Secretary of State v YB [2014] UKUT 80 (AAC)

UKUT-AAC
Secretary of State v YB
[2014] UKUT 80 (AAC) · 2014-02-07
[38]“Notwithstanding these categorisations, the law of discrimination, domestic or European, rests on a single principle: the principle of consistency. Elias LJ at once stated the principle and exposed its different applications in AM (Somalia ) [2009] EWCA Civ 634 : "[l]ike cases should be treated alike, and different cases treated differently. This is perhaps the most fundamental principle of justice" (paragraph 34). Even so, discrimination, including direct discrimination in Article 14 cases, may be justified; and the difference between direct and indirect discrimination (and Thlimmenos discrimination) retains a conceptual importance, because it will determine what it is that must be justified. Where the discrimination is direct – where a rule, practice or policy prescribes different treatment for persons in like situations – it is the rule itself that must be justified: the difference in treatment. Where the discrimination is indirect – where a single rule has disparate impact on one group as opposed to another – it is the disparate impact that has to be justified. With Thlimmenos discrimination, what must be justified is the failure to make a different rule for those adversely affected.” 26. The Secretary of State argued and I accept the proposition that in the realm of justification of discrimination under Article 14 that the Secretary of State has a margin of appreciation – MA at § 36. However the Secretary of State went on to argue that where one was dealing with a social strategy, such as benefits that the margin was a wide one. Reference was made to Humphreys v HMRC [2012] UKSC 18 , [2012] 1 WLR 1545 (§ 15) where Baroness Hales of Richmond cited with approval Stec v UK (2006) 43 EHRR 1017 at paragraph 52: “The scope of this margin will vary according to the circumstances, the subject matter and the background. As a general rule, very weighty reasons would have to be put forward before the court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the court will generally respect the legislature's policy choice unless it is ‘manifestly without reasonable foundation’.”27. The Secretary of State’s argument continued: “It is well established that this margin of appreciation allowed to the state means that it is entitled to draw “bright lines” when making general legislation of this kind in the interest of a workable system, rather than attempting to cater for the individual situation of every claimant; and that the need to draw those lines at some reasonable point may create hard cases. It is well established that a workable system may depend on the adoption of clear, easily applicable “bright line” rules rather than attempting to cater for the individual situation of every claimant. An example was discussed by Lord Hoffmann in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 , [2006] 1 AC 173 , a case where the Article 14 challenge was based on the fact that the rate of jobseeker’s allowance payable was lower if the claimant was aged 25 or over: “a line must be drawn somewhere. All that is necessary is that it should reflect a difference between the substantial majority of the people on either side of the line. If one wants to analyse the question pedantically, a person one day under 25 is in an analogous, indeed virtually identical, situation to a person aged 25 but there is an objective justification for such discrimination, namely the need for legal certainty and a workable rule”. (See also the various examples of Convention-compatible “bright lines” discussed by Richards LJ in R (Wilson) v Wychavan DC [2007] EWCA Civ 52 , [2007] QB 801 (paragraphs 57-60.)”28. The Secretary of State submitted that in the field of social security benefits the test was in fact one of being “manifestly without reasonable foundation” and referred, amongst other cases, to MA at § 60 where Laws LJ adopted this test “for the ascertainment of the Secretary of State’s margin of discretion”. I accept that is the test. The factual basis on which the justification was founded in set out in the written submissions at § 35 and relies on the Memorandum I refer to hereafter.29. However, I note that Laws LJ in MA at § 62 said:[62]“62. Though the wide margin remains, it is important to have in mind that what has to be justified for the purpose of Article 14 (at least in a case like this) is not the policy as a whole but the relevant difference in treatment. So much was common ground. I note in particular the reference by Ms Mountfield to the decision of the Supreme Court in Quila [2012] 1 AC 621 , [2011] UKSC 45 , in which the court held that it is not enough for a decision-maker in a field of sensitive public policy to draw attention to a particular pressing social problem and pray that in aid as an intrinsic justification for the measures adopted to address it. This is certainly so with respect to the discrimination issue here. As I have said the concrete question is whether the refusal to exclude (some) disabled persons from the regime of B13, and the provision made and to be made by way of access to DHPs, constitutes a proportionate approach to the difficulties suffered by such persons in consequence of the HB policy.” 30. In considering whether or not the discrimination in the regulation is objectively and reasonably justified, having regard to the width of the discretion as set out in MA , I start with the “Explanatory Memorandum to the Social Security Advisory Committee” (SSAC) (page 510) that is put to the Committee for comment before the regulation is enacted. Paragraph 9 refers to the preliminary consultation and states:
“9. The Department has been working closely with officials from the RNIB since they launched their campaign to develop the necessary level of detail on which the Government could commit to change. Those discussions have led to a position where we are agreed that the fundamental policy position should be that the extension of entitlement to the higher rate mobility component should only be extended to those “who have no useful sight for orientation purposes”
. This position recognises that many severely visually impaired people (including those that have been registered as such) have a sufficient degree of visual acuity and/or visual field to safely negotiate their way when out of doors on familiar routes and should be excluded from being within scope”. 31. The Secretary of State emphasised the “who have no useful sight for orientation purposes”, saying that the claimant had sufficient sight for orientation purposes inside under the Snellen test, whereas the claimant’s representative referred to the fact that the mobility component was concerned with the ability to walk outside. It is clear to me from § 9 of the Explanatory Memorandum that the “no useful sight for orientation purposes” test was being considered against the ability “to safely negotiate their way when out of doors”. This fits in with

Judge Bano’s comment that:

“it may equally be difficult to see why entitlement to a benefit which is concerned with mobility out of doors leaves out of account the claimant’s visual acuity in an outdoor environment.” 32. There is a reference to RP in Annex C to the Explanatory Memorandum in the comments on the consultation response by Elizabeth Felon, where the DWP’s Response is: “We acknowledge that people with less severe visual impairments may have difficulties when out of doors. The lower rate mobility component of DLA remains available to those people who require guidance or supervision when out of doors in unfamiliar places.”
I note the comment, but I do not consider that it has considered or addressed the question of whether or not the fixed measurement provided for in the regulation might be discriminatory. The Memorandum at § 23 “Equality and Diversity” refers to the Impact Assessment published alongside the Welfare Reform Bill at Annex D. This suggests at § 432 (page 529) that:
“extending the higher rate of mobility to people with severe sight loss is unlikely to amount to unlawful discrimination …. The change means that other less severely sight impaired people and other disabled people with similar problems out of doors will not gain from this measure. This may risk that the Government will appear to be failing to promote equality of opportunity for disabled people . However we believe that treating the most severely sight impaired people more favourably is justifiable to: (sic) enable them to get around more easily; promote choice and control around how much their mobility needs are met; expand their opportunities for social engagement; and to reduce barriers to entering or remaining in employment”. [underlining in the document] In context this is again referring to the ability to get around out of doors. 33. The Explanatory Memorandum to The Social Security (Disability Living Allowance)(Amendment) Regulations 2010 No. 1651 (page 126) that was laid before Parliament states at paragraph 6 that as the instrument is a negative resolution that no ECHR statement is required, which suggests that the ECHR implications were not considered. At § 7.4 it states: “7.4 This amendment extends the “deeming provisions” to allow prescribed categories of severely visually impaired people to gain access for the first time to the higher rate mobility component of DLA. The change acknowledges that people with the most severe forms of sight loss, such that they have no useful sight for the purposes of independently getting out and about even in familiar environments, face additional, mobility-related costs. The intention is that this change will allow severely visually impaired people greater freedom to participate in social activities, get out and about and to work where that is an option. 7.5 The two categories of severe visual impairment specified in the Regulations represent a sub-group of those who have been certificated by a consultant ophthalmologist as being severely sight impaired (blind). People who have been certificated as being severely sight impaired, but who do not fall within the ambit of this measure, are excluded on the basis that they will have sufficient vision to enable them to be independently mobile in familiar places. These people will continue to be entitled to the lower rate mobility component where applicable.” 34. In my opinion that the Explanatory Memorandum for the SSAC makes clear that the amendment is directed towards mobility out of doors. There is nothing to suggest that the Secretary of State has really addressed the situation where a person might have a better visual acuity indoors compared to their visual acuity outdoors. Further in the Explanatory Memorandum for Parliament specifically refers to “ The change acknowledges that people with the most severe forms of sight loss, such that they have no useful sight for the purposes of independently getting out and about” making it clear that the change is directed towards people who have no useful sight for getting out an about. The next paragraph refers to the group that is excluded namely those who “will have sufficient vision to enable them to be independently mobile in familiar places.”
The claimant and MS are people who have no useful sight when out of doors and do not have “sufficient vision” to be independently mobile in familiar places – in context familiar places out of doors. 35. In these circumstances I consider that from the material available that the Secretary of State has not really addressed the situation that arises in this appeal or that arose in the MS appeal decided by Judge Bano. If the matter was not properly addressed, I cannot see that the Secretary of State can claim that the discrimination is objectively and reasonably justified however wide the margin of discretion. Separately, it is my opinion that where there is a group of individuals whose visual acuity outside is comparable with a group whose visual acuity is less than 6/60 both inside and outside, that it cannot be objectively or reasonably justified to treat them differently in regulations whose objective is to benefit people with “ no useful sight for the purposes of independently getting out and about” out of doors. 36. I consider that the justification that has been put forward in this case for the Secretary of State is an attempt to justify the policy as a whole, rather than to try and justify the exclusion of persons such as the claimant from a right to claim the higher rate of the mobility component – see comments by Laws LJ at § 62 in MA . 37. I therefore hold that regulation 12(1A) has no reasonable or objective justification and is accordingly ultra vires . Section 3(1) of the Human rights Act 1998 38. Section 3(1) provides that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” The Secretary of State submitted under reference to Ghaidan v Godin-Mendoza [2004] 2 AC 557 at §s 33 and 121 that the regulation was so clear in its reference to “visual acuity measured on the Snellen Scale”, that it could not be read in a way that allowed some other assessment, such as the tribunal had made by accepting external evidence of what the claimant’s visual acuity might be out of doors. 39. I agree with the Secretary of State that the regulation cannot be read in a manner that is compatible with convention rights. Regulation 12(1A(c)(ii) is quite clear that “references to visual acuity are references to visual acuity measured on the Snellen Scale”. To read into that a provision “or as may be assessed by the decision maker” would be to legislate and that goes beyond trying to read the regulation in a manner that is compatible with convention rights. Did the Secretary of State comply with the equality duty 40. The regulation came into effect prior to the coming into force of the Equality Act 2010 and so the equality duty that applies arises from the Equality Act 2006 and links back to the Disability Discrimination Act 1995. The Secretary of State submitted (§s 42 – 44) that section 49A of the DDA 1995 applied and referred to other provisions of the 2006 Act. The submission was that having regard to the Explanatory Memorandum it could be seen that the Secretary of State did have “due regard” to the duties and all he was required to do was have “regard” to those duties. 41. For the reasons given above it is my opinion that that the Secretary of State has not really addressed the situation that arises in this appeal or that arose in the MS appeal. In those circumstances, I consider that there was an equality duty to have regard to the discrimination that arises in the circumstances of this case. While it might be a fairly narrow situation, as the regulation was directed towards bringing in an additional entitlement for persons with a severe visual impairment out of doors, I consider that there was a duty to have regard to the group of persons, like the claimant and MS , whose visual acuity outdoors is worse than it is indoors. As that was not done, as I have held, I therefore consider that the Secretary of State has not complied with the equality duty. 42. I therefore hold that the regulation is separately ultra vires , because it was enacted without regard to that equality duty. Outcome of the appeal 43. The Secretary of State submitted that if I were to hold that the regulation was ultra vires that would not benefit the claimant. Until the amending regulation was introduced a visually impaired person who could walk was only entitled to the lower rate of the mobility component. Regulation 12(1A) was the “door” to the higher rate. If I held that the regulation was ultra vires then it was as if it had never been enacted, unless it could be read as compatible under section 3(1) of the HRA 1998. 44. With regret I agree with the Secretary of State. I have held that the regulation cannot be construed in a manner that is compatible, in circumstances where I have held that the regulation to be ultra vires . I have not made a formal decision that the regulation is a nullity, because I do not have a jurisdiction to reduce or set the regulation aside and there are undoubtedly claimants who qualify for the higher rate of the mobility component under the regulations as they stand. It is therefore for the Secretary of State to consider what action should be taken to amend the regulations so as not to discriminate against persons such as the claimant in this appeal. 45. In these circumstances the claimant has no entitlement to the higher rate of mobility component. Accordingly the appeal has to be allowed and the decision of the tribunal set aside. I hold that the claimant is only entitled to the lower rate of mobility component. Further ground of appeal by claimant 46. Late on in the hearing the claimant’s representative said that in any event I should sent the appeal back to the tribunal to be considered under Regulation 12(1)(a)(b) on the grounds that the photosensitivity made the claimant’s eyes so painful that any walking was with “severe discomfort”. 47. I am not prepared to consider that suggestion at this late stage in the process. There is nothing in the papers to suggest that it was ever raised before the tribunal and there is nothing to suggest that in the exercise of their investigatory function the tribunal ought to have been alerted to considering a claim on this basis. I therefore will not consider sending the appeal back to the tribunal on this basis. 48. That is not to say that the claimant could not ask for the decision to be superseded again on the basis that walking out of doors with her eye condition is limited through “severe discomfort”. In saying that I am not to be taken to make any comment on the prospects of such a claim (Signed) Sir Crispin Agnew of Lochnaw Bt QC Judge of the Upper Tribunal Date: 7 February 2014

Cited in 2 later judgments