SH v Secretary of State for Work and Pensions (JSA) [2011] UKUT 428 (AAC)

UKUT-AAC
SH v Secretary of State for Work and Pensions (JSA)
[2011] UKUT 428 (AAC) · 2011-11-08
[1]This is an appeal by the Claimant, brought with the permission of a Judge of the First-tier Tribunal, against a decision of a First-tier Tribunal sitting at Preston on 1 February 2011. For the reasons set out below I dismiss the appeal.[2]The Claimant, a man now aged 55, was an employed solicitor between 1983 and 2003, paying Class 1 national insurance contributions. From 2004 he acted as a locum solicitor on a self-employed basis, paying Class 2 and 4 national insurance contributions. On 30 April 2010 and 24 July 2010 respectively the two locum jobs which he then had came to an end, and he was therefore without employment from 24 July 2010.[3]On 15 October 2010 he claimed contribution-based jobseeker’s allowance, but by a decision made on 11 November 2010 the claim was refused on the ground that he did not satisfy the contribution conditions. That was because only Class 1 contributions, the class of contributions payable by employees, qualify for JSA purposes. Class 2 or 4 contributions, which are the classes of contributions payable by self-employed persons, do not. That is the clear result of the following provisions in the Jobseekers Act 1995:
“1(1) An allowance, to be known as a jobseeker’s allowance, shall be payable in accordance with the provisions of this Act. (2) Subject to the provisions of this Act, a claimant is entitled to a jobseeker’s allowance if he – ……………………………… (d) satisfies the conditions set out in section 2 ………………………………….. (4) In this Act – “a contribution-based jobseeker’s allowance” means a jobseeker’s allowance entitlement to which is based on the claimant satisfying conditions, which include those set out in section 2; …………………………………………………………………… 2(1) The conditions referred to in section 1(2)(d) are that the claimant (a) has actually paid Class 1 contributions in respect of one (“the base year”) of the last two complete years before the beginning of the relevant benefit year and satisfies the additional conditions set out in subsection (2); (b) has, in respect of the last two complete years before the beginning of the relevant benefit year, either paid Class 1 contributions or been credited with earnings and satisfies the additional condition set out in subsection (3) (c) does not have earnings in excess of the prescribed amount; and (d) is not entitled to income support.”
[4]The Claimant appealed against that decision on the ground that the fact that only Class 1 contributions qualified constituted unlawful discrimination, contrary to the Human Rights Act 1998, against him as a former self-employed person. By the First-tier Tribunal’s decision now under appeal to me that appeal was dismissed. The First-tier Tribunal said the following at the end of its Statement of Reasons:
“Although Article 14 applies inter alia to welfare benefits, it does not provide an independent right and must be invoked in combination with another of the articles of the Convention. [The Claimant] has not cited any other article, nor articulated ways in which he considers the decision demonstrates the nature of the discrimination claimed within the terms of Article 14.”
[5]In his application for permission to appeal to the Upper Tribunal the Claimant stated that the other Articles on which he relied in conjunction with Article 14 were Article 1 of Protocol 1 and Article 6.[6]In giving permission to appeal a First-tier Tribunal

Judge commented as follows:

“The grounds of appeal raise the question of whether relying on rights under Article 1 of Protocol 1 the Appellant has been subject to discrimination under Article 14 of the European Convention on Human Rights. The assertion of discrimination is on the basis that as a self-employed earner paying Class 2 and Class 4 national insurance contributions the Appellant should be in the same position with regard to entitlement to JSA as an employed earner who has paid Class 1 national insurance contributions for the same qualifying time period as provided for by the applicable regulations. The Upper Tribunal are respectfully requested to consider this question.”
[7]At the time of giving procedural directions for the making of submissions in this appeal I commented as follows:
“In the light of the decision of the European Court of Human Rights in Stec and others v United Kingdom (2006) 43 EHRR 47 it is clear that contribution based JSA is a “possession” for the purposes of Article 1 of Protocol 1 of the Human Rights Convention. The First-tier Tribunal was therefore arguably wrong in law in not considering whether the fact that self-employed people cannot qualify for contribution-based JSA is in breach of Article 14 in conjunction with Article 1 of Protocol 1 of the Human Rights Convention. The last sentence of the Secretary of State’s supplemental written submission to the First-tier Tribunal (p.27) had addressed the possibility of other Articles applying in conjunction with Article 14. However, the condition of entitlement that Class 1 Contributions be paid is set out in primary legislation (sections 1 and 2 of the Jobseekers Act 1995) and appears to be too clear to admit of a remedy by way of interpretation. Neither the First-tier Tribunal nor the Upper Tribunal would have power to make a declaration of incompatibility under s.4 of the Human Rights Act 1998. The earliest stage at which such a declaration could be obtained, via an appeal in the tribunals system, would therefore be in the Court of Appeal. In those circumstances, would the correct route of challenge have been to apply for judicial review in the Administrative Court, which would have power to grant a declaration of incompatibility? If the First-tier Tribunal should have entertained the merits of the appeal (i.e. breach of Article 14 in conjunction with Article 1 of Protocol 1), it should have gone on to consider whether self-employed persons are in an analogous position with employed persons, for this purpose, and if necessary whether any discrimination is objectively justified. The Secretary of State is requested to deal with those issues in his submission, at any rate in outline. If it was permissible to proceed by way of appeal, rather than judicial review, I would be minded to re-make the First-tier Tribunal’s decision, rather than remitting the matter to a fresh First-tier Tribunal.”
[8]The first submission on behalf of the Secretary of State in this appeal is that Article 1 of Protocol 1 (A1P1) is not even arguably “engaged”, because the Claimant has no entitlement to JSA by virtue of primary legislation, and therefore has no proprietary interest for the purposes of A1P1. The Secretary of State relies on the following passages from paragraphs 51 and 54 of the Stec decision (emphasis added by the Secretary of State’s representative):
“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 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 right. Where an individual has an assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding Article 1 of Protocol 1 to be applicable. 54. ……………………………………. 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 Article 1 of Protocol 1 for persons satisfying its requirements.”
[9]However, in my judgment that submission is plainly misconceived, as appears from the very next paragraph in Stec : “55. In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol 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 ……Although Protocol 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.” (My emphasis).[10]If the law were that a breach of Article 14 in conjunction with A1P1 cannot be made out unless the Claimant actually has an entitlement to the social security benefit in question, then no case where the effect of the allegedly discriminatory condition of entitlement is that the Claimant has no entitlement at all could ever succeed. That is plainly not the law, as is evident from the facts in Stec itself, where the claimants’ complaint was that they were not entitled to reduced earnings allowance, owing to an allegedly discriminatory condition of entitlement. If the Secretary of State’s submission were correct the claimants’ applications in Stec would not have been admitted by the Grand Chamber, as they would have been bad on the short ground advanced by the Secretary of State.[11]The Secretary of State relies on the following statement of the position by the ECtHR in para. 38 of Moskal v Poland (Application no. 10373/05; 15 September 2009):
“ General principles on the applicability of Article 1 of Protocol No 1 The principles which apply generally in cases under Article 1 of Protocol No 1 are equally relevant when it comes to social and welfare benefits. In particular, Article 1 of Protocol No 1 does not create a right to acquire property. This provision 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.”
[12]However, that was in the context of a claim that there had been a breach of A1P1 itself, rather than a breach of Article 14 in conjunction with A1P1.[13]The second submission on behalf of the Secretary of State is that the Claimant does not have the necessary “status” to bring a claim under Article 14, and in particular is not alleging discrimination on the basis of a “personal characteristic”. The Claimant’s status as a former self-employed, as opposed to employed, person is not, it is argued, sufficient.[14]Having regard to what was said in the speeches of Lords Walker (at [5]) and Neuberger (at [35] to [47]) in R (on the application of RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 ; [2009] All ER 556, it is in my judgment well arguable that status as a former self-employed person is a sufficient personal characteristic, in so far as that is a separate requirement. In view of what I say below, it is unnecessary and inappropriate for me to decide the point.[15]The Secretary of State’s representative then goes on to submit as follows:
“ Not analogous Even if being self-employed may be regarded as a status, it does not follow that there has been unlawful discrimination. Employed and self employed people cannot fairly be compared because they are not in analogous positions. See Michalak v Wandsworth [2003] 1 WLR 617 . Objective justification As the Secretary of State’s core argument is that the ECHR does not apply on the facts, this submission will address justification in a broad way. Briefly, the justification for the legislative policy is that it would be administratively too difficult for the Secretary of State to ascertain when a self-employed person was not gainfully occupied. Enabling self-employed people to claim [contribution-based JSA] could therefore create a “moral hazard”, allowing a self-employed person to declare that they are unemployed when in fact they are not and thus to receive benefits to which they are not entitled. Moreover, the state has a wide margin of appreciation in the area of socio-economic policy, and the policy as reflected in the legislation falls well within the bounds of that margin.”
[16]As I pointed out at the time of giving procedural directions in this appeal (see para. 7 above), even if a breach of Article 14 were established, the only possible remedy available in a domestic court or tribunal would be a declaration of incompatibility under s.4 of the Human Rights Act 1998. The condition of entitlement to contribution-based JSA that Class 1 contributions be paid is contained in primary legislation, and is far too clear to permit any other interpretation.[17]Under the adjudication and appeal system for social security benefits, the earliest point at which a declaration of incompatibility could be sought is the Court of Appeal. Neither a First-tier Tribunal nor the Upper Tribunal has power to make such a declaration. What should the approach of the First-tier Tribunal and the Upper Tribunal be in such a situation? Should they simply refuse to entertain an appeal, on the ground that they would be unable to grant any remedy, or should they decide some or all the substantive points, but then dismiss the appeal, leaving it to the claimant to appeal to the Court of Appeal in order to attempt to obtain a declaration of incompatibility? If the First-tier Tribunal and the Upper Tribunal should be regarded as in effect having no jurisdiction to allow an appeal, it is arguable that the proper course is for the claimant to apply to the Administrative Court (which would have jurisdiction to make a declaration of incompatibility) for judicial review of the decision refusing benefit.[18]Similar questions arose in Whittaker v P & D Watson [2002] ICR 1244 in relation to the system for adjudicating on employment disputes. The application to the employment tribunal was on the face of it barred by s.7 of the Disability Discrimination Act 1995, which excluded small businesses from liability under the Act, but the applicant argued that that exclusion was in breach of article 14 of the Convention, in conjunction with article 6. The employment tribunal decided that that was at least arguable, but that the only possible remedy would be a declaration of incompatibility, which the employment tribunal did not have power to give. Rather than simply dismissing the application for want of jurisdiction, it therefore stayed it, pending a possible appeal to the EAT.[19]The EAT held that it also did not have power to make a declaration of incompatibility, and that in those circumstances the appropriate course for the EAT was simply to dismiss the appeal without comment, but that as the applicant’s case under article 6 was not manifestly doomed to fail, it should give permission to appeal to the Court of Appeal. The EAT gave directions for the filing of evidence by the Secretary of State, who had been joined as a party at a late stage.[20]In R v Secretary of State for the Home Department, ex p Kurdistan Worker’s Party [2002] ACD 99 Richards J said [86]:
“The fact that a declaration of incompatibility cannot be made by an inferior tribunal, but only on appeal to the High Court of Court of Appeal, does not generally render proceedings before the inferior tribunal inappropriate or render an application for judicial review appropriate. The appropriate course is still generally to pursue the proceedings before the inferior tribunal and then on appeal to the High Court or Court of Appeal, rather than to apply for judicial review. An obvious example is that of criminal proceedings in the Crown Court, where a declaration of incompatibility is available only on appeal to the Court of Appeal but the general appropriateness of pursuing all issues in the criminal proceedings instead of applying for judicial review has been stressed in Kebilene [2000] 2 AC 326 and in R (Pretty) v DPP [2002] 1 All ER 1 . ……………”
[21]The extent to which it is appropriate for the Upper Tribunal, in a case where the only possible remedy would be a declaration of incompatibility, to enter into the merits of the claimant’s contentions that legislation infringes the Convention must in my judgment depend on the circumstances of the particular case. In the present case full consideration of the justification argument is likely to require evidence from the Secretary of State. I see no point in my making directions for the filing of such evidence, with a view to my expressing an opinion on whether the alleged discrimination is justified, when(a) the Claimant may not be prepared to incur the risk of liability for costs which would be involved in appealing to the Court of Appeal, and(b) the Court of Appeal might hold that the claim fails in any event for want of a sufficient “personal characteristic”. It does not seem to me that there is any point in my purporting to decide points which are arguable, when I would have no jurisdiction to grant any remedy. I therefore dismiss the appeal without further ado.[22]Nor would I presently be inclined to give permission to appeal to the Court of Appeal, were the Claimant to make an application for permission. It seems to me that it should be left for the Court of Appeal to decide whether it is appropriate for it to entertain the case, and what directions for the filing of evidence by the Secretary of State should be made. However, if the Claimant wishes to apply for permission, he should make the application, and I will formally consider and decide it. Charles Turnbull Judge of the Upper Tribunal 8 November 2011

Cited in 2 later judgments