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04/11/2008

Rough Sleepers, Rough Justice

R (RJM) (FC) v Secretary of State for Work and Pensions [2008] UKHL 63

This House of Lords judgment is now just under two weeks old, but I think it is still worthy of comment here.  It is a discrimination case dealing with benefits and rough sleepers, but has some important implications in much broader areas, at least in my opinion.  It is somewhat tangential to what is usually covered, so we would doubtless welcome comments on whether this is of interest to our astute and loyal band of readers.*

The facts, briefly (some of them from the CA decision):

The claimant, RJM, suffers from mental health problems.  During the period before 2004 he received income support, including a disability premium.  In August 2004 RJM became homeless, i.e. street homeless.  Under the Income Support (General) Regulations 1987 those without accommodation are not entitled to receive the disability premium and that part of his payment was consequently stopped.  The difference to RJM was about £23 a week.

Legal Framework

The criteria for entitlement to Income Support are contained in s. 124 of the Social Security Contributions and Benefits Act 1992:

(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.

The applicable amounts are set out in regulation 17 of the Regulations:

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…

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).  Therefore, a claimant without accommodation has no entitlement to the premiums that they would otherwise be entitled to under regulation 17(1)(d), which as mentioned above was worth about £23 a week to RJM.

RJM claimed that the Regulations are incompatible with article 14 of the ECHR and article 1 of the First Protocol to the ECHR (A1P1), which everyone will know, but for ease of reference they are, as far as is relevant:

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 – A1P1

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 – Art 14

The Claim

There were three issues in the case before the House of Lords :

1. Does disability premium come within the scope of A1P1?
2. Is homelessness covered by “other status” in article 14?
3. If the answer to 1 and 2 is “yes”, is any discrimination justified?

Their Lordships (Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Mance and Lord Neuberger of Abbotsbury) unanimously agreed that all three questions could be answered “yes”, thereby dismissing the appeal.

Lord Neuberger gave the leading judgment.  Lords Walker and Mance chipped in with some supplementary points.

A1P1

In the CA Ms Lieven QC for the Secretary of State had conceded that RJM’s claim was covered by A1P1, although she criticised the ECtHR’s reasoning.  She also stated that this concession would be repeated in the House of Lords.  Mr Howell QC, now leading for the Secretary of State in the House of Lords thoroughly withdrew this concession.

Lord Neuberger discussed a series of ECtHR cases.  In Kopecky v Slovakia (2005) 41 EHRR 944 it was said that A1P1 “does not guarantee the right to acquire property”.  Therefore, for a claim to come under A1P1 the claimant needed to own, or at least enjoy a legitimate expectation to, property.  There could be no legitimate expectation unless there was a “currently enforceable claim that was sufficiently established”.  The logical conclusion, expressed in von Maltzan v Germany (2006) 42 EHRR SE92, is that if A1P1 is not engaged then article 14 can not apply.

However, in Gaygusuz v Austria (1996) 23 EHRR 364, the ECtHR had held that an Austrian scheme of emergency assistance was covered by A1P1, although this was partly based on the fact that entitlement to the benefit was “linked to the payment of contributions to the unemployment insurance fund”.

But in Stec v UK (2005) 41 EHRR SE295, the ECtHR decided that it was “artificial to hold that only benefits financed by contributions to a specific fund fall within the scope of [A1P1].”  Furthermore:

“… 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 … Although [A1P1] 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 art 14.”

Mr Howell invited their Lordships to refrain from following Stec and to apply the Kopecky and von Maltzan line of reasoning.  Lord Neuberger rejected this invitation saying (at [31]) that Stec was:

“a carefully considered decision, in which the relevant authorities and principles were fully canvassed, and where the Grand Chamber of the ECtHR came to a clear conclusion, which was expressly intended to be generally applied by national courts.  Accordingly, it seems to me that it would require the most exceptional circumstances before any national court should refuse to apply the decision.

[32] I do not consider that any exceptional circumstances can fairly be said to arise here.”

Mr Howell accepted that it was illogical to distinguish between funded social welfare payments (the Gaygusuz scenario) and unfunded social welfare payments (the Stec scenario).  Accordingly, he sought to argue that both types were outside of the scope of A1P1.  Therefore, not only was Stec wrongly decided, but so was Gaugusuz and the line of cases that followed on from that.  Lord Neuberger had little difficulty in agreeing with Mr Drabble QC, on behalf of RJM, that it was “inconceivable that Gaygusuz would not be treated as good law by the ECtHR.”

Homelessness and Art 14

The Secretary of State argued that in order to succeed under article 14 a claimant must show that they are being discriminated against on the grounds of a “personal characteristic” and homelessness does not count as such a characteristic.  On behalf of RJM it was argued that the ECtHR’s jurisprudence establishes that there is no requirement for an applicant to show that they are being discriminated against on the grounds of a “personal characteristic”.  Alternatively, homelessness is such a characteristic, so any such requirement is satisfied.  It may be remembered that the phrase “personal characteristics” comes from Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711.

In Lord Neuberger’s opinion the first part of the claimant’s argument failed.  There was no case to support this proposition.  Mr Drabble sought to rely on a number of ECtHR decisions where article 14 claims had been dismissed without deciding whether the alleged discrimination was on the grounds of a personal characteristic.  However, this was dismissed by Lord Neuberger at [38]:

“The absence of any reference in those judgments to the need for the alleged discrimination to be on grounds of a personal characteristic is just as easily explained on the grounds that it was unnecessary to consider the point, as the claim failed on other grounds, or that the point was irrelevant as there was no dispute on that issue in the particular case.”

However, on the issue of whether homelessness was a personal characteristic so as to qualify as “other status” under article 14, Lord Neuberger sided with RJM.

It should be noted that the ‘homelessness’ in this case is the much narrower definition that most members of the public probably associate with the word, rather than the Housing Acts definition.  Lord Walker at [4] refers to the ODPM’s figures of 459 rough sleepers in England and Wales in 2005 (this is probably a mistake and should refer to England only – according to the Department of Communities and Local Government there were 483 people sleeping rough in England in June 2008.  In Wales there was between 128 and 165 people sleeping rough in March 2008.  Of course, I’m sure that we all know that these figures are to be taken with a pinch of salt).

Lord Neuberger noted that a wide and generous interpretation should be applied to the words “or other status” in article 14.  He cited the examples of military rank, as against civilian; residence or domicile; and previous employment within the KGB.  Furthermore, the concept of “personal” in the phrase suggested that one should be concentrating on what somebody is rather than what is being done to them.

Lord Walker said that the phrase “personal characteristics” from Kjeldsen is not a precise expression and to his mind “a binary approach to its meaning is unhelpful.”  Anyone interested in article 14 should take a couple of minutes to read [5] in its entirety, but in essence “personal characteristics” are like a series of concentric circles.  Those closest to the centre are those characteristics that are innate, largely immutable and closely connected with an individual’s personality.  Other acquired characteristics are further out in the circles.  This is important as the “more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify”.

In Lord Neuberger’s opinion the CA’s reasoning on this point was flawed as they had been influenced by the fact that being homeless was a voluntary choice.  As Lord Neuberger acknowledged that in itself is quite clearly not true in every case, but his Lordship preferred to concentrate on whether voluntariness was determinative:

“I do not accept that the fact that a condition has been adopted by choice is of much, if any, significance in determining whether that condition is a status for the purpose of Article 14.” [47]

The CA was also influenced by the fact that homelessness had not been recognised as a status by the ECtHR, but Lord Neuberger viewed that as a neutral point as the issue did not appear to have been raised.

Justification

This left the question of whether in the discrimination could be justified.  The Secretary of State advanced two arguments to justify the practice.  Firstly, the Secretary of State should encourage the disabled homeless to seek shelter, rather than making it easier, in financial terms, for them to remain without accommodation.  Secondly, those without accommodation are less likely to require a supplement than those who do have accommodation.  In the words of the Secretary of State’s witness:

“Claimants in accommodation have a range of expenses and financial pressures related to that accommodation that claimants without accommodation do not have.”

While much can be said against these attempts at justification, in Lord Neuberger’s opinion neither of them are unreasonable.  He referred to the fact that “policy concerned with social welfare payments must inevitably be something of a blunt instrument, and social policy is an area where a wide measure of appreciation is accorded by the ECtHR to the state” [54] and that this “is an area where the court should be very slow to substitute its view for that of the executive” [56].

Lord Mance stated that he found the issue of justification difficult, but that, with some residual doubt, he had come to the conclusion that the discrimination in the Regulations had legitimate aims and was sufficiently proportionate to be justified.

The ECtHR and domestic doctrine of precedent

Lord Neuberger then dealt with the situation where the Court of Appeal is faced with an otherwise binding decision of the House of Lords or an earlier Court of Appeal, but there is a subsequent conflicting ECtHR judgment.  In the process he laid down a slight adjustment to the famous principles in Young v Bristol Aeroplane Co Ltd [1944] KB 718.

Where the otherwise binding decision is from the House of Lords then, unless there are wholly exceptional circumstances, the CA should follow the HL decision.  Effectively then there is no change to the position in Kay v LB of Lambeth [2006] UKHL 10.  For exceptional circumstances Lord Neuberger referred back to Lord Bingham at [45] in Kay.

Where the otherwise binding decision is one of its own then the CA is “free (but not obliged) to depart from that decision.” [66]

Interestingly s. 2(1)(a) of the Human Rights Act 1998 is referred to by Lord Neuberger at [34] as part of the discussion on Stec, but does not get mentioned at all in this discussion on precedent.

Lords Hope, Rodger and Mance all agreed with Lord Neuberger and Lord Walker.

Counsel was Richard Drabble QC and Zoë Leventhal for RJM; John Howell QC and Natalie Lieven QC for the Secretary of State; and Rabinder Singh QC made written submissions on behalf of the Equality and Human Rights Commission.

*As this is the first report I have written up for Nearly Legal I am hoping that flattery will get me everywhere.

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.

4 Comments

  1. Jim Paton

    This is certainly the sort of case which should be covered. The abuses and discrimination rough sleepers undergo is rarely litigated. This is an important but neglected aspect of homelessness. Housing Law, in my view, certainly includes No Housing Law.

    Pity about this decision, though. Thank you for preparing us for the let-down. I would otherwise have been quite excited up to “Justification”. It may still be of future relevance on the issue of “personal characteristics”.

    The published figures for the numbers of rough sleepers should be taken with a large bucket of salt rather than a pinch. They count those using only one of the strategies adopted by rough sleepers, and that very inexpertly and incompletely. Concealment is the essence of most of the other strategies.

    Reply
  2. chief

    @Jim Paton: thanks. I agree that this may be useful for ‘personal characteristics’ in the future. The clarification on benefits and A1P1 is also welcome. I am currently putting something together on a quite different example of discrimination in the payment of benefits.

    Coincidentally, just after I posted this I saw a report on the Simon Community’s latest count, which suggests a 40% increase in rough sleepers in London since April.

    Fans of the intersection of Art 14 and A1P1 should also check out Carson in the ECtHR, paras 67 to 82. Art 8 was also raised in this case, which dealt with pensions. There is a brief dissenting opinion from Judge Garlicki. I haven’t given this much consideration so far, but my first thought is that the majority is right on this one. Carson is pretty off topic for Nearly Legal, so I’ll button up about it now.

    Reply
  3. NL

    @chief: Please don’t. There is a really interesting line of A1P1 ECtHR reasoning that is transferring, or potentially transferrable to housing matters. I reported on one here

    http://nearlylegal.co.uk/2008/04/post-mortem-revival-of-tenancy/

    Incidentally, I believe this case, LB Southwark v Austin, is to be heard at the Court of Appeal any day now.

    Reply
  4. J

    @NL – Austin v LB Southwark is being heard on 13 Nov 08 in the CA (source – Richard Drabble QC at the PBA conference, earlier today)

    Reply

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