Secretary of State for Defence v Hopkins [2004] EWHC 299 (Admin)

Case No PA/11/2003[2004] EWHC 299 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 th February 2004
Before
THE HONOURABLE MR JUSTICE NEWMAN
Between
THE SECRETARY OF STATE FOR DEFENCEAppellantFRANK DAVID HOPKINSRespondent
Miss Dinah Rose (instructed by Treasury Solicitor) for AppellantMr Rabinder Singh QC and Conor Gearty (instructed by Linder Myers) for RespondentHearing Hearing dates: 15 th and 16 th January 2004
JudgmentMr. Justice Newman :
[1]Mr Hopkins, the respondent, served in the RAOC between 7th June 1956 and 28th December 1958, when he was medically discharged in consequence of pulmonary tuberculosis. He was awarded a War Pension, and an unemployability allowance under Article 18 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (“the SPO”).[2]On 4th March 2002 Mr Hopkins claimed an additional allowance pursuant to Article 18(5), which states:
“Subject to sub-paragraph (c) below, an allowance may be awarded in respect of a wife or husband or unmarried dependant living as a spouse or adult dependant at a rate not exceeding the appropriate rate specified ….”
. He advanced the claim in respect of an “unmarried dependant living as a spouse”, namely Ms Newman, with whom he had commenced to co-habit on 7th September 1991, but the claim was rejected on the ground that it did not fulfil the conditions for such a claim set out in the definition in paragraph 51A of Schedule 4 of the SPO. In its material part the definition limits the availability of an award for an “unmarried dependant living as a spouse” as follows:- “A person of the opposite sex wholly or substantially maintained by the member on a permanent bona fide domestic basis throughout the period beginning 6 months prior to the commencement of his service and continuing, where the member is disabled, up to the date of any award under this Order in respect of his disablement and, where the award is reviewed, up to the date of the review, or, where the member is dead, up to the date of his death”.[3]Ms Newman has continued to live with Mr Hopkins since 1991 (some eleven years at the date when he applied) and still lives with him. For the purposes of this appeal it is not in dispute that she has been dependant on him since 1991 on a permanent bona fide basis, but it is clear that she did not commence the habitation six months prior to his service. Had she done so Mr Hopkins would have been entitled to an extra £43 each week. At the beginning of 1956 she was aged about 5 years.

The decision of the Pensions Appeal Tribunal (“the PAT”)

[4]The PAT found that a “strictly literal” construction of the requirements of Schedule 4 to the SPO would produce a “logically absurd” result because the requirement that the relationship should have commenced at the beginning of 1956 was, owing to the age of Ms Newman at the time, impossible for Mr Hopkins to fulfil. It concluded that Parliament “cannot reasonably have intended “the absurdity” and applying what it described as “the golden rule of statutory interpretation” (preventing an absurd result), construed Schedule 4 as requiring no more than that the couple had been living together for a period reasonable in the circumstances, in a relationship that was shown to be permanent and bona fide.[5]An alternative legal route for the PAT’s conclusion was Article 6 read with Article 14 of the ECHR. Mr Singh QC, for Mr Hopkins, whilst not expressly disavowing the PAT’s reasoning, has not attempted by argument to support it, but has argued for a similar result through Article 8 and/or Article 1 of the First Protocol (Article 1P) and Article 14.[6]The reasoning of the PAT can be summarised as follows:-(1) Article 6(1) was engaged because “the discrimination affects decisions made under the War Pensions Scheme by the Secretary of State and, in particular, affects the outcome of an appeal before a Pensions Appeal Tribunal” and operates as a “fatal barrier” to the success of an appellant’s case.(2) Married and unmarried couples were to be regarded as in an analogous situation. The case of Shackell v United Kingdom, 27th April 2000, was distinguished(3) The Secretary of State had not sought to justify the difference in treatment.

The SPO

[7]The SPO is expressly stated to be made under the authority of section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977. That subsection provides: “Any power of Her Majesty, whether under an enactment or otherwise, to make provision about pensions or other benefits for or in respect of persons who have been disabled or have died in consequence of service as members of the armed forces of the Crown shall continue to be exercisable in any manner in which it may be exercised apart from this subsection and shall also be exercisable by Order in council in pursuance of this subsection; and such Order shall be made by statutory instrument and laid before Parliament after being made”.[8]Prior to 1977 three Prerogative Instruments covered disablement and death in respect of members of the three forces: the army (the Royal Warrant), the Royal Navy (Order in Council) and the Royal Air Force (Order by Her Majesty). An uprating of pensions or any change in the entitlement conditions required amending Instruments for each Service. The legislative purpose of section 12 of the 1977 Act was to enable the powers of Her Majesty the Queen to be exercisable by a single Instrument instead of three separate Instruments for each Service of the Armed Forces.[9]An Order in Council made in the exercise of the royal prerogative is a form of delegated legislation but is not, contrary to the submission of Mr Singh, subordinate legislation within the meaning of the Human Rights Act 1998 (“the HRA”). It is primary legislation falling within the definition set out in section 21 of the HRA.[10]The SPO provides for the payment of pensions and awards to former service personnel who have suffered death or disablement due to service (Article 3) or who have been discharged from the armed forces on medical grounds (Article 3B(27)). Mr Hopkins has received payments in the nature of a disablement award in respect of pulmonary tuberculosis and chronic obstructive airways disease. It is an unemployability allowance based upon a composite assessment of 70%. A serviceman’s entitlement to the allowance is based upon service and the attributability of the disability to service and not upon any contribution from the member of the forces. It is, in character, a welfare provision established for former members of the armed forces to ensure the financial security of former personnel who are unable to support themselves by working by reason of a disability attributable to service. The additional allowance under Article 18(5) has the same character and purpose. I accept the submission that the aims of the provision are no different in principle from the aims of any other social security benefit.

The PAT’s Decision

[11]The effect of Article 18(5) read together with the definition in Schedule 4 is that an additional dependant’s allowance is payable to any married claimant who meets the conditions of Article 8, but it is payable to unmarried claimants in respect of a partner only where they meet the additional conditions at paragraph 51A of Schedule 4. It is plain that the legislation intended to impose the condition that cohabitation had, in order to qualify, to commence six months before the service began and that it had to continue to the date of application. Any number of circumstances might, in individual cases, prevent the condition being met, the age of the partner being but one example. The result was not absurd, although differing views might be held as to the merits or reasonableness of the condition.[12]The application of Article 6(1) of the ECHR is limited to situations in which some substantive legal right exists, or arguably exists, under the domestic law of a State, and in which there arises some impediment of a procedural nature limiting access to the right. Under the SPO unmarried partners have no substantive right to an Article 18(5) allowance unless the conditions are met. Article 6(1) cannot be used in order to create a substantive right which is not available under national law (Matthews v Ministry of Defence [2003] 2 WLR 435, HL).

Mr Singh’s Argument

[13]The starting point for Mr Singh is that only certain long-term albeit unmarried relationships qualify, and the respondent’s is not one of these, for reasons wholly outside his control. He could not have co-habited with Ms Newman before he began his service. Thus expressed, it echoes the sentiment of the PAT which was that he was being prevented from obtaining benefit by a requirement which it was impossible for him to meet. Neither the approach of the PAT nor Mr Singh’s argument suggest that the benefit has to be available to all unmarried partners in a dependent relationship. Some restrictions are therefore to be regarded as acceptable. It is not suggested that it is acceptable to impose conditions only if they can all be met by all applicants should they choose to meet them. Again, whilst it is submitted that it is relevant that it is outside Mr Hopkins’ control to qualify, it is submitted that it is irrelevant that it is within his control to qualify by marrying Ms Newman.[14]Following the approach suggested by the Court of Appeal in Wandsworth LBC v Michalak [2002] EWCA Civ. 271, Mr Singh submitted, by reference to the four questions which the approach involves, that:(1) the facts fell both within the ambit of Article 8 of the European Convention of Human Rights, and Article 1 of the First Protocol to the Convention (“Article 1P”);(2) there has been different treatment between the respondent on the one hand and the chosen comparator, being a disabled former member of the armed forces cohabitating with a dependent unmarried spouse, where the cohabitation did commence six months before service commenced;(3) the chosen comparator is in an analogous situation to the complainant’s situation;(4) there is no objective and reasonable justification which can be identified for the restriction.[15]Before turning to examine each of the four questions it will be convenient to consider an argument advanced by Miss Rose, for the Secretary of State, in connection with the ambit and reach of Article 14 of the ECHR. It will become apparent that it involves a measure of overlap with the Michalak questions (question 3, in particular), but I am satisfied it has sufficient discrete standing as an issue to be considered first of all.[16]Basing herself upon Kjeldsen Madsen v Denmark (1976) 1 EHRR 711, she submitted that for discrimination to come within Article 14 the difference in treatment complained of must have “as its basis or reason a personal characteristic (“status”) by which persons or groups of persons are distinguishable from each other”. (Kjeldsen Madsen, paragraph 56). Article 14 provides as follows: “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 national minority, property, birth or other status”.[17]The citation comes from the second of three unnumbered paragraphs which comprise paragraph 56 of the Court’s judgment in Kjeldsen Madsen. The whole of paragraph 56 must be read in order to understand what was meant by the second:- “The applicants also claim to be victims, in the enjoyment of the rights protected by Article 2 of Protocol No. 1 (P1-2), of a discrimination, on the ground of religion, contrary to Article 14 (art. 14) of the Convention. They stress that Danish legislation allows parents to have their children exempted from religious instruction classes held in State schools, whilst it offers no similar possibility for integrated sex education (paragraphs 70, 80 and 171-172 of the Commission's report). The Court first points out that Article 14 (art. 14) prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic ("status") by which persons or groups of persons are distinguishable from each other. However, there is nothing in the contested legislation which can suggest that it envisaged such treatment. Above all, the Court, like the Commission (paragraph 173 of the report), finds that there is a difference in kind between religious instruction and the sex education concerned in this case. The former of necessity disseminates tenets and not mere knowledge; the Court has already concluded that the same does not apply to the latter (paragraph 54 above). Accordingly, the distinction objected to by the applicants is founded on dissimilar factual circumstances and is consistent with the requirements of Article 14 (art. 14)”[18]Citation of only the second paragraph in Kjeldsen Madsen can appear to suggest that discrimination within Article 14 is limited to a difference in treatment based upon a ground falling within the generic description or class of grounds amounting to a “personal characteristic”. In response to this suggestion, Brooke L.J., observed in Michalak (page 628 para. 34):
“The narrow approach evidenced in Kjeldsen’s case 1 EHRR 711 appears to have been superseded in these more recent decisions”
. The more recent cases to which he refers are Spadea and Scalabrino v Italy [1995] 21 EHRR 482; Bullock v United Kingdom [1996] 21 EHRR CD 85; Chassagnou v France [1999] 29 EHRR 615.[19]It is to be noted that the observation was made in response to an argument that it was necessary for a claimant to find some “personal characteristics”, in common with the comparators relied upon, when answering the question whether the comparators are in an analogous situation to the complainant’s situation. Miss Rose’s argument was advanced in connection with an earlier stage of the analysis and in connection with the ambit of Article 14, although it is true the same ground falls for consideration when answering the third question in Michalak. As I understood her submission, it was not that the claimant had to identify “a personal characteristic”, but that he had to identify a ground of discrimination within Article 14.[20]For myself, having revisited Kjeldsen Madsen, I am not persuaded that the Court intended to state that Article 14 only applied to discrimination treatment having as its basis or reason a personal characteristic (“status”). As appears from the paragraph immediately preceding the quoted passage, the parents’ claim was that they had been affected in the enjoyment of their rights protected by Article 2 of Protocol 1 by discrimination on the ground of “religion”, contrary to Article 14. Between paragraphs 49 to 54 the Court gave a detailed analysis to the second sentence of Article 2 of Protocol 1:
“… the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”
. The Court concluded in paragraph 54 that the legislation:
“… in no way offends the applicants’ religious and philosophical convictions to the extent forbidden by the second sentence…”
[21]There are grounds of discrimination in the nature of a characteristic enumerated in Article 14. Sex, race, colour and language are clear examples. For myself, I doubt that the words “other status” justify characterising all the listed grounds in the same way and therefore hesitate to conclude the Strasbourg Court so intended. In my view, it is significant and a pointer to the contrary that the judgment continues: “Above all [emphasis added], the Court … finds there is a difference in kind between religious instruction and the sex education concerned in this case. The former of necessity disseminates tenets and not mere knowledge; the Court has already concluded that the same does not apply to the latter (paragraph 54 above)”.[22]Further, an examination of the cases which led Brooke L.J., to observe in Michalak that Kjeldsen Madsen had been superseded and the subsequent approval given to his view by Lord Phillips MR in R (Hooper) v Secretary of State for Work and Pensions [2003] 1 WLR 2623 does not provide Mr Singh with an effective answer to the principled approach advanced by Miss Rose, that a claimant must identify a ground of discrimination falling with Article 14.[23]It is well established that Article 14 does not prohibit legislation distinguishing between persons so as to accord enjoyment of the rights and freedoms of the Convention to some but not others. A difference in treatment to be discriminatory within the meaning of the Article has to have “no objective and reasonable justification”, not pursue a “legitimate aim” and not have “a reasonable relationship of proportionality between the means employed and the aim sought to be realised”. See Abdulaziz Cabales and Balkandali v United Kingdom 7 EHRR 471 (1985) following Belgian Linguistics Case 1 EHRR 252, Marckx v Belgium 2 EHRR 330 and Rasmussen v Denmark [1985] 7 EHRR 371. When examining the issues of justification, legitimacy of aim and proportionality the outcome of the considerations will depend upon the ground of discrimination in issue. For example, discrimination on ground of race will give rise to a heightened level of consideration.[24]It is instructive to see how the European Court of Human Rights in Abdulaziz & Others (nearly ten years after Kjeldsen Madsen) approached the question of discrimination, which was alleged to be on grounds of race and sex. It was not disputed that the 1980 Immigration Rules in the United Kingdom made it easier for a man, settled in the United Kingdom, than for a woman so settled, to obtain permission for his or her non-national spouse to enter or remain in the country for settlement (para 74). A difference in treatment on the ground of sex was found. The Court went on to reject the justification put forward for the difference in treatment. As to race, it was concluded that the Rules affected fewer white people than others but, despite this indirect racial effect, concluded that it was “… not a sufficient reason to consider them as racist in character; it is an effect which derives not from the content of the 1980 Rules but from the fact that, among those wishing to immigrate, some ethnic groups outnumbered others”. The Court therefore concluded:
“The Court concludes from the foregoing that the 1980 Rules made no distinction on the ground of race and were therefore not discriminatory on that account”
. The Court accepted the reasoning of the majority of the Commission, which included the opinion that “policies of a purely racist nature” were to be distinguished from an effect in practice which “did not mean that” the Rules “… were abhorrent on the grounds of racial discrimination”. It is plain that the Court came to a different conclusion on Article 14 according to its consideration of the specific grounds for discrimination set out in Article 14.[25]In my view the judgment of the Court supports Miss Rose’s submission that, before one comes to consider the four Michalak questions, it is necessary to identify a discriminatory difference in treatment within the meaning of Article 14 and that it is not enough simply to identify a difference in treatment, raising facts coming within the scope of a Convention right. Article 14 “has no independent existence”, but it has its own meaning.[26]In R (Hooper) v Secretary of State for Work and Pensions [2003] 1 WLR 2623 detailed consideration was given by the Court of Appeal to the ambit and meaning of Article 14. The case involved more than one ground of alleged discrimination, sex and a difference in treatment which turned upon whether proceedings had been taken by widowers in Strasbourg or the United Kingdom. Moses J. held that the latter ground did not fall within Article 14 following the dicta from Kjeldsen cited in paragraph 16 above. Lord Phillips MR agreed with Brooke L.J’s view that the case “appears to have been superseded by more recent Strasbourg authority” and concluded: “We can see no reason in principle why litigants in the English court should not be entitled to complain under Article 14 if, on the ground of their status as litigants in that court, they are treated less favourably than litigants before the Strasbourg court in a manner which engages one of the other Convention rights”.[27]It seems to me to follow that the Court of Appeal in Hooper held that the venue of the litigation fell within Article 14 because the claimants derived status as litigants from their choice of venue and such status fell within the ground, “other status”, in Article 14. In this manner a ground of discrimination within Article 14 was identified. As Lord Phillips observed: “… the reason for the discrimination will be the touchstone of the identification of the class. The identification of a common factor which results in discrimination will at the same time result in the identification of the class or group discriminated against. Care has to be taken to make sure that the common factor is, indeed, the ground for discrimination. This will not be so if there are other factors which explain treating the claimants differently from others. Thus it is necessary to be sure that, apart from the alleged ground for discrimination, the claimants are in an analogous situation to those who are more favourably treated”.[28]Mr Hopkins, being a former member of the armed forces entitled to a disablement pension, was at the date he applied for a dependant’s allowance, wholly or substantially maintaining a person of the opposite sex (Ms Newman) who was living with him as a spouse. By the date of the hearing in this Court, it was known (it not having been in evidence before the PAT) that Ms Newman was a married woman who had not lived with her husband for many years. A dependant’s allowance under Article 18(5) is payable for “an unmarried dependant living as a spouse”. No point has been taken as to whether being “married” she can qualify and, for the purpose of determining this case, I do not propose to rule on that issue. Let it be assumed it is the claimant and the dependant who are to be unmarried. In fairness to Miss Rose, she voiced a general objection to the evidence put in by the claimant, which includes a statement from Ms Newman. She submitted that, it being evidence in support of an argument not advanced below, it should not be received. Further, she objected to its effect which was to suggest that the option of them marrying, by obtaining a divorce, was not straightforward. I allowed the evidence to be adduced subject to the Secretary of State suffering no prejudice from the way in which Mr Singh developed his argument.[29]It has been submitted that the claimant is one of a class or group comprising disabled former members of the armed forces, having an unmarried dependant living with them as a spouse at the date of the application, but who was not living with them six months before their service commenced. The common factor being identified as the ground for discrimination is that the cohabitation did not commence six months before service in the armed forces commenced. I ignore for the moment that the above definition of the claimant’s class or category does not accord with the respondent’s acknowledgement that some restriction by reference to the length of the cohabitation is acceptable. The acceptable, suggested limitation is that the relationship has to be “genuine” or “long-term”.[30]Putting aside any considerations based on Article 1P and discrimination on grounds of “property”, I am unable to discern how this common factor comes within the grounds for discrimination contemplated by Article 14. It does not fall within any of the exemplified grounds, nor, given that the list is illustrative and not exhaustive, any generic type to which Article 14 could be interpreted as extending. Mr Singh submitted that it related to status, namely the unmarried status of applicants living with a partner as a spouse. But being unmarried is not the ground for discrimination. Being unmarried is an element of the qualifying process for eligibility to receive a dependant’s allowance. The relevant difference in treatment derives from the need for the unmarried relationship involving cohabitation to have existed six months before the applicant’s service began. I cannot see that this gives rise to any issue of status for unmarried applicants.[31]Nor is unmarried cohabitation six months before service commenced, in itself, enough. Even if it existed at the outset, if not continuing at the date of the application, it amounts to a spent credential. Equally being married either six months before service or thereafter will be a spent credential, unless its subsists at the date of the application. As I observed earlier, there are innumerable circumstances which can occur to prevent an applicant being eligible for the allowance.[32]Next Mr Singh relied upon the “outdated” force of Kjeldsen Madsen and drew attention to an extract in Grosz, Beatson and Duffy (page 328-329). He relied upon them as pointing to a flexible and broad approach to the “gateway” issue raised by Miss Rose. I must consider the argument.

Grosz Beatson and Duffy

[33]At paragraph C14-15 (page 328) the editors conclude their consideration of Kjeldsen as follows:
“..the Court found it difficult to discern the personal characteristic (“status”) by which the applicants were distinguishable from any other group of parents.”
[34]At paragraph C14-16 they observe:
“But more recently, the Convention organs appear to have taken a less strict approach to this aspect of discrimination. Indeed, in Sutherland v United Kingdom, the Commission considered that it was: ‘not required to determine whether a difference based on sexual orientation is a matter which is properly to be considered a difference on the grounds of ‘sex’ or of ‘other status’. In either event, it is a difference in respect of which the Commission is entitled to seek justification.”
I do not read this as indicating that the Commission considered it as unnecessary to identify a ground of discrimination within Article 14, but rather, being satisfied that it was either “sex” or “other status”, concluded it was unnecessary to determine the exact character of either ground.[35]In paragraph C14-17 other examples of differentiation are noted by reference to cases including . S & M v United Kingdom (1993) 18 EHRR CD 172; Stubbings v United Kingdom October 22, 1996, 23 EHRR 213; Spadea and Scalabrino v Italy [1995] 21 EHCC 482; Bullock v United Kingdom [1996] 21 EHRR CD 85.[36]In S & M v United Kingdom the unavailability of legal aid to litigants in libel proceedings and the wealth of the other party, was regarded as an Article 14 differentiation.

Stubbings v United Kingdom

[37]The applicants were litigants, claiming damages in respect of alleged childhood sexual abuse, being an intentionally caused injury. The time limit for bringing such claims expired six years after the claimants’ eighteenth birthdays. The time limit for injury caused by unintentional injury does not begin to run until the date on which the claimant first knows the injury in question was both significant and attributable to the defendant. The Commission found the ground for differentiation to be one of status. It is difficult to discern the reasoning of the Court. The United Kingdom argued that “… the varying mental states of those allegedly responsible for harming the different groups of victims was not relevant to the latter’s personal status” (see para 68) but the Court did not deal with the specific argument. It simply stated:
“The Court reiterates that Article 14 affords protection against discrimination … However, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction”
. The Court held there was not an analogous position between the applicants and the chosen comparator.[38]For myself, I would hesitate to conclude that the Court’s approach to Article 14 discloses a jurisprudential development. The Commission’s conclusion based on status is very similar to the Court of Appeal’s conclusion that the differentiation in Hooper was a matter of status and the conclusion in S & M v United Kingdom.

Spadea and Scalabrino v Italy

[39]The applicants contended that laws restricting the enforcement of possession proceedings violated their right to their property. They also contended that there had been a breach of Article 14 in discrimination between residential and non-residential accommodation. The Commission found no violation of Article 14, and the Court agreed, but no issue was raised in connection with the alleged ground for differentiation, which was based on their ownership of property.

Bullock v United Kingdom

[40]The applicant owned a pit bull terrier dog and complained of the provisions of the Dangerous Dogs Act 1991 which by section 1 created offences in connection with such dogs and requirements for their destruction based upon a statutory presumption. Article 14 was relied upon because it was alleged the Act discriminated against a certain type of dog irrespective of the character or conduct of the relevant dog. The Commission concluded that the applicant had been deprived of property (the dog) but that the deprivation was proportional. As to Article 14, it concluded that it was in play in conjunction with Article 1 of Protocol 1, but was objectively justified. Plainly, whilst it is a case which demonstrates the diversity of subject matter to which Article 14 can apply, it does not support a conclusion that no “gateway” issue in connection with the ground of differentiation under Article 14 exists.[41]I have concluded that, in so far as the claimant relies upon Article 8 taken in conjunction with Article 14, no ground of discrimination falling within Article 14 can be discerned. Different considerations arise in connection with the Article 1 Protocol 1 issue.[42]In any event, my conclusion does not dispose of the appeal. I shall therefore turn to the next issue, namely whether the facts fall within the ambit of one or more of the substantive Convention provisions (Michalak, question one). I shall consider Article 8 on the assumption that my conclusion on the gateway issue is wrong and Mr Singh’s submission in connection with the flexible approach to be adopted to the ground of discrimination is correct.

Article 8

[43]In the respondent’s skeleton argument for the appeal the case was advanced on the basis that the appellant had failed to respect the nature of the respondent’s relationship with Ms Newman and adjudged it, “not as valuable as other analogous relationships”. In my judgment, the submission is plainly wrong. The actions of the appellant cannot be interpreted as the expression of any disrespect for the relationship of the respondent with Ms Newman. Nor can the legislation, which accords entitlement to a dependant’s allowance where the dependency falls within the definition, be read as casting a non-married relationship, outside the definition, as a “second-class relationship”. The relationship simply lacks a defined requirement for qualifying under the SPO. If, for which no authority has been shown, “respect” or “disrespect” in the sense suggested can bring Article 14 into play (which I doubt) the ground is not made out in fact.[44]A more sophisticated argument was developed orally before the Court.[45]The argument commenced with the judgment of Moses J., in Hooper [2002] UK H.R. 785. The judge had to consider whether Widow’s Payments and Widow’s Pensions fell within the ambit of Article 8(1) of the ECHR. Uncontroversially and very broadly, it can be stated that the link can be established in three ways: namely, failure to provide protection against: i) A breach of a negative obligation; ii) A breach of a positive obligation; iii) Facts falling within the ambit or scope of a substantive obligation.[46]Moses J. concluded (paragraph 31 and 32):
“31. In my view, the availability of pecuniary support afforded by Widow's Payment and Widow's Pension does have a significant effect on the relationship of a family prior to the death of the spouse. They form a significant part of a family's plans for a secure future. The Government itself emphasised the importance of the provision of bereavement benefits in making such plans when it advertised its proposals for new bereavement benefits:- ‘From 9 April 2001, there will be new bereavement benefits for husbands and wives under retirement age. Widows and widowers claim a tax-free £2,000 payment….of course the last thing you want to think about is the death of your loved one. But it makes sense to understand how the new bereavementbenefits will affect you and see how it can be built into your pension and life insurance plan. By seeking advice now, you can plan for a more secure future’. 32. Thus, albeit in the context of the changed proposals designed to apply to both widowers and widows, the Government acknowledged the importance of these benefits in the context of family financial planning. Financial planning seems to me to be a significant aspect of family life and the benefits play some part in allaying fears for the future of a surviving spouse.”
[47]Relying upon these paragraphs Mr Singh submitted that what he had to show was that the appellant, by the legislation, had chosen to act within the ambit of Article 8 and having done so was obliged not to discriminate contrary to Article 14. To establish that the actions were within the ambit of Article 8 it was enough that they had a “significant effect on the relationship of a family”.[48]Alternatively Mr Singh submitted, by reference to Douglas v North Tyneside Metropolitan Borough Council and Another [2003] EWCA Civ 1847, that the test was whether the respondent’s Article 8 rights had “necessarily” been affected by the difference in treatment. He submitted that they had been necessarily affected (see also Petrovic v Austria [2001] EHRR 14 at paragraph 27).[49]The judgment of the Court of Appeal in Hooper was given on June 18, 2003, the day after the judgment of the same court (differently constituted) in Carson & Reynolds v Secretary of State for Work and Pensions [2003] EWCA Civ 797. In Carson and Reynolds, Laws L.J. subjected the Strasbourg jurisprudence, which supports a wide scope to the application of Article 14, to critical analysis. He ultimately concluded:
“I would not in the end depart from the Strasbourg learning on this issue of the scope of Article 14.”
[50]In my judgment, Carson and Reynolds must be taken as illuminating the approach which is open to this court. The “longer reach” of Article 14 has its clear expression in Petrovic v Austria [2001] EHRR 14, as cited by Laws LJ:
“The Court has said on many occasions that Article 14 comes into play whenever 'the subject matter of the disadvantage constitutes one of the modalities of the exercise of the right guaranteed', or the measures complained of are 'linked to the exercise of a right guaranteed’”
. And paragraph 27 where the Court observed:
“Nonetheless, this allowance paid by the State is intended to promote family life and necessarily affects the way in which the latter is organised…..”
[51]The concept of the “effect on family life” adopted by Moses J. had a factual foundation in the evidence, since the Government had asserted that “financial planning” plays a significant part in family life. Since Carson and Douglas a narrower approach is required. The facts will come within the ambit of the substantive Convention right where they affect the exercise of the right or, as stated in Douglas, following Petrovic, “necessarily affect” the way it is organised (being a reference to family life). Obviously Mr Hopkins’ family finances are affected to the extent of £43 each week because Ms Newman does not qualify as an unmarried spouse. But there is no evidence that the exercise of Mr Hopkins’ Article 8 rights has been affected. The evidence adduced by the respondent points to the contrary, emphasising as it does the strength and integrity of their relationship and making no statement about the consequences of being denied the allowance. Article 8 does not give rise to a right to receive financial assistance to support a person’s family life or to ensure that individuals may enjoy family life to the full or in any particular manner: Vaughan v United Kingdom (1987) Application No. 12639/87; Anderson and Kullmann v Sweden 46 DR. 251; Petrovic v Austria [2001] 33 EHRR 14” (paragraph 26 judgment of Laws L.J., in Carson and Reynolds). Nor can it be said that the SPO is legislation passed with the intention of promoting family life.[52]I reject the submission that the facts come within the ambit of Article 8.

Article 1P

[53]Miss Rose submitted that the benefit in issue, not being a contributory benefit and being a form of welfare provision for injury or disablement, does not engage Article 1P. She enjoys clear support for this submission in the judgment of Carson and Reynolds. See paragraph 47: “It seems to me, then, that the law of the Convention is settled on this point as to the scope of ‘possessions’ for the purpose of Article 1P. The policy of the cases is, I think, that while States are in general free to grant, amend or discontinue social security benefits and to change the conditions for entitlement to them as they please without any ECHR constraint, yet where contributions are exacted as a price of entitlement the contributor should be afforded a measure of protection: it has, so to speak, cost him something to acquire the benefit”.[54]Mr Singh submitted that even a non-contributory benefit can fall within the ambit of Article 1P if the applicant/complainant had a legitimate expectation of receiving it. He relied upon Azinas v Cyprus [2002] ECHR 56679/00; R (Purja & Others) v Ministry of Defence [2003] EWCA Civ 1345. I am unable to see how Azinas helps him. The applicant was deprived of a pension to which he was entitled for disciplinary reasons. The legitimate expectation of Mr Hopkins is that he will receive a dependant’s allowance in accordance with the SPO. He has no legitimate expectation that an allowance will be paid in respect of a relationship falling outside the terms laid down by the SPO.[55]In Purja Mr Singh represented the Ministry of Defence and had advanced identical submissions to those of Miss Rose in this court, but he also sought to distinguish two decisions of the European Commission in connection with the Armed Forces Pension Scheme. Simon Brown L.J. rejected the arguments stating:
“Even if one were to accept that Gurkhas' salaries are not abated like those of British soldiers to allow for the value of their pensions … the plain fact remains that the Gurkhas' entitlement to a pension is clearly part of the overall payment package under which they are engaged”
On this ground he concluded the complaints were within Article 1P read with Article 14.[56]Something which is earned as part of an overall payment package can be seen as an entitlement. An occupational pension scheme can be so regarded, but the entitlement provided for by the SPO does not depend upon any length of service. Entitlement arises upon disability attributable to service and a dependant’s unmarried spouse allowance upon the existence of a dependency. The payments are made out of need and are a form of social security for disablement. In my judgment, they cannot be regarded as coming within the overall payment package for service. The facts are not within the ambit of Article 1P. Although it is not necessary to do so, I shall briefly comment on the two remaining Michalak questions. Questions (iii) and (iv) in Michalak Question (iii)

Questions (iii) and (iv) in Michalak

[57]Following Lord Phillips in Hooper (see citation at paragraph 27 above), “it is necessary to be sure that, apart from the alleged ground for discrimination, the claimants are in an analogous situation to those who are more favourably treated”. Mr Singh submits that the claimant is in an analogous position to a claimant who would qualify. That cannot be right. If he was, he would qualify.

Question (iv)

[58]In Carson, Laws L.J. observed (paragraph 73):
“In the field of what may be called macro-economic policy, certainly including the distribution of public funds upon retirement pensions, the decision-making power of the elected arms of government is all but at its greatest, and the constraining role of the courts, absent a florid violation by government of established legal principles, is correspondingly modest.”
[59]It is accepted that had the allowance been limited to married couples it would have been Convention compliant. Its extension to a limited number of unmarried partners is benevolent and promotes the legislative purpose of providing welfare to the needy. In my judgment, the appellant is entitled to conclude that there should be limitations, for budgetary reasons, on the extent of the benefit. The respondent accepted that some restriction was justified (see below under “remedy”). The requirement that the cohabitation commenced six months before service commenced is not arbitrary. It can be seen as delineating the appellant’s responsibility, which is to support a relationship which existed shortly before military service commenced, has continued through service, through disability attributable to service, to the time of the application. These attributes are significant. Wherever the line is drawn there will be cases falling either side of it. In my judgment had the case for discrimination otherwise been made out, I would have concluded the difference in treatment was justified. Further, having regard to the choice which is available for the claimant and Ms Newman to marry, had any interference with a Convention right being made out, I would have regarded it as minimal.

Remedy

[60]The PAT recast paragraph 51 of schedule 4 to substitute a requirement that the cohabitation be for “a period of reasonable length”. Not only was this re-writing the provision, which was not permitted, but it introduced impossible uncertainty. Mr Singh invited a reinterpretation in accordance with Article 8(1) which recognised a “genuine and long-term relationship”. The suggestion does not escape the same criticisms. But the suggested course of reinterpretation, having regard to my conclusion that the SPO is primary legislation, does not arise.[61]This appeal must be allowed and the PAT’s decision must be quashed.

Cited in 2 later judgments