RJM, R (on the application of) v Secretary of State for Work and Pensions [2007] EWCA Civ 614

[2007] EWCA Civ 614Case No A2/2006/0640
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Mr James Goudie QC
CO/5689/2005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/06/2007
Before
THE MASTER OF THE ROLLSLORD JUSTICE CARNWATHLORD JUSTICE MAURICE KAY
Between
R (RJM)Claimant/ AppellantSecretary of State for Work and PensionsRespondent/Defendant
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Richard Drabble QC and Zoe Leventhal (instructed by the Child Poverty Action Group) for AppellantMs Nathalie Lieven QC (instructed by the Office of the Solicitor, Department for Work and Pensions) for the RespondentHearing Hearing date: Wednesday 23 May 2007
Judgment

Sir Anthony Clarke MR :

[1]This appeal concerns the question whether a person who is entitled to income support (‘IS’) and who would otherwise be entitled to disability premium (‘DP’) as part of his IS loses his entitlement to DP during any period in which he is “without accommodation”.[2]It is an appeal against an order of Mr James Goudie QC, sitting as a Deputy High Court Judge, (‘the judge’) made in the Administrative Court on 13 July 2006. By his order the judge dismissed the claimant’s claim for judicial review of the refusal of the Secretary of State made on 5 May 2005 to revise a decision to cease to pay DP for the period during which the claimant (‘RJM’) was “without accommodation” within the meaning of the Income Support (General) Regulations 1987 as amended (“the 1987 Regulations”).[3]The judge refused an application for permission to appeal. RJM renewed his application, which was refused on paper by Buxton LJ. RJM further renewed his application orally and it was granted by Mummery LJ.

Factual Background

[4]The facts relevant to this claim can be shortly stated. Before 19 August 2004 RJM was in receipt of DP in his IS on account of his incapacity for work as a result of his mental health difficulties. The payment of that DP was stopped by the Secretary of State on the basis that RJM had become homeless for the period between 19 August 2004 and 26 November 2004 and was accordingly “without accommodation” within the meaning of paragraph 6 of Schedule 7 of the 1987 Regulations.[5]On 27 May 2005 RJM’s solicitors wrote to the Secretary of State asserting that in so far as the 1987 Regulations denied payment of the DP to homeless IS recipients such as RJM they were incompatible with his rights under Article 14 of the European Convention on Human Rights (“the Convention”) in conjunction with Article 1 of Protocol 1 of the Convention (“A1P1”) and should accordingly be disapplied in accordance with the duty of the Secretary of State under section 6 of the Human Rights Act 1998 (“HRA”) to act in accordance with the Convention. Not having received a substantive reply to that letter RJM sought judicial review of that decision of the Secretary of State.

Legal Framework

[6]IS is a means tested benefit providing financial support for those on a low income. The main groups of people entitled to IS are lone parents, carers of sick, disabled or elderly relatives, people with a disability and the long term sick. Section 124 of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”) sets out the entitlement criteria for IS. It provides, so far as relevant:
“(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.” … (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.”
[7]The “applicable amount” referred to in section 124(4) is defined in 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”. It is relevant to note that there is no further detail provided in the 1992 Act as to the “prescribed category of persons” for the purposes of section 124(1)(e) or as to the “applicable amount” under section 135(1).[8]The 1987 Regulations are the relevant regulations for the purposes of the 1992 Act. 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 for the purposes of Section 124(1)(e)” of the 1992 Act. Various categories of people are set out in Schedule 1B including, at paragraph 7, “persons incapable of work”. It is common ground that RJM is such a person.[9]The amount prescribed for the purposes of section 135(1) of the 1992 Act is set out, so far as relevant, in regulation 17 as follows:
“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...” (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...”
[10]The benefit therefore consists of three main elements: the so called personal allowance (under regulation 17(1)(a)), any applicable premium under Parts III and IV of Schedule 2 (under regulation 17(1)(d)) and housing costs where applicable under Schedule 3 of the 1987 Regulations (under regulation 17(1)(e)), the latter generally relating to mortgage payments and other home-owner costs, as opposed to housing benefit which covers accommodation rent for those on a low income.[11]The “personal allowance” in regulation 17(1)(a) for a single person over the age of 25 such as RJM is, we understand, currently £56.20 and the DP for such a person who is incapable of work and has been so entitled or so incapable for a continuous period of less than 364 days is £23.95 a week. Among others, a person who is registered as blind, entitled to disability living allowance, attendance allowance or long term incapacity benefit may also be entitled to the DP. Other premiums available in other circumstances include severe disability premium, bereavement premium and carer’s premium. Entitlement will depend on the specific circumstances of the IS claimant’s entitlement.[12]Regulation 17 is expressed to be subject to regulations 18 to 22A, of which regulation 21 provides so far as relevant as follows:
“(1) …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…”
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). This disallows the entitlement to a DP to which those “with accommodation” and fulfilling the criteria would be entitled under regulation (1)(d). The Department of Work and Pensions has issued a “Decision Makers Guide” (“DMG”), which, in an amendment dated 16 June 2005, includes the following in respect of this provision:
“24156 Where a DM decides that a claimant has no accommodation the applicable amount should include only the normal personal allowance for the claimant and partner. The DM cannot for example include dependants allowances, housing costs premium or TE… 24157 DM 24156 applies only to people without accommodation. The fact that a person may have no fixed address is not relevant to the decision.”
(emphasis in original)[13]The term “without accommodation” is defined in the DMG as follows:
“24158 The word “accommodation” is not defined in the SS legislation, but in this context means an effective shelter from the elements 1. which is capable of being heated and 2. in which the occupants can sit, lie down, cook and eat and 3. which is reasonably suited for continuous occupation. 24159 The site of the accommodation may alter from day to day, but it is still accommodation if the structure is habitable. Material which gives only a small amount of protection from the elements, for example • cardboard boxes • sleeping bags • bus shelters • park benches do not fall within the description of accommodation.”
There follows specific guidance as to the use of cars and mobile homes as accommodation in paragraphs 24160-1 and as to temporary absences from home in paragraph 24162. • cardboard boxes • sleeping bags • bus shelters • park benches do not fall within the description of accommodation.”

The HRA

[14]Section 3 of the HRA requires, in respect of subordinate legislation, such as the 1987 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 Convention rights. Section 6 provides that it is unlawful for a public authority, such as the Secretary of State, to act in a way which is incompatible with a Convention right, unless precluded from doing so by primary legislation, which is not this case. RJM submits that paragraph 6 of Schedule 7 of the 1987 Regulations is incompatible with the Convention.[15]A1P1 provides so far as 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”.[16]As the judge observed in paragraph 16 of his judgment, before him both parties accepted for the purposes of this case, on the one hand, that IS and DP are capable of being possessions within A1P1 but, on the other hand, that there was no interference with or deprivation of those possessions contrary to A1P1. The significance of A1P1 before the judge was that it was accepted that, because RJM’s IS comes within the ambit of A1P1, discrimination against him, contrary to the prohibition on discrimination in respect of Convention rights contained in Article 14 of the Convention was or would be unlawful. Article 14 provides:
“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”
.

The Issues

[17]Two issues were argued before the judge. The first was whether RJM has a relevant status within the meaning of Article 14 and the second was, if so, whether the differential treatment was justified. It was argued on behalf of RJM that the answer to the first of those questions was yes and that the answer to the second was no. It was accepted on behalf of the Secretary of State that, if that was so, RJM’s application must succeed. It was not argued that, whatever the answer to those questions, A1P1 did not apply because RJM had no relevant possessions within that article.[18]In the first skeleton argument filed on behalf of the Secretary of State in this appeal, which is dated 1 May 2007, his position with regard to A1P1 changed. In paragraph 8 of that skeleton he drew attention to the decision of this court in Campbell v South Northamptonshire District Council [2004] EWCA Civ 409, [2004] 3 ALL ER 387 (“Campbell”). In that case the court rejected the submission that the removal of a previous entitlement to housing benefit, which is a non-contributory benefit, amounted to a deprivation of a possession within A1P1. In short it was held that the right to housing benefit is not a possession because it is not a contributory benefit. In reaching that conclusion the court in Campbell followed the reasoning of this court to the same effect in R (Carson and Reynolds) v Secretary of State for Work and Pensions [2003] EWCA Civ 797, [2003] 3 ALL ER 577. The Secretary of State correctly observed in paragraph 8 that Campbell has not been overruled or distinguished in any case either in this court or in the House of Lords.[19]However in paragraph 9 of his skeleton the Secretary of State recognised that in Stec v United Kingdom (application nos 65731/01 and 65900/01), 6 July 2005, (“Stec”) the Grand Chamber of the European Court of Human Rights reached a different conclusion. In the course of declaring a claim admissible the Grand Chamber, after considering some of the earlier jurisprudence, said this under the heading “The Approach to be Applied Henceforth”, at [51] to [56]:
“51. In the modern democratic State, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic and legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid subject to the fulfilment of the conditions of eligibility – as of a right. Where an individual has the assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding Article 1 of Protocol No 1 to be applicable. 52. Finally, and in response to the Government’s contention, the Court considers that to hold that a right to a non-contributory benefit falls within the scope of Article 1 of Protocol No 1 no more renders otiose the provisions of the Social Charter than to reach the same conclusion in respect of a contributory benefit. Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature. The mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the field covered by the Convention (see Airey v Ireland, judgment of 9 October 1979, Series A no. 32, § 26). 53. In conclusion, therefore, if any distinction can still be said to exist in the case-law between contributory and non-contributory benefits for the purposes of the applicability of Article 1 of Protocol No 1, there is no ground to justify the continued drawing of such a distinction. 54. It must, nonetheless, be emphasised that the principles, most recently summarised in Kopecky v. Slovakia [GC], no 44912/98, § 35, ECHR 2004-IX, which apply generally in cases under Article 1 of Protocol No 1, are equally relevant when it comes to welfare benefits. In particular, the Article does not create a right to acquire property. It places no restriction on the Contracting 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 (see, mutatis mutandis, Kopecky [GC] § 35(d). If, however a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a propriety interest falling within the ambit of Article 1 of Protocol No 1 for persons satisfying its requirements (ibid.). 55. In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, 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 (see Gaygusuz, and Willis, also cited above, § 34). Although Protocol No 1 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 Article 14. 56. It follows that the applicants’ interests fall within the scope of Article 1 of Protocol No 1, and of the right to property which it guarantees. This is sufficient to render Article 14 applicable.”
Paragraphs 54 & 55 were set out in paragraph 9 of the Secretary of State’s skeleton argument.[20]Recognising the conflict or apparent conflict between the English decisions and Stec, Ms Natalie Lieven QC drew the court’s attention in paragraphs 10 to 12 of the skeleton to the decision of the House of Lords in Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2AC 465. The House of Lords there considered the correct approach where there is or may be a conflict between a binding decision of an English court and a decision of the European Court of Human Rights. It gave a ringing endorsement to the proposition that except in a wholly extreme case the English court must follow an English decision by which it is bound: see per Lord Bingham of Cornhill at paragraphs 43 to 45, with which the other members of the Appellate Committee agreed. The only exception to the ordinary rules of precedent identified by Lord Bingham was that explained in paragraph 45 as follows:
“To this rule I would make one partial exception. In its judgment on the Leeds appeal, para 33, the Court of Appeal said: “In D v East Berkshire Community NHS Trust [2004] QB 558 this court held that the decision of the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 could not survive the introduction of the Human Rights Act 1998. This was, however, because the effect of the Human Rights Act 1998 had undermined the policy consideration that had largely dictated the House of Lords decision. Departing from the House of Lords decision in those circumstances has attracted some academic criticism. It remains to see whether this will be echoed by the House itself.”
When that case reached the House, no criticism of the Court of Appeal’s bold course was expressed, the House agreed that the policy considerations which had founded its decision in X v Bedfordshire had been very largely eroded and it was accepted that that decision was no longer good law: [2005] 2 AC 373 paras 21, 30-36, 82, 119, 124-125. The contrary was not suggested. But there were other considerations which made X v Bedfordshire a very exceptional case. Judgment was given in 1995, well before the 1998 Act. No reference was made to the European Convention in any of the opinions. And, importantly, the very children whose claim in negligence the House had rejected as unarguable succeeded at Strasbourg in establishing a breach of article 3 of the Convention and recovering what was, by Strasbourg standards, very substantial reparation: Z v United Kingdom (2001) 34 EHRR 97. On these extreme facts the Court of Appeal was entitled to hold, as it did in para 83 of its judgment in D, that the decision of the House in X v Bedfordshire, in relation to children, could not survive the 1998 Act. But such a course was not permissible save where facts are of that extreme character.” “In D v East Berkshire Community NHS Trust [2004] QB 558 this court held that the decision of the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 could not survive the introduction of the Human Rights Act 1998. This was, however, because the effect of the Human Rights Act 1998 had undermined the policy consideration that had largely dictated the House of Lords decision. Departing from the House of Lords decision in those circumstances has attracted some academic criticism. It remains to see whether this will be echoed by the House itself.”[21]But for one factor I would hold that this case is not an example of the kind of exceptional case which Lord Bingham had in mind in that paragraph. I would hold that we are bound by the decision in Kay to follow Campbell and hold that RJM’s right to IS (including his right to DP as part of IS) is not a possession within A1P1 because it is a non-contributory benefit. The factor which has persuaded me not to take that course is the stance of the Secretary of State as explained in a supplementary note dated 21 May 2007 prepared by Ms Lieven and as further explained by her in oral argument.[22]As appears from paragraph 20 of the supplementary note, the Secretary of State now concedes that RJM’s claim falls within the ambit of A1P1. In that note Ms Lieven criticises the reasoning of the European Court in paragraph 55 of its judgment in Stec, submitting that its reasoning is inconsistent with previous Strasbourg authority. She relies in particular upon the judgment of Carnwath LJ in Esfandiari v Secretary of State for Work and Pensions [2006] EWCA Civ 282 (“Esfandiari”) and upon the decisions of the Grand Chamber in Kopecky v Slovakia (application no 44912/98) and Von Maltzan v Germany (2006) 42 EHRR SE 11.[23]However, the Secretary of State expressly recognises the force of the following part of paragraph 54 of the judgment in Stec:
“54…[A1P1] does not create a right to acquire property. It places no restriction on the Contracting 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, … If, however a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of [A1P1] for persons satisfying its requirements …”
The Secretary of State makes this limited concession in paragraph 20 of the supplementary note:
“20. In these circumstances, for the purposes of RJM’s claim, which does involve a non-contributory welfare benefit, and where it is accepted that the Appellant falls within the general social purpose and intendment of the Income Support scheme, it is accepted that pursuant to Stec his case falls within the ambit of A1P1. The Secretary of State therefore accepts that RJM’s case falls within the ambit of A1P1, if the Court of Appeal does not feel itself bound by Campbell.”
[24]Ms Lieven made it clear that that was the limit of the Secretary of State’s concession. However, she also made it clear that, if the matter proceeded to the House of Lords, the Secretary of State would concede that that was the position. She conceded, in my judgment correctly, that RJM had a relevant possession within the meaning of A1P1 on the facts of this case. That was the very concession which the Secretary of State in effect made before the judge because he did not argue to the contrary. In any event it appears to me that it must be open to the Secretary of State to make the concession that RJM has a relevant possession both before the judge and before us, whether or not, but for such a concession, we would be bound to decide otherwise. That is particularly so in circumstances where the Secretary of State would make the same concession in the House of Lords.[25]I turn therefore to the two questions which were live before the judge and are live before us, namely whether RJM has a relevant status within Article 14 and if so, whether the differential treatment is justified.

Status

[26]It will be recalled that the relevant part of Article 14 provides:
“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.”
[27]Mr Drabble submits that RJM is a “rough sleeper”, that being a “rough sleeper” is a personal characteristic and that it follows that he falls within the concept of “other status” in Article 14. He submits that in any event being “without accommodation” amounts to a difference of treatment on the basis of one’s property status within Article 14. I will consider those points in turn.

Other status

[28]The expression “personal characteristic” does not appear in Article 14. The reason Mr Drabble refers to it is that we are bound by the decision of the House of Lords in R (S) v Chief Constable of Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196 to hold that “other status” means a personal characteristic. Lord Steyn summarised the position thus at [48] and [49]: 48. “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 European Court of Human Rights has interpreted “other status” as meaning a personal characteristic: Kjeldsen, Busk Madesen and Pedersen v Denmark (1976) 1 EHRR 711, 732-3, para 56. … 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. 49. It is, therefore, necessary to examine whether the ground for different treatment in this case amounts to a status in the sense of a personal characteristic within the meaning of article 14.”[29]The facts of S (also called Marper) were very different from the facts of the instant case because the differential treatment there related to different historical facts in that one group of people had had DNA taken whereas another had not. It is not, however, suggested that the principles stated by Lord Steyn do not apply in this case. They were followed in the House of Lords in R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29, [2005] 1 WLR 1681, at [65] per Lord Hoffmann (“Hooper”), in R (Carson and Reynolds) v Secretary of State for Work and Pensions, [2005] UKHL 37, [2006] 1 AC 173 at [13] per Lord Hoffmann and at [52] to [54] per Lord Walker (“Carson and Reynolds”) and in R (Clift)v Home Secretary [2006] UKHL 54, [2007] 2 WLR 24, (“Clift”).[30]In Francis v Secretary of State for Work and Pensions [2005] EWCA Civ 1303, [2006] 1 All ER 748, Sir Peter Gibson, with whom both Auld and Moore-Bick LJJ agreed, referred to those cases (except of course the later case of Clift) at [24]. He then drew attention to statements in both Clayton and Tomlinson on The Law of Human Rights and in Lester and Pannick on Human Rights Law and Practice to the effect that the European Court of Justice has construed the expression “other status” very widely. Thus Clayton and Tomlinson at paragraph 17.98 identified these characteristics as coming within the expression: sexual orientation, marital status, legitimacy, trade union status, military status, conscientious objection, professional status and imprisonment. In the second edition of their book at paragraph 4.14.21 Lester and Pannick said this:
“The ECtHR has tended to apply a liberal approach to the ‘grounds’ upon which discrimination is prohibited, preferring not to limit them or define them restrictively. The general reference to ‘other status’ allows for many types of discrimination to be considered. In some cases, the ECtHR has not even thought it necessary to define the grounds upon which a specific example of discrimination is upheld.”
[31]While recognising those views, Sir Peter Gibson made it clear at [25] that this court is bound to apply the test of personal characteristic identified by Lord Steyn in S. However, he rejected the submission made on behalf of the Secretary of State that a personal characteristic is not something which is voluntarily assumed but must be something which is inherent and immutable. The alleged discrimination in that case was against those with parental responsibility for a child by reason of a residence order by comparison with those who had such responsibility as adopters under the Adoption Act 1976. Sir Peter Gibson drew attention to the distinction drawn by Lord Walker in Carson and Reynolds between cases in which it was alleged that there had been discrimination on what he called one of the most sensitive grounds, namely race, gender, illegitimacy, religion, nationality and sexual orientation. In those cases Lord Walker had said that severe scrutiny was called for. Lord Walker added at [58]:
“Where an individual lives is in principle a matter of choice. So although it can be regarded as a personal characteristic it is not immutable.”
[32]Sir Peter Gibson said at [26] that it was plain from Lord Walker’s speech that a personal characteristic can be a matter of choice. Sir Peter further rejected the submission that the status relied upon in Francis was a matter of historical fact (as it had been in S). He did so on the basis that, like the adoption order, it gave rise to a continuing relationship between the person who had parental responsibility for a child and the child.[33]Mr Drabble relies upon that decision as showing that a personal characteristic can be a matter of personal choice and draws attention to [28], where Sir Peter referred back to Clayton and Tomlinson and to the comparatively old case of Engel v Netherlands (No 1) (1976) 1 EHRR 647, in which it was held in Strasbourg that a distinction based on the rank of soldiers was a distinction based on status within Article 14.[34]Mr Drabble submits that when not in accommodation a person like RJM is a rough sleeper or what used to be called a vagrant. He submits that that can fairly be regarded as a personal characteristic. He submits that such a person is set apart from those who live all or most of their lives in accommodation. Even though people like RJM do sometimes have accommodation, as Mr Drabble colourfully puts it, their default position is that of rough sleeper, which is the defining characteristic of their lifestyle. Mr Drabble also refers to the importance placed upon a person’s home by the Convention and notes the comment made by Lord Bingham in Qazi v Harrow London Borough Council [2003] UKHL 43, [2004] 1 AC 983, at [8] that “few things are more important to the enjoyment of human life than having somewhere to live”.[35]Ms Lieven recognises the importance of a person’s home but submits that the fact the RJM does not from time to time have accommodation cannot sensibly be regarded as a personal characteristic of the kind that Lord Steyn had in mind. Ms Lieven (who was as it happens counsel for the successful appellant in Francis) seeks to distinguish Francis on the footing that there was there differential treatment relating to a personal characteristic because of the nature of the family relationship that was in issue. That does indeed seem to me to be a significant distinction between the two cases.[36]Ms Lieven identifies five pointers which, when taken together, she submits lead to the conclusion that a person like RJM does not have an “other status” within the meaning of Article 14. They are(i) that such a person has not so far been recognised as having such a status,(ii) that such a status is not analogous to any of the specified classes of status in Article 14,(iii) that such a status is not a legal status,(iv) that it is a status of choice and(v) that the alleged status is not a personal characteristic.[37]At to point (i), it is true that such a status has not yet been recognised by the European court. This is undoubtedly a relevant point. So, for example, Lord Bingham said in Clift at [28] that he would hesitate to apply the Convention in a way not explicitly or impliedly authorised by the Strasbourg. See also per Lord Hope at [49] but compare [48], which is quoted below. On the other hand, the same point could perhaps have been made in Francis. I would regard this as a relevant but not powerful point.[38]A much more significant point to my mind is Ms Lieven’s point (ii). At [48] of S, which I have quoted above, Lord Steyn observed that the proscribed grounds cannot be unlimited because of the wording of Article 14. Article 14 expressly refers to “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” (my emphasis).[39]Lord Bingham made the same point at [27] in Clift, where he noted that the expression “or other status” (or in the French version “toute autre situation”) is far from precise and added that the language was plainly not intended to cover differential treatment on any ground whatsoever. If it were, the list of grounds in Article 14 (reproduced in this respect in Article 1(2) of the Twelfth Protocol which the United Kingdom has not ratified) would be otiose.[40]In summarising the position on the facts of S at [51], Lord Steyn said that the difference in treatment was not analogous to any of the expressly proscribed grounds such as sex, race, gender or religion. The House of Lords plainly regarded that as an important consideration in deciding whether the claimants had a relevant “other status” within Article 14. It is not necessary, in order to determine this appeal, to decide whether, in order to qualify, the difference in treatment must be on a ground analogous to one of the specified grounds in Article 14. For present purposes, it is sufficient to note that it is at least a relevant factor. On the facts, I would accept Ms Lieven’s submission that the “status” of RJM is not analogous to any of the specified grounds.[41]This approach seems to me to be entirely consistent with that of Carnwath LJ, with whom Jacob and Tuckey LJJ agreed, in Esfandiari. He said at [10] that the precise scope of the expression “other status” remains unsettled except that it is taken as referring to “personal circumstances”. He added:
“However, that imprecision cannot be taken as a licence to define groups by reference to criteria which are ‘not analogous to any of the expressly prescribed grounds’ (R (S and Marper) … per Lord Steyn) and which appear to have no special significance in the scheme of the Convention.”
[42]As to Ms Lieven’s point (iii), it is true that the fact that RJM does not have accommodation does not amount to a legal status. I regard this as a significant but not conclusive point. It is a factor which distinguishes this case from Francis.[43]As to point (iv), it is true that RJM’s status, whatever it was, was a status of choice in the sense that he did not have to be homeless. The decision in Francis shows that the mere fact that the status has been acquired by choice does not disqualify it from being an “other status”. So also in Clift Lord Hope observed at [45] that the Article 14 grounds can be an acquired characteristic, such as a person’s religion or political opinion or, like a person’s race or birth, a characteristic over which he has no control. That said, it does seem to me that a status is less likely to be within Article 14 if it derives from a person’s choice.[44]That may be because a chosen status is less likely to be a personal characteristic or it may be that it is less likely to satisfy the approach adopted by Lord Hope at [48] of Clift, where he said:
“The function of article 14, read with article 1 of the Convention, is to secure to everyone within the jurisdiction of the High Contracting Parties the enjoyment of the rights and freedoms set out in section 1 of the Convention without discrimination on grounds which, having regard to the underlying values of the Convention, must be regarded as unacceptable. This suggests that a generous meaning should be given to the words ‘or other status’ while recognising, of course, that the proscribed grounds are not unlimited. It seems to me, on this approach that the protection of article 14 ought not to be denied just because the distinguishing feature which enabled the discriminator to treat persons or groups of persons differently in the enjoyment of their Convention rights had not previously been recognised.”
The key point in that paragraph seems to me to be that the proscribed discrimination must be on grounds which, having regard to the underlying values of the Convention, must be regarded as unacceptable. Carnwath LJ made a similar point at the end of the passage from Esfandiari quoted above.[45]As I see it, a chosen status is less likely to satisfy that test. This case appears to me to be an example of such a situation. It is not necessary to be without accommodation or homeless. A person who chooses such a lifestyle does not seem to me to be a person who naturally falls within the protection afforded by Article 14. The solution lies in the person’s own hands, namely by seeking and obtaining accommodation.[46]In the light of the authorities the key point is point (v). Is the status of RJM a personal characteristic? In my opinion the natural answer to that question is no. The fact of being without accommodation, especially by choice, does not seem to me to be fairly described as a personal characteristic, any more than say, being a hotelier or a train traveller or living in a bus shelter.[47]In all these circumstances I have reached the conclusion that the judge was right to hold that RJM was not a person with an “other status” within the meaning of Article 14.

Property

[48]In the alternative Mr Drabble submits that RJM has a property status within Article 14. He submits that the judge was wrong to hold that a person who does not have accommodation does not have a property status, that status being the status of not having accommodation. He submits that if a person who has accommodation has property, or a property status, then so too must a person who does not have accommodation. Or, put another way, he submits that, if such a person is discriminated against on the ground that he does not have accommodation, he is being discriminated against on the ground of property. This seems to me to be a somewhat startling proposition.[49]Not surprisingly, it is not supported by authority. So, for example in Chassagnou v France (1999) 29 EHRR 615 the European Court of Human Rights considered a claim that the claimants were discriminated against in breach of Article 14 on the basis that only the owners of land exceeding a certain minimum area could escape the transfer of hunting rights to an approved association or ACCA. The court held (at [95]) that the result of the difference in treatment between large and small landowners was to give only the former the right to use the land in a particular way, which constituted discrimination on the ground of property. The court was plainly referring to discrimination on the ground of ownership of property. There is nothing in that or any other decision to which we were referred to support the proposition that a person like RJM without property has a property status so as to enable him to complain of discrimination on the ground of “property” within the meaning of Article 14.

Differential treatment

[50]It is common ground that RJM was treated differently from those with accommodation because his DP was withdrawn when he did not have accommodation. If, contrary to the view expressed above, RJM has a status which falls within Article 14, the question arises whether the Secretary of State can justify the differential treatment. The judge held that he could. Although the point does not strictly arise if the above conclusions as to status are correct, we were asked to address this question and I will do so shortly.[51]This is not one of those cases in which, as Lord Walker put it, severe scrutiny is called for. As Lord Hoffmann said in Carson and Reynolds, at [15] to [18], certain types of status attract higher levels of protection than others. It is common ground that this case is within the second category of case, in which the Secretary of State merely had to show some rational justification for the different treatment. See also Esfandiari, per Carnwath LJ at [11] to [13], where he said that it is in this second category that there is the greatest room for policy to play its part. Lord Hoffmann said in Carson and Reynolds at [16] that in this class of case differences of treatment usually depend upon the general public interest and that decisions about the general public interest are very much a matter for the democratically elected branches of government.[52]In addition, this is a case which concerns social and economic policy choices, competing calls on a finite budget and, specifically, as Ms Lieven correctly puts it, questions as to the best way to target resources at disabled people without accommodation. I would accept Ms Lieven’s submission that it is in such a class of case that the courts recognise the wide area of judgment which must be accorded to the primary decision maker: see eg R v DPP ex p Kebilene [2000] 326 per Lord Hope at 380H to 381D and Hooper. As the European Court put it at [52] in Stec, “a wide margin is usually allowed to the State under the Convention when it comes to general measures of social and economic policy”.[53]The judge correctly accepted that approach. He set out the evidence of Mr Johnson on behalf of the Secretary of State and of Ms Clarke on behalf of RJM in some detail and expressed his ultimate conclusion in this way at [39]:
“In any event, the Secretary of State 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 Secretary of State 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.”
[54]Mr Drabble submits that the judge’s conclusion at [39] reads as if the Secretary of State made a conscious decision to target an identifiable pool of resources. He submits that this is not the case, as Ms Clarke’s statement makes clear. However, whether that is so or not, the position seems to me to be this. IS was introduced to replace the old supplementary benefit (‘SB’) in 1988. DP was introduced as a supplement to IS for disabled people in order to give them some further support. Mr Johnson’s evidence is that some disabled people would be better off under the new system of IS and DP and some less well off, there would be winners and losers. This was because the new system looked less at individual circumstances and more at broad circumstances.[55]The key part of Mr Johnson’s evidence seems to me to be paragraphs 37 to 39 as follows: 37. The policy is not to pay 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 he Government aims to help. It has done a lot of work to gather information and developed polices 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 need 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).”• 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.[56]Paragraphs 40 and 41 make similar points and identify a number of programmes which provide help for the homeless, in order to try to overcome what are said to be barriers to their finding work, including a history of drug or alcohol abuse, a criminal background, poor basic skills and lack of work experience. Mr Johnson concludes in this way in paragraph 40:
“42. The Government recognises that disabled homeless people are a particularly vulnerable group and gives a high priority to helping them by the best means available within the available resources. The Government has decided to meet this group’s basic needs by introducing legislation giving this group entitlement to the personal allowance in IS. It has decided to meet their special needs by enabling them to apply for SF payments and introducing a whole range of other support measures. The Government believes this, not the IS disability premium, is the best and most effective way of getting disabled homeless people the resources they need. The Government takes the view that this, in fact, provides more support for disabled homeless people than they would have had if they had simply been entitled to the IS disability premium.”
[57]Ms Lieven relies in particular upon paragraph 39. In short she submits that it was well within the margin of discretion or appreciation which is available to the decision maker for the Secretary of State to decide that paying money to disabled people is a less appropriate way to help them than providing other types of scheme. I agree. It is not for the courts to form a view on what is or is not appropriate policy. The executive was to my mind entitled to form the view that there a better ways of assisting disabled homeless people than by providing money, which may be spent in way which may do them more harm than good.[58]In these circumstances the judge was in my opinion entitled to hold that the Secretary of State had demonstrated that, if (contrary to his, and my, view) RJM had an “other status” within Article 14, the differential treatment of those disabled people without accommodation was justified.

CONCLUSIONS

[59]For the reasons I have given I would hold that the right to IS is a possession within A1P1 but that RJM’s appeal must be dismissed because a person without accommodation does not have an “other status” within the meaning of Article 14 of the Convention. If, contrary to that view, RJM does have such a status, the refusal to pay DP to those who do not have accommodation is not unlawful under the Convention because the Secretary of State has justified their differential treatment. I would therefore dismiss the appeal.

LORD JUSTICE CARNWATH: I agree

LORD JUSTICE MAURICE KAY: I also agree.

Cited in 2 later judgments