Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL File No: CIS 3282/07

Administrative Appeals Chamber

27 July 2010

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

SOCIAL SECURITY ACTS 1992-2000

APPEAL FROM DECISION OF APPEAL TRIBUNAL

Appellant: [the claimant]

Respondent: Secretary of State for Work and Pensions

Claim for: Income Support

Appeal Tribunal: Birmingham

Tribunal Case Ref: 175/06/00991

Tribunal date: 6 July 2007 (reasons issued 20.08.07)

DECISION OF THE UPPER TRIBUNAL

The claimant’s appeal is dismissed and the appeal tribunal’s decision of 6 July 2007 confirmed as correct in law. The claimant’s previous entitlement to income support was properly reduced to nil from 10 April 2006 pursuant to the Social Security (Hospital In-Patients) Regulations 2005 SI No 3360.

REASONS

Mr P L Howell QC:

1. This long delayed appeal on behalf of the claimant must be dismissed, as in my judgment the authorities that have been decided since I originally gave leave for it to be brought establish conclusively that there was no error of law in the decision of the appeal tribunal (Mr B Barry, chairman, sitting alone on 5 April and 6 July 2007) confirming the Secretary of State’s determination of 10 April 2006 that the claimant was not entitled to income support on and from that date.

2. What this case has been about is explained (with a clarity and economy of expression it is quite impossible to improve on) in the chairman’s statement of findings and reasons issued on 20 August 2007, as follows:

“2. The facts are not in dispute. [The claimant] was charged with manslaughter in September 2004 and was detained under a hospital order with restriction. On 23 December 2004 he was transferred to Broadmoor Hospital under Sections 48 and 49 of the Mental Health Act 1983. On 23 March 2005 he was sentenced to life imprisonment for manslaughter and has since then remained at Broadmoor Hospital following a transfer direction under Sections 47 and 49 of the Mental Health Act 1983.

3. The scheme of the legislative provisions governing entitlement to Income Support is to identify classes of person who are entitled to that benefit. Persons within those classes who satisfy the means test are allotted an applicable amount which governs how much Income Support they are entitled to, if any. Certain categories of claimant are allotted an applicable amount of nil, and this has the effect that even though they otherwise may satisfy the conditions of entitlement, they receive no Income Support.

4. The general rule is that prisoners as defined in the Income Support (General) Regulations 1987 have an applicable amount of nil. Under the law as it stood before April 2006 persons who would otherwise be prisoners did not count as prisoners for Income Support purposes for as long as they were detained in hospital under the Mental Health Act 1983. This rule was changed in respect (inter alia) of persons detained under Section 47 of the Mental Health Act 1983 by Regulation 4 of the Social Security (In-Patients) Regulations 2005 (“the New Regulations”), which came into effect in relation to each individual beneficiary on the first day of the first benefit week commencing for that beneficiary on or after 10 April 2006.

5[-7]. [The claimant] received the level of Income Support appropriate to a hospital in-patient until the decision currently under appeal was taken. The effect of that decision was to deny him Income Support from and including 10 April 2006. .. in confirming the substance of the decision I direct that it be treated as a decision to supersede the relevant awarding decision so as to substitute an applicable amount of nil, the ground for supersession being a relevant change of circumstances. ... in the absence of challenge, I have proceeded on the assumption that the Decision Maker correctly identified 10 April as the appropriate day under Regulation 4 of the New Regulations.

8. It is common ground that if the new Regulations are valid the decision under appeal is not open to challenge.

9[-12]. I am invited by [the claimant’s] Counsel to disapply Regulation 4 of the new Regulations on one or more of three grounds. First it is submitted that the provision is ultra vires under domestic law on the grounds of irrationality. ... Second, it is submitted that Regulation 4 of the new Regulations should have been referred to the Social Security Advisory Committee under the provisions of the Social Security Administration Act 1992, and that it should be struck down as ultra vires for failure to comply with this procedure. ... Finally, it is submitted that the provision in question is incompatible with Article 14 of the European Convention on Human Rights on the basis first that it improperly discriminates between [the claimant] and other psychiatric patients, and secondly on the ground that it fails to discriminate between him and prisoners not receiving treatment under the Mental Health Act 1983. It is argued that Article 1 of Protocol 1 of the Convention is engaged in the present case, and that a right to Income Support should be regarded as property within the meaning of that Article following the case of Stec. It is this third challenge which has been most fully argued before me.”

3. The chairman rejected all three grounds. His decision on the first two has (rightly) not been challenged in this appeal which was brought against it solely on the third, arguing that the reasoning was insufficient and the claimant ought to have been held the victim of unlawful discrimination by reference to his status as a convicted prisoner detained as an in-patient in hospital, contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol 1. On 28 November 2007 I granted leave to appeal so as to enable that point to be pursued, as similar discrimination issues seeking to challenge the validity of the same legislation were already raised in other proceedings both here and in the Administrative Court, which these were stayed to await.

4. As will be apparent, the period of the stay that turned out to be needed was a prolonged one; but it is now common ground following the decision of the Court of Appeal in R(D) and R(EM) v Secretary of State for Work and Pensions [2010] EWCA Civ 18, [2010] 1 WLR 1782 that the claimant, who is not within the special category of “post-tariff lifer” there held entitled to continuing income support, can no longer pursue the original ground of appeal in view of the Court of Appeal’s binding decision that there is no discrimination or breach of Article 14 in his circumstances: see the express concessions in his counsel’s written submission of 4 May 2010 at page 336.

5. However that submission now seeks for the first time to raise an entirely new ground of challenge to the removal of the claimant’s right to income support, not previously suggested or relied on either before the appeal tribunal or before me, even though the same counsel and solicitors have been acting for the claimant throughout. This is that the cessation of his right to the benefit under the domestic law on 10 April 2006 amounted, as is now suggested, to a direct breach of Article 1 of Protocol 1 in that it deprived him of a “possession”. The submission avers that the Court of Appeal did not rule on the question of whether the change in the law on that date amounted to “a breach of a property right guaranteed under Article 1 of Protocol No. 1 when read on its own”; which is factually correct so far as it goes, though the most obvious answer is that they did not do so only because no one seems hitherto to have thought such a point worth raising, in those proceedings any more than these.

6. Whether or not it is strictly right to allow such an entirely fresh ground of appeal to be introduced into the proceedings at this stage (it is outside the scope both of the original notice of appeal and of the Registrar’s direction of 22 March 2010 inviting submissions in the light of the Court of Appeal decision) it must in my view be rejected. I have taken account of what is said in the submission of 4 May 2010 advancing the new argument at pages 335-341, and the further rejoinder dated 13 July 2010 at pages 377-9, but in my judgment it is ill-founded and unsustainable, for the reasons summarised in the response by Mr S Brown for the Secretary of State dated 10 June 2009 at pages 342-5. The correct principle, with which it is inconsistent, is that identified in paragraphs 51-53 of the decisions of the Court of Human Rights in Stec and ors v UK , on admissibility at (2005) 41 EHRR 295 and on the substance of the complaint at (2006) 43 EHRR 47, that the protection of Article 1 of Protocol 1 attaches only to those welfare benefits to which an individual has an assertable right under domestic law, not anything wider. The Article does not include a right to acquire property nor does it restrict a Constracting 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.

7. It must in my judgment follow that (absent discrimination contrary to Article 14, which is now conceded to be out of the question here) the ability of a State to legislate so as to alter the conditions of entitlement to welfare benefits for periods in the future is unrestricted by Article 1, even though the result is that some people who had hoped they would go on acquiring possessory rights to cash welfare benefits in those future periods, having had them for periods in the past, may not after all do so. The fact that in none of the major cases where the effect of Article 14 on the withdrawal or restriction of social security or social welfare benefits has been considered has it been thought possible to mount a (potentially much simpler) challenge on the basis of the loss of entitlement amounting to “deprivation” in direct breach of Article 1 of Protocol 1 must be of powerful significance. More than that, the idea is quite inconsistent with the approach of the courts in Stec (where benefits already awarded for future periods were being taken away by legislation, so if ever there was a case for the point to succeed that was it); R(Carson) v SSWP [2005] UKHL 37, [2006] 1 AC 173 (esp. per Lord Walker at 197F-G, paras 74-5 noting and apparently regarding as axiomatic that claims of “deprivation” and straight violation of article 1 of the First Protocol could not be brought in such circumstances and the Commission had often dismissed them); and R(D) and R(EM) v SSWP supra, (esp. per Carnwath LJ at paragraphs 16-17 citing R(RJM) v Secretary of State [2009] AC 311 per Lord Neuberger at para 30, again emphasising that Article 1 of Protocol 1 does not include the right to receive a social security payment of any kind, and the only question to be considered is whether whatever rights the domestic legislation does confer are compatible with Article 14).

8. I consider I am in any event bound by authority to reject the claimant’s last-ditch submission since although as already noted his counsel’s submission is correct in saying the argument of a direct violation of Article 1 Protocol 1 in relation to social security or welfare benefits for future periods was not pronounced on by the Court of Appeal in R(D) and R(EM) v SSWP, that Court had in fact already done so, and unanimously rejected it, some years earlier in Carson [2003] EWCA Civ 797, [2003] 3 All ER 577. See the judgment of Laws LJ, with whom both the other members concurred, at paragraphs 17-23, where the argument was specifically considered and rejected as contradictory to established ECHR authority and to the principle that the Article does not confer any right to acquire property, assuming in the claimant’s favour for this purpose (this being before Stec) that rights to social security benefits could constitute possessions.

9. To the extent that it is necessary to do so I also accept and adopt the submission on behalf of the Secretary of State that the legislative choices embodied in the changes in the regulations from 10 April 2006 fall wholly within the margin of appreciation allowed to a contracting State in the implementation of its legitimate social and policy aims. As such they are not matters with which a court would or could interfere even if a prima facie case of direct infringement of Article 1 of Protocol 1 were (contrary to my own view) said to be made out on the facts of the present case. The reasons held to give rise to justification of any differential treatment in relation to the Article 14 discrimination claims in Stec (esp. paragraphs 51-52) and in R(D) and R(EM) v SSWP (paragraph 27) must in my judgment apply a fortiori to any question of what can be justifiable under the Protocol as a reasonably founded measure to limit or curtail possessory rights “in the public interest and subject to the conditions provided by law”. These are matters which in the words of Carnwath LJ, referring specifically to the circumstances when payments should or should not be made to prisoners, are

“essentially a matter of social policy, on which the decision of the state is to be respected, short of irrationality (or in the terms of Stec’s case 43 EHRR 1017, a decision which is ‘manifestly without reasonable foundation’.”)

10. There is in my judgment no question of the legislative measures in question here being within that last description, or outside the area of legitimate and justifiable policy choice for the State to make. If any justification for them should be necessary in the context of the First Protocol, it is therefore in my judgment made out. I do not accept the suggestion in the final observations on behalf of the claimant that they constitute, or come anywhere near, the kind of case where a court could or should intervene to substitute some different view of its own of what would be proportional or a “fair balance”, by reference to what was said in the majority decision of the ECtHR on the different facts of Moskal v Poland (application No 10373/05, judgment of 15 September 2009) or otherwise.

11. For those reasons this appeal, which has been valiantly pursued on behalf of the claimant by the Paddington Law Centre and by counsel, must be dismissed.

P L Howell

Judge of the Upper Tribunal

27 July 2010

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