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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Vincent & Ors, R (On the Application Of) v Secretary of State for Work And Pensions [2020] EWHC 1976 (Admin) (23 July 2020) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2020/1976.html Cite as: [2020] EWHC 1976 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN (on the application of LISA VINCENT and others) |
Claimant |
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- and - |
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SECRETARY OF STATE FOR WORK AND PENSIONS |
Defendant |
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And Between: |
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THE QUEEN (on the application of JD, a protected party, by his father and litigation friend JM) |
Claimant |
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- and - |
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SECRETARY OF STATE FOR WORK AND PENSIONS |
Defendant |
____________________
Jamie Burton and Daniel Clarke (instructed by Central England Law Centre) for the Claimant in the JD claim
Edward Brown and Paul Skinner (instructed by Government Legal Department) for the Defendant
Hearing dates: 9, 10 and 11 June 2020
____________________
Crown Copyright ©
COVID-19 Protocol: this judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be 10.00am on 23 July 2020.
Mrs Justice Andrews:
INTRODUCTION
"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… or other status."
In order to show a breach of Article 14, it is sufficient that the facts fall within the ambit of another substantive Convention right; the claimant need not establish a violation of that other right.
THE CHANGE IN POLICY
RELEVANT LEGAL PRINCIPLES
(1) does the alleged discrimination concern the enjoyment of a right set out in the ECHR – in other words, do the facts fall within the ambit of a Convention right?
(2) has the claimant been treated less favourably than a class of persons whose situation is relevantly similar?
(3) is the difference in treatment on the ground of a "status" recognized under Article 14?
(4) is there an objective and reasonable justification for the difference in treatment?
The answers to the third and fourth questions determine whether there is "discrimination" within the meaning of Article 14.
"The traditional concept of indirect discrimination is related to the concept that different cases should be treated differently to this extent: in both the applicant is saying that he or she is adversely affected by a rule which is framed to apply equally but which in fact fails to have regard to a material feature of his or her situation. In the case of traditional indirect discrimination, however, the complaint is that the alleged discriminator could be expected to adopt a different rule which does not have that effect and that it is unreasonable for him not to do so. By contrast, in the case where it is alleged that different cases should be treated differently, it is accepted that the rule itself may serve a legitimate function and be capable of justification in most circumstances but it is contended that a different rule should be adopted for the claimant and those in a similar situation, specifically ameliorating the effect resulting from their special features or characteristics."
"indirect discrimination and Thlimmenos discrimination are closely allied applications of the principle of consistency: the former will often involve an assertion that the claimant should be treated differently from others who are covered by the rule complained of, and that is Thlimmenos discrimination."
(Ibid, at [46]). That reflects a recognition that in certain cases (of which this appears to be one) depending on what is deemed necessary to redress the alleged discrimination, the focus of the justification may be the same whether viewed as indirect or Thlimmenos discrimination.
"… at any rate in relation to the Government's need to justify what would otherwise be a discriminatory effect of a rule governing entitlement to welfare benefits, the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it."
"in indirect discrimination, it is the measure itself, rather than its discriminatory impact, which has to be justified. (This is the case in domestic law, and I see no reason why it should not also be the case in Convention law. If the discrimination is direct, of course, it is the discriminatory impact which has to be justified.)"
This reflected a passage in her dissenting judgment in R(SG) v Secretary of State for Work and Pensions (above) at [189]. All counsel agreed that this represented the correct legal approach to a measure which is challenged on grounds of indirect discrimination.
THE STATUTORY SCHEME
"18. Loans for mortgage interest etc
(1) The Secretary of State may by regulations provide for loans to be made in respect of a person's liability to make owner-occupier payments in respect of accommodation occupied by the person as the person's home.
…
(7) The regulations may-
(a) make provision about determining or calculating the amount that may be paid by way of loan under the regulations;
(b) require that a loan under the regulations be secured by a mortgage of or charge over a legal or beneficial interest in land or, in Scotland, by a heritable security.
(8) The regulations may define "owner-occupier payment".
…
(12) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament."
"19. — Section 18: further provision
(1) This section makes further provision about regulations under section 18.
(2) The regulations may include-
…
(d) provision about the time when, and manner in which, a loan must be repaid;"
"16. Repayment
(1) The outstanding amount shall become immediately due and payable, together with any further interest which accrues on that amount under regulation 15, where one of the following events occurs—
(a) the relevant accommodation is sold;
(b) legal or beneficial title in, or in Scotland, heritable or registered title to, the relevant accommodation is transferred, assigned or otherwise disposed of, unless paragraph (3) applies;
(c) in the case of—
(i) a claimant who is the sole legal owner of the relevant accommodation or the legal owner of the accommodation with someone other than a partner, the claimant's death;
(ii) a claimant with a partner who is the sole legal owner of the relevant accommodation or the legal owner of the accommodation with someone other than the claimant, the partner's death; or
(iii) a claimant and partner who are both legal owners (whether or not with anyone else) of the relevant accommodation, the death of the last member of the couple.
(2) Subject to paragraphs (4) to (7), repayment shall occur—
(a) in the event described in paragraph (1)(a) or (b), from the proceeds of sale, transfer, assignment or disposition;
(b) in the event described in paragraph (1)(c), from the relevant person's estate.
(3) This paragraph applies where legal or beneficial title is transferred to—
(a) the claimant's partner, following the death of the claimant, where the partner is in occupation of the relevant accommodation;
(aa) the claimant, following the death of the claimant's partner, where the claimant is in occupation of the relevant accommodation; or
(b) the claimant, from a former spouse or civil partner, under a court order or an agreement for maintenance, where the claimant is in occupation of the relevant accommodation.
BACKGROUND TO AND PURPOSE OF THE LMI SCHEME
4. Our strategic vision for support for mortgage interest in the future is that it should provide short-term help to people at a time of personal crisis such as loss of employment or relationship breakdown and incentivise work. This is because it is only through full-time work that mortgages can ultimately be repaid.
5. Where there is longer term dependency on the State, for example, where a claimant is disabled or takes a mortgage into retirement, the Government believes that taxpayers should not in effect be helping people to acquire personal assets through any potential long-term rises in house prices. We are therefore seeking views on an option to put a charge on property in return for long-term payment support for mortgage interest.
6. A charge on the property, and an additional sum for interest and an administration fee, would be recouped on the death of the claimant or the sale of that property. Alternatively, the claimant could choose to pay off the charge at any point. This policy would be fair to taxpayers and enable claimants to remain in their own homes.
24. Fairness to the taxpayer is also a core driver for change. Any change to the current arrangements must provide value for money, and also be delivered easily and accurately, without increasing the likelihood of administrative or procedural problems or error, which could result in overpayments /underpayments of benefit.
"support for homeowners, as for renters, when unemployed or sick is fair, but it is unfair to the taxpayer to subsidise assets for the homeowner. The policy increases the fairness of the welfare system by ensuring that the taxpayer recovers the value of payments made in support of an asset, instead of those benefits accruing solely to individuals."
"the policy will affect all those on SMI, though this is through repayments which are delayed until such time as recipients are financially able to repay this loan. Nevertheless, support remains available at the time of need. Households may choose not to take up this loan and finance their mortgage repayments in alternative ways. Those who currently claim SMI and do take up the support will retain the level of support they currently have.…
SMI as a loan will be available to all the claimants who can currently access it as a benefit and will not involve any customers losing income at the point of claim so there should be no adverse impact on claimants with protected characteristics. The amount of SMI paid to any claimant plus interest will be recouped from the equity in the property when it is sold or otherwise disposed of. If there is insufficient equity in the property to repay the whole SMI loan, the balance will be written off. Thus there will be continued protection from the threat of repossession regardless of protected characteristics."
"over one third (38%) of SMI recipients are claiming ESA and almost half (48%) are claiming Pension Credit. Claimants of these benefits are more likely to be affected by some form of disability than the population in general. Based on self-reported data on disability status according to the Equalities Act 2010 definition, in the proxy group for SMI claimants 74% of single claimants are disabled and 80% of couple claimants have one or more member that is disabled. In comparison, 17% of all single mortgagors have a disability and 21% of couples with mortgages have a member with a disability. This indicates the policy is likely to have a disproportionate impact on disabled people. All SMI claimants will continue to be protected from the threat of repossession regardless of disability status."
"replacing SMI with the same level of support as a loan was supportive of Life Chances as the policy would ensure support was available at the time of need. The intention was to prevent repossession and distress to families which could harm the family unit. Where homelessness is prevented it also enables return to work more quickly and therefore may have a longer-term impact on stable family life of homeowners who are temporarily sick or unemployed."
THE VINCENT CHALLENGE
THE JD CLAIM
i) disabled people in the LMI scheme and non-disabled people in the LMI scheme; and
ii) disabled people, and non-disabled people who do not have an "enhanced risk" of needing to move.
I have already explained why I do not accept that an "enhanced risk claimant" is a status for the purposes of Article 14. If it were a status, then it seems to me to be at the outer limits of the concentric circles described by Lord Walker in R(RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 [2009] 1 AC 311 at [5].
i) disabled people may have fewer realistic options in terms of accommodation choices;
ii) disabled people with deteriorating conditions may need to move to another home if it is not possible to make adaptations to their existing properties (for example if a single-storey property is required instead of a property with stairs); and
iii) disabled people may need to move to access disability-related care.
For those reasons, Mr Brown accepted that the RSR may have some differential impact on disabled people as against non-disabled people, although the extent of that impact is unknown. Of course, as the Court of Appeal recognized in DA, [2018] EWCA Civ 504, [2018] PTSR 1606, if a rule has a disproportionate impact on one group, the issue of justification arises irrespective of the extent of the disproportionate impact. If (contrary to my earlier finding) an "enhanced risk claimant" is a status, the very definition of that status postulates a differential impact. It is self-evident that those who do not have an enhanced need to move will be less likely than someone who does to feel the impact of the requirement to repay the loan out of the sale proceeds in the event that the residual equity is insufficient to fund a move.
JUSTIFICATION
THE PSED
(1) A public authority must, in the exercise of its functions, have due regard to the need to…
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it…
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to: -
(a). remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it…"
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
"the concept of "due regard" requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria… the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognize the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors."
CONCLUSION