Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                              Appeal No.  CA/905/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

The appeal is dismissed.  The decision of the First-tier Judge did not involve the making of an error of law.

REASONS FOR DECISION

1       The appellant appeals the First-tier Tribunal’s decision of 4/12/08 heard under reference 175/08/01530 with my permission.  The appellant submits that the tribunal’s decision, which was to refuse him Attendance Allowance because his care needs were insufficient, was wrong.  In his submission, even though he first applied for a disability benefit at age 71, he should have been entitled to claim Disability Living Allowance for which the entitlement conditions are wider than those for Attendance Allowance.  He submitted that he was discriminated against unlawfully through the age ceiling of 65 applicable to claimants wishing to claim DLA.  The Secretary of State does not support the appeal, citing [2009] UKUT 37 (Administrative Appeals Chamber), a decision by Upper Tribunal Judge Levenson. 

2       Under section 75 of the Social Security Contributions and Benefits Act 1992, no person is entitled to either component of a disability living allowance for any period after he attains the age of 65, otherwise than by a virtue of an award made before he attains that age, unless he falls within certain exceptions made under the Social Security (Disability Living Allowance) Regulations 1991.  None of those provisions are applicable to this appellant.  Unless, therefore, the appellant can successfully argue that the age ceiling in the Social Security Contributions and Benefits Act 1992 breaches one of his rights under the European Convention on Human Rights and that a tribunal has a power to interpret the law to avoid that breach, the refusal of benefit must stand. 

3       Human Rights Act 1998

Under section 6(1) of the Human Rights Act 1998, it is unlawful for a tribunal to act in a way which is incompatible with a person’s rights under the European Convention on Human Rights. Where primary legislation (i.e. an Act of Parliament) appears to be incompatible with those rights, the tribunal has a duty to read the law in a way which is compatible with Convention rights. This is subject to an important limitation:  If the incompatible provision in the primary legislation is such that the tribunal cannot act differently, the tribunal does not act unlawfully in applying the law as it stands:  section 6(2).  I consider that the wording of section 75 of the Social Security Contributions and Benefits Act 1992, which is primary legislation, cannot be read in any other way than to prohibit an award of DLA to a claimant who makes his first claim for DLA after attaining the age of 65.  It follows that, even if I had come to the conclusion that there was discrimination against the appellant which constituted a breach of his Convention rights, I would have no power to remedy the breach.  Neither does the Upper Tribunal have the power to make a declaration of incompatibility of the impugned provision.  Under section 4 of the Human Rights Act 1998, this power is confined to higher level courts. 

The relevant Convention provisions

4       I will go on to the substantive issue in the appeal, in case the case goes further.  For the purposes of the present appeal, the main provisions of the Convention are as follows:

Article 8:

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

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.

Article 14:

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

Article 1 of Protocol 1:

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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The claimant’s case

5       The appellant has simply stated that the law is discriminatory and wrong.  I have put his appeal into the legal terms which I think reflect his position:  he believes that this age discrimination cannot be justified and that the relevant sections of the Social Security Contributions and Benefits Act 1992 should be read so as to avoid that effect.  

Article 14 and the Convention rights

6       Article 14 does not stand on its own to provide a right against discrimination.  It only comes into play if another right under the Convention has been ‘engaged’ in the sense that the there has been unlawful discrimination in connection with a right which comes within the ambit of one of the relevant Articles (see e.g. Petrovic v Austria (2001) 33 EHRR 14).

Article 8

7       The Secretary of State argues that Article 8 is not engaged at all because that State has no obligation to provide a home or financial assistance to support a person’s family or private life.  While I agree that there is no direct breach of Article 8 on the basis set out by the Secretary of State, I am less convinced that Article 8 is not engaged.  ‘Engagement’ represents a lesser standard than a breach, and this is the standard applicable to Article 14, which I cite below.  Insofar as the mobility component of DLA is concerned, Upper Tribunal Judge Levenson held in R(DLA)1/09 that Article 8 was engaged because the availability of the mobility component of DLA to a person who is virtually unable to walk (the main non age-related condition of entitlement to higher rate mobility component) ‘might make all the difference between being housebound and being able to pay for transport to visit family and others and to lead a more autonomous life.’  He considered that both components of DLA probably fell within the ambit of this Article ([24])], though I am not convinced that that is true for the care component of this benefit.  It is unnecessary for me to decide this issue because of the conclusion I have come to, and for the purposes of this decision I am content to assume in the appellant’s favour that Judge Levenson is correct, and that Article 8 is engaged. 

Article 1 of Protocol 1

8       In view of the House of Lords decision in R (on the application of RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 AC 311, (RJM), it must be taken as settled that welfare benefits come within the ambit of Article 1 of Protocol 1, whether or not they are contributory benefits.  While the House of Lords confirmed at [31] of RJM that this Article did not include the right to receive a social security payment of any kind, it held that, if a state decides to create a benefits scheme, it must do so in a manner which is compatible with Article 14.  If a person is 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 would have had a right, enforceable under domestic law, to receive the benefit in question: [30] of RJM, per Lord Neuberger, citing Stec v United Kingdom (2005) 41 EHRR SE 295 [54]. 

Article 14: protected status

9       In order for a case of discrimination to be made out, the appellant must show that he has been discriminated against on because he falls within one of the classes expressly stated in Article 14, or on the basis of another relevant status.  ‘Status’ is broadly interpreted as extending to some personal characteristic, though the term ‘personal characteristic’ is itself to be generously interpreted:  RJM ([35] - [43]).  I consider, as did Judge Levenson in R(DLA)1/09 that age is a status capable of being protected under Article 14. 

Article 14 – What is discrimination?

10   In R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173 (Carson), Lord Hoffman defined discrimination as a failure to treat like cases alike, and emphasised that there is no discrimination if the cases are relevantly different; there is discrimination only if the cases are not sufficiently different to justify the difference in treatment.  He identified certain types of status, such as race, caste, noble birth, membership of a political party and gender, upon which discrimination could rarely, if ever, be justified.  On the other hand, discrimination on the basis of other types of status may simply require some rational justification, such as the general public interest, economic or social policy.  The legislature has a wide margin of discretion in the latter category: [14 - 16].  .

11   The characteristic upon which the appellant’s case relies is age, which is not one of the automatically ‘suspect’ characteristics for which there is generally no possible justification for differential treatment.  Accordingly, the difference in treatment may be justified if it pursues a legitimate aim and the method adopted is not disproportionate to that aim.  Belgian Linguistics (No 2) (1979) 1 EHRR 252 at [28]. 

12   The Secretary of State set out the justification for differential treatment in R(DLA)1/09, decided only shortly before the present appeal, in which he pointed to the policy reasons for giving preference to those who are disabled earlier in life, economic statistics and the structure of the complex, interlocking social security scheme as a whole.  Notably, the age restriction of 65 marks the point at which a person becomes entitled to a range of other benefits (including, but not limited to, retirement pension): paragraphs [35] – [36]. 

13   The Secretary of State’s reasons provide a rational justification for the difference in treatment.  I do not see any disproportionality in the adoption of an age related ceiling in entitlement to this benefit in order to ensure that assistance goes first to those who social policy identifies as being most in need, having regard to their disablement earlier in life when their earning capacity is hit hardest.  I have therefore come to the conclusion that, while treating those over the age of 65 differently from those under that age is capable of constituting discrimination, it is justified in the context of DLA and the benefit system which the Secretary of State operates as a whole. 

Conclusion

14   The appeal must accordingly be dismissed on the grounds that (i) the First-tier Tribunal was bound by primary legislation to come to its conclusion and could not have done otherwise.  It did not act unlawfully; and (ii) the discrimination of which the appellant complained was justified and not unlawful.

[Signed on original]                                                S M Lane

                                                                               Judge of the Upper Tribunal

[Date]                                                                     22 January 2010