| Human rights — Right to peaceful enjoyment of possessions — Disability premium — Cessation of payments on ground homeless claimant “without accommodation” — Whether Convention right to peaceful possessions engaged — Whether unlawful discrimination on ground relating to status — Human Rights Act 1998, Sch 1, Pt I, art 14, Pt II, art 1
R (RJM) v Secretary of State for Work and Pensions [2007] EWCA Civ 614
CA: Sir Anthony Clarke MR, Carnwath and Maurice Kay LJJ: 28 July 2007
Social security regulations, which disentitled a person without accommodation from receiving disability premium, did not discriminate against homeless persons on a ground relating to status for the purpose of art 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Court of Appeal so held when dismissing an appeal by RJM from the order of James Goudie QC, sitting as a deputy judge in the Administrative Court of the Queen’s Bench Division on 13 July 2006 ([2006] EWHC 1761 (Admin)), in which he dismissed RJM’s claim for judicial review against the decision of the Secretary of State on 5 May 2005 to refuse to revise a decision to cease his disability premium payments because he had become homeless and was “without accommodation” within the meaning of para 6 of Sch 7 to the Income Support (General) Regulations 1987 (SI 1987/1967).
The issues arose (i) whether disability premium was a possession so as to engage art 1 of the First Protocol to the Convention, (ii) whether, if it did, the claimant had a relevant status within the meaning of art 14, and (iii) whether the differential treatment was justified.
SIR ANTHONY CLARKE MR said that but for one factor the court would have been bound to hold, despite the apparent inconsistency with Stec v United Kingdom (2005) 41 EHRR SE 295, that the right to disability premium was not a possession: see Campbell v South Northamptonshire District Council [2004] 3 All ER 387 and Kay v Lambeth London Borough Council [2006] 2 AC 465. However, his Lordship was persuaded not to take that course because the Secretary of State had now conceded (and would concede in the House of Lords) that the claimant’s claim fell within the ambit of art 1 of Protocol 1 pursuant to Stec. The question then arose whether the claimant had a relevant status within art 14 and, if so, whether the differential treatment was justified. “Other status” in art 14 meant a personal characteristic: R (S) v Chief Constable of Yorkshire Police ([2004] 1 WLR 2196. A status might be an acquired characteristic: R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, para 45. The mere fact that the status was acquired by choice did not disqualify it from being an “other status”: Francis v Secretary of State for Work and Pensions [2006] 1 All ER 748. However, a status was less likely to be within art 14 if it derived from a person’s choice. The fact of being without accommodation, especially by choice, did not seem to be fairly described as a personal characteristic. Accordingly the claimant did not come within art14. If that was wrong, the refusal to pay disability premium to those without accommodation was within the Secretary of State’s margin of discretion. He was entitled to decide that there were better ways of assisting disabled homeless people than by providing money, which might be spent in ways which might do them more harm than good.
CARNWATH and MAURICE KAY LJJ agreed. |
