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England and Wales High Court (Administrative Court) Decisions

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Cite as: [2006] EWHC 1761 (Admin)

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Neutral Citation Number: [2006] EWHC 1761 (Admin)


Strand, London WC2A 2LL
13th July 2006

B e f o r e :

(Sitting as a Deputy High Court Judge)




Transcript of the Handed Down Judgment of
Smith Bernal WordWave Limited
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Richard Drabble QC and Zoe Leventhal (instructed by Child Poverty Action Group) for the Claimant

Nathalie Lieven (instructed by Office for Work and Pensions) for the Defendant



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  1. This is an application for judicial review pursuant to permission granted after an oral hearing by Clare Montgomery QC on 25 November 2005, permission having been refused on the papers by Andrew Nicol QC on 9 September 2005. The subject matter of the review is a decision by the Defendant Secretary of State ("the SoS") on 5 May 2005 to refuse to revise a decision made by officials on his behalf.
  2. The case is about Income Support ("IS"). In particular, the case is about the disability premium ("the DP") in IS.
  3. The Claimant, RJM, who has mental health difficulties, receives the DP when he has accommodation. He does not receive it when he is "without accommodation". It is a decision to cease to pay the DP during a period, between 19 August and 26 November 2004, during which RJM was "without accommodation" that the SoS refused to revise.
  4. RJM's case is that the non payment of DP during such periods is discrimination contrary to Article 14 of the European Convention on Human Rights ("the ECHR"), in conjunction with Article 1 Protocol 1 ("Art 1/1") of the ECHR, and thereby a breach of the Human Rights Act 1998 ("the HRA"). The non-payment is in accordance with the Income Support (General) Regulations 1987, as amended ("the Regulations"). The Regulations have effect pursuant to the Social Security Contributions and Benefits Act 1992 ("the 1992 Act").

    The 1992 Act

  6. Section 124 of the 1992 Act sets out the entitlement criteria for IS. One criterion is that the person has no income or his income does not exceed the applicable amount. That is satisfied in the case of RJM. Another criterion is that he "falls within a prescribed category of person".
  7. Broadly, where a person is entitled to IS then if, as in the case of RJM, he has no income, the amount of IS is "the applicable amount". The "applicable amount" is defined by Section 135(1) of the 1992 Act as "such amount or the aggregate of such amounts as may be prescribed in relation to that benefit".
  8. The 1992 Act is skeletal. In order to identify who falls within a "prescribed category of person" and what is the "applicable amount" it is necessary to turn to the Regulations.
  9. The Regulations: Prescribed Category of Person

  10. Regulation 4ZA(1) provides, so far as relevant, that "a person to whom any paragraph of Schedule 1B applies falls within a prescribed category of persons ...". Various categories of persons are set out in Schedule 1B. They include, at paragraph 7, "persons incapable of work". RJM is within this category of persons. He is entitled to "the applicable amount".
  11. The Regulations: Applicable Amount

  12. The "applicable amount" is set out in Regulation 17. It consists of three main elements. They are (1) the so-called personal allowance: RJM receives that, in the sum of 56.20 per week; (2) any applicable premium: that is what is in issue in this case; and (3) housing costs, where applicable: they are not applicable in RJM's case.
  13. As to (2), a person who, like RJM, is incapable of work, and who, like RJM, has been so incapable for a continuous period of 364 days, is entitled to DP, in the sum of 23.95 for a single person, like RJM.
  14. However, Regulation 17 is expressed to be subject to other provisions, including Regulation 21. Regulation 21 provides, so far as material for present purposes, that in the case of a person to whom any paragraph in column (1) of Schedule 7 applies the amount included in the claimant's weekly amount in respect of him shall be the amount prescribed in the corresponding paragraph in column (2) of that Schedule.
  15. It is Regulation 21 and paragraph 6 of Schedule 7 which, from time to time, catch RJM. Paragraph 6 of Schedule 7 provides that for a claimant who is "without accommodation" the amount applicable to him is only the personal allowance. There is DP for those currently with accommodation. There is no DP for those currently without accommodation.
  16. What may be meant by "accommodation" for this purpose is indicated by the SoS's Department's "Decision Makers Guide". RJM is "without accommodation" when he is a rough sleeper.
  17. The HRA

  18. Section 3 of the HRA requires, in respect of subordinate legislation, such as the Regulations, that, so far as it is possible to do so, it must be read and given effect to in a way which is compatible with ECHR rights. Section 6 of the HRA provides that it is unlawful for a public authority, such as the SoS, to act in a way which is incompatible with an ECHR right, unless precluded from doing so by primary legislation, which is not this case. The Claimant submits that paragraph 6 of Schedule 7 to the Regulations is incompatible with the ECHR.
  19. The ECHR

  20. By Art 1/1 every person is entitled to the peaceful enjoyment of his possessions. Noone shall be deprived of his possessions except in the public interest.
  21. Both parties accept for the purposes of this case that (1) IS and DP are capable of being possessions for the purposes of this case, but that (2) there is no interference with or deprivation of those possessions contrary to Art 1/1.
  22. The significance of Art 1/1 is that, because RJM's IS comes within the ambit of Art 1/1, discrimination against him, contrary to the prohibition on discrimination in respect of ECHR rights contained in Article 14 of the ECHR will be unlawful.
  23. Article 14 provides that the enjoyment of the rights and freedoms set forth in the ECHR 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.

  25. Two issues were argued before me:-
  26. (1) Whether RJM has a status within Article 14;

    (2) If so, whether the differential treatment is justified.


  27. Mr Drabble QC puts the case for RJM having a status that brings him within Article 14 in three ways. First, Mr Drabble submits that RJM has a "personal characteristic", namely as a person without accommodation, a rough sleeper. Second, Mr Drabble submits that RJM has a status by reference to residence. Third, Mr Drabble submits that RJM has a status by reference to property.
  28. The difference in treatment must be based on a "personal characteristic" in order for Article 14 to be applicable. In R(S) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196 ("S") Lord Steyn said, at paragraph 48:-
  29. "The list of grounds in article 14 is not exhaustive, and necessarily includes each of the specifically proscribed grounds as well as "other status". The ECtHR has interpreted "other status" as meaning a personal characteristic: Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para 56."
  30. Lord Steyn continued:-
  31. "On the other hand, the proscribed grounds in article 14 cannot be unlimited, otherwise the wording of article 14 referring to "other status" beyond the well-established proscribed grounds, including things such as sex, race or colour, would be unnecessary. It would then preclude discrimination on any ground. That is plainly not the meaning of article 14."

  32. That case was concerned with retention by the police of fingerprints and DNA samples. Lord Steyn observed, at paragraph 40, that there is a difference in treatment between those who have had to provide fingerprints and samples pursuant to a criminal investigation as compared with the rest of the public who have not. But that difference, said Lord Steyn, is not necessarily on grounds of status.
  33. Lord Steyn concluded, at paragraph 51:-
  34. "By way of summary the position is as follows. The difference in treatment is not analogous to any of the expressly proscribed grounds such as sex, race, gender or religion. The fact that the police are now in possession of fingerprints and samples which were previously lawfully acquired as a result of a criminal investigation does not give rise to a "status" within the meaning of article 14."
  35. A "status" or "personal characteristic" within the meaning of Article 14 was, however, found to exist by the Court of Appeal in Francis v Secretary of State for Work and Pensions [2006] 1 All ER 748 ("Francis"). The status was being a person with parental responsibility for a child pursuant to a residence order, as compared with a person with parental responsibility for a child pursuant to an adoption order.
  36. Counsel for the SoS, Mr Kolinsky, argued that the residence order like the adoption order is no more than an historical fact, as in S, and that a personal characteristic is not something that can be voluntarily assumed but must be something which is inherent and immutable, pointing to the speech of Lord Walker of Gestingthorpe in R (Carson) v Secretary of State for Work and Pensions [2005] 2 WLR 1369 ("Carson"). In Francis Sir Peter Gibson said, at paragraph 27:-
  37. "In my judgment it is plain that Lord Walker's speech provides no support for Mr Kolinsky's submission. On the contrary, it is inimical to it. A personal characteristic, as Lord Walker says, need not be immutable and can be a matter of choice. What Lord Walker was concerned with was the severity of scrutiny of the various grounds in Article 14 and the necessity for weighty reasons to justify discrimination on particularly sensitive grounds. The relevant status in the Carson case, non-residence, did not call for severe scrutiny and the discrimination was rationally justified. I do not accept that the status relied on in the present case was merely one of historical fact. The residence order like the adoption order, while an historical fact, relevantly gave rise to a continuing relationship between the person who thereby had parental responsibility for a child and the child. I have no difficulty in describing the possession of that relationship with its obligations as a personal characteristic, satisfying the Kjeldsen test."
  38. RJM describes himself as follows in his Witness Statement:-
  39. "2. I suffer from mental health problems. I suffer from agitation and I feel I am like "Catweazle" - I am unable to cope with being enclosed. I am incapable of work. I am in receipt of income support. I am aged 48.
    3. I have not had a permanent address since around 1988. Since that time I have spent most of each year sleeping rough and I have travelled from town to town collecting my income support by Giro. I have spent periods of time in accommodation. I currently travel with a woman companion who is about 20 years older than me, who is not my partner."

  40. Mr Drabble submits that RJM has a lifestyle of being liable to be a rough sleeper, a lifestyle which involves substantial periods of time as a rough sleeper, who can be compared with a person who is in accommodation all or most of the time. Miss Lieven for the SoS submits that having no accommodation as compared with having accommodation has nothing to do with any "personal characteristic".
  41. I prefer Miss Lieven's submission. Having or not having something, even something as basic as accommodation, is not a personal characteristic. It is akin to the situation in S. It is not like the family relationship and obligations under a Court Order in Francis.
  42. I also reject both of Mr Drabble's other submissions on status. There is not a legal status of residence or ordinary residence here, comparable to nationality or domicile, as in Carson or Darby v Sweden (1991) 13 EHRR 774. Nor is there a legal status of property ownership.
  43. I would therefore dismiss the claim on the basis that RJM does not have a personal characteristic for the purposes of Article 14. He does of course have a personal characteristic of disability and incapability of work. That, however, is not what distinguishes him from those who do receive DP. What distinguishes him in that respect is that during periods when he is without accommodation he does not receive what those with accommodation during those periods do receive.

  45. On my conclusion on the preliminary issue as to status, the question whether his differential treatment is justified does not arise. However, I proceed to consider it.
  46. I do so in the context in which it arises. That is social and economic policy and the distribution of public resources. The significance of this is spelt out by Lord Hope of Craighead in R v DPP, ex p Kebilene [2000] 2 AC 326 at 381C, by Lord Hoffmann in R (Hooper) v Work and Pensions Secretary [2005] 1 WLR 1681 at paragraph 32, and by Lord Hoffmann in Carson at paragraphs 16/17 and 25. Differences in treatment are capable of being justified on utilitarian grounds. Whether they are justified is primarily a matter for the legislature and the executive.
  47. What requires to be justified is those without accommodation not being eligible for DP within IS. This is addressed in the Witness Statement of Damien Johnson on behalf of the SoS, to which Sarah Clarke replies on behalf of RJM in her Second Witness Statement.
  48. Having set out the background, and the change from Supplementary Benefit ("SB") to IS, Mr Johnson addresses the way disabled homeless people are helped. He states:-
  49. "28. Rather than paying disabled homeless people the disability premium, their needs are met by many sources from several Government Departments. The main source is the personal allowance part of IS ...

    29. The Government's view is that homeless people, especially disabled homeless people, have very specific, urgent and important needs that should be met. Most obviously, they need accommodation. Paying them the disability premium would not be the most effective way to meet such needs. State funds can be more effectively spent to help these people get accommodation.

    30. All Local Authorities are required to produce a "Homelessness Strategy' ... By these Strategies and other actions, Local Authorities tackle homelessness. ... new projects ... will help prevent homelessness ... in a number of new ways. Thus, local and central government are taking actions to direct resources in ways that can be more effective in helping the homeless.
    31. In addition, there are special rules and help provided for anyone without accommodation who is sick or disabled...
    32. Supplying accommodation is seen as key to helping these people effectively. ...
    33. In the government's view, helping homeless people into accommodation is a much more effective way of helping them than handing out money through the disability premium."

  50. Mr Johnson sets out the rationale for the policy in relation to disabled homeless people. He states:-
  51. "37. The policy is not to pay the disability premium to claimants who are without accommodation. As set out above, claimants in accommodation have a range of expenses and financial pressures related to that accommodation that claimants without accommodation do not have. The extra help provided by the disability premium is therefore intended to cover expenses that homeless claimants do not generally have.
    38. In deciding how best to spend finite state resources where they are most needed, a key consideration is the Government's social policy aims. The Secretary of State aims to make benefits available in a way that addresses most effectively the Government's social policy aims for specific groups of people. People without accommodation are an important group that the Government aims to help. It has done a lot of work to gather information and developed polities in an effort to help these people.
    39. The information obtained on people without accommodation shows that:
    90% are male,

    40 to 50% have mental health problems;

    90% have problems connected with substance misuse e.g. drink and drugs, and

    70% have had a custodial sentence.
    The Government has considered the various information available. It has decided that simply paying out additional benefit (for example in the form of the IS disability premium) to a sick or disabled person who is without accommodation is not the most appropriate way to help these individuals. Paying extra benefits would not address the vulnerable position in which these people find themselves. It would also not address the underlying difficulties that resulted in them becoming without accommodation in the first place. They are in a vulnerable position and in need of help. The Government aims to provide the help they need to get out of that position. It does not aim to provide money to keep them in their vulnerable position (albeit potentially making that vulnerable position slightly more manageable).
    40. The Government is well aware of the effect of homelessness on people's health and well-being. It is considered unacceptable and undesirable from both a moral and social standpoint for sick and disabled people to be without accommodation. The Government believes it would be an inappropriate use of public funds to simply pay out additional benefit when there are other, and more effective, ways this money could be spent to assist these people. Using these other ways is intended to help the person tackle their long-term needs rather than meet their short-term needs.
    41. The Government places a very high priority on helping people who are homeless. Substantial resources are provided to address the whole range of issues affecting people without accommodation. ..."

  52. Sarah Clarke responds:-
  53. "8. What appears to have happened (from the documentation available to me) is that the position that prevailed in the SB scheme was replicated as near as could be in the IS scheme, with the unfairness already present being carried forward. ...

    9. It is of course true that the position under the SB scheme is of background interest only. The present position is that a very small group of the disabled or long term sick is singled out as not entitled to the premium (those without any accommodation at all) whilst the remainder of the client group is entitled, regardless of their personal circumstances and whether or not they have, for example, any responsibility for heating or other household expenses. The treatment of the large group is consistent with the approach in the White and Green Papers to "client groups", the treatment of rough sleepers is not.
    10. ... in many respects the needs of rough sleepers are greater than those in accommodation. They have to eat out, or eat pre-made meals, they will have laundry costs; they may need to pay for washing facilities; they will have needs for warm clothing, blankets and the like. ...
    11. At paragraph 28 Mr Johnson suggests that rough sleepers can make applications to the Social Fund. It is not clear whether a homeless claimant could fulfil the requirements for a community care grant under the present rules. They are only paid for particular purposes, for example to help the claimant remain in the community following a stay in residential or institutional accommodation. The only one that seems likely to apply to homeless claimants is for travel expenses for specified purposes, for instance to visit someone who is ill, or attend a relative's funeral. The minimum amount payable is 30 (except for travel expenses). A homeless claimant would probably qualify for a budgeting (minimum 100 maximum 1,000 from April 2006) or crisis loan, although the absence of the premium would mean that they had less money out of which to pay it back.

    12. Insofar as Mr Johnson's witness statement argues that the non-availability of the premium represents a sensible targeting of resources, it may be important to bear in mind the limited number of people who are rough sleepers. ... Making the disability premium available to the limited number of true rough sleepers would make no meaningful overall difference to the resources available for the matters discussed in paragraphs 28 to 35. ..."

  54. I am not satisfied that the situation between those with accommodation during a particular period who are entitled to the DP and those without accommodation during that same period who would otherwise be entitled to the DP is analogous. The assessed needs by virtue of long term sickness or disability are the same. However, whether or not a person currently has accommodation is a relevant difference.
  55. In any event, the SoS has legitimate aims: to target finite resources and assist the homeless, and not least the disabled homeless, in other ways. The means used to achieve those ends is not disproportionate in its effect, however unfair other social policy experts regard it. The SoS and Parliament were entitled to adopt a broad approach, draw the line in the way they did in relation to IS and DP, and to prioritise other measures for addressing the vulnerable position in which the disabled homeless find themselves above giving them enhanced monetary benefits.

  57. I am against RJM on each of two grounds. First, in my judgment, Article 14 of the ECHR is not engaged in his case. Secondly, even if it were, in my judgment there is objective and reasonable justification for not paying DP as an element in IS when disabled persons have no accommodation and no accommodation costs but do have a need to be assisted to obtain accommodation. I dismiss the claim.

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