant to form a view on the rationality of a policy based on political, social and/or economic considerations outside its normal competence.”

45. The elasticity inherent in it enables the concept of rationality to stretch, I believe, to its widest in the field of levels of social security benefits. In the light of my conclusion in paragraph 34 that the demarcation is justified, the charge of irrationality must swiftly be rejected.
46. Accordingly Ms Reynolds’ application is dismissed.
- - - - - - - - - -

MR GILL: My Lord, I have had an opportunity to discuss with my learned friend issues as to costs and so on. There is no application on the other side, one would not expect there to be an application, so may we formally have no order as to costs, save the usual detailed assessment of the claimant's costs?PRIVATE 

MR JUSTICE WILSON: That is granted.

MR GILL: I am grateful. That leaves only the question of permission to appeal. My Lord this, I think, is the first case in which the issue of age discrimination or indeed possibly even discrimination in the context of social security benefits has been considered in courts in this country. True there have been previous cases as we saw in the course of the argument in Strasbourg which have dealt with it prior to the Human Rights Act, but post the Human Rights Act there certainly has not been a case in the jurisdiction. So the matter is of some importance to a large number of cases, not just the context of age discrimination generally but discrimination generally.

I note also -- something I only learnt yesterday evening and I only saw the judgment this morning - that there was a judgment from Moses J in a case called Hooper where he perhaps, and I have only had a short period of time in which to skip through the judgment, but he appears to have taken a slightly different approach to Article 8 upholding in paragraph 33 of his judgment that there is further support for the proposition that financial planning for the future falls within the scope of family life. Your Lordship of course held in our case that Article 8 was not engaged because of the level of social security benefits could not engage it. Both judgments appear, so far as I can tell, and as I say I have not had much of a chance to read Moses J's judgment, to come to a broadly similar view on justification but nevertheless that still leaves open the question of what is the extent of the scrutiny the court levies on such matters and Moses J did of course refer to the case of Seamore Smith which is a well-known case which involved some years ago, but not too long ago, questions as to whether the government was right in setting the qualification limit for unfair dismissal at one year or two years, which involved a great deal of evidence going back to the mid-eighties about the social conditions giving rise to that distinction. The case went up and down the courts, including Europe, and ultimately the House of Lords held that the government could not be criticised for drawing the line where they had done. But, and this is the difference, the scrutiny that the courts gave in that case was, I would respectfully suggest, much greater than the more reticent approach that I detect in your Lordship's judgment and so this case, I respectfully submit, ought to go to the Court of Appeal, not just because there are firstly compelling reasons - that is the widespread impact and so on, the need for there to be a decision of the Court of Appeal on matters of this sort - but secondly also because there is a real prospect of success in relation to the application of the justification test.

My Lord, those are my submissions in support of the application.

MR JUSTICE WILSON: Thank you very much, Mr Gill. Miss Proops?

MISS PROOPS: My Lord, the respondent does resist the application for permission. I should say that I have not had an opportunity to have a look at Moses J's decision in the Hooper case so I cannot really comment on that. But we would say that in any event the judgment discloses no error of law - the judgment which you have produced - and in any event my instructions are that the correctness of the legal test has never been an issue in this litigation, rather what has been in issue is the results which would flow from the application of those tests to the facts of this case. In those circumstances we would say it is appropriate that permission should be refused.

MR JUSTICE WILSON: Thank you. Mr Gill, anything to come back on there?

MR GILL: My Lord, I certainly would in the realm of application, of course, but that sometimes shades over in how one understands the test. There was no dispute between Mr Coppel and myself on the test. How one applies it to this sort of case and how one applies it to the Seamore Smith type of case is where, I respectfully submit, there is an error, a potential error disclosed on which there is a need for the Court of Appeal judgment.

MR JUSTICE WILSON: Mr Gill must be right to say that this issue, had it been resolved the other way, would have had very wide ramifications in our society. To that extent one would have to agree with him that this was potentially a big and important case. But is that enough for me to found permission to appeal? The rules are that I have to consider that the appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard. Subject to the better view of the Court of Appeal, I am confident that the appeal has no real prospect of success. I am not sure that the wider factors relating to the enormous impact of a contrary decision represent a compelling reason within the second part of the test and I consider that it would be preferable for me to let the Court of Appeal decide whether Mr Gill's proposed appeal should be permitted to proceed.

Accordingly, I refuse permission to appeal. Thank you very much.

Note 1   (a) The sum paid to Ms Reynolds in respect of jobseeker’s allowance would not have been different if it had been income-based. (b) The sum paid to her by way of income support was increased in April 2001 in line with annual social security increases across the board. The increase has no bearing on the issues raised.    [Back]

Note 2   There is no need to address the provisions relating to JSA(1B) which also provide for age-related amounts, including a demarcation at age 25.    [Back]

Note 3   But §15.013 seems to be to the contrary.    [Back]

Note 4   or virtually throughout: Ms Reynolds may have begun to make contributions slightly before the Act of 1995 came into force.    [Back]

Note 5   excluding single parents, who are not subject to age-banding.     [Back]

Note 6   not just benefit claimants.     [Back]

Note 7   On 24 April 1989, when it was articulated by a minister in Parliament, Mrs Gwyneth Dunwoody interjected that it was disgraceful (Hansard Col. 771)    [Back]

Note 8   but, asks Mr Coppel, taken out for what purpose?    [Back]