Esfandiari and Others v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,Lord Justice Carnwath,Lord Justice Jacob,Lord Justice Tuckey |
| Judgment Date | 23 March 2006 |
| Neutral Citation | [2005] EWCA Civ 1258,[2006] EWCA Civ 282 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 2006 |
| Docket Number | C3/2004/2422—C3/2004/2425,Case No: C3/2004/2422–2425 |
[2005] EWCA Civ 1258
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
(MR COMMISSIONER HOWELL QC)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Buxton
C3/2004/2422—C3/2004/2425
MR RICHARD DRABBLE QC AND MR SIMON COX appeared on behalf of the Appellants
MR PHILIP SALES AND MR BEN HOOPER (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
This is an application by the respondent Secretary of State in a number of appeals from decisions of a social security commissioner, Mr Howell, QC. I do not need, in this judgment, to go in any great detail into the nature of the case; suffice it to say that the three applicants complain about a rule in the scheme for funeral payments, if I can describe it in those general terms, which prohibits the making of such payments in respect of a funeral which takes place outside the United Kingdom.
The applicants' case is that such a rule is indirectly discriminatory against them under Article 14 of the European Convention, read with any one or other of Article 8, Article 9 and Article 1 of the First Protocol.
Before the commissioner, a series of matters were debated. The Secretary of State submitted to him that the applications should fail, in whatever the English is for in limine, because Article 14 as a matter of law did not extend to cases of indirect discrimination: the discrimination in this case alleged to be that the rule excluding payments for foreign funerals operates differentially and discriminatorily against families who have comparatively recently come to this country, because it is likely that such people will be much more anxious to bury a relative abroad than would be someone who had been established in this country for a significant period of time.
The commissioner dismissed that claim in somewhat short order and, having now taken extensive advice, as we were told in the Secretary of State's evidence, the Secretary of State does not now persist in that submission.
The applicants failed nonetheless because the commissioner was not satisfied that the case fell within the ambit of any one of the Articles of the Convention that I have just set out. That is a matter that will have to be debated before this court.
We are principally concerned this morning, however, with the fact that, whether or not because he was at that stage expecting the point on direct discrimination to succeed, the Secretary of State did not seek to justify the rule, should it in fact be found to be discriminatory. That is to say that he did not adduce any evidence or argument in respect of the fifth element in Michalak. He now wishes to adduce such evidence and argument before this court, and has put in a substantial witness statement by an official in the Department for Work and Pensions, explaining why, in the Secretary of State's view, even if in terms of the Convention these rules are discriminatory, the element in them that produces that discrimination is nonetheless justified.
This application has been made very late, and indeed indication of it was given only some two or three weeks before the date for the hearing of the appeal, which indeed was supposed to be heard today. Mr Sales, for the Secretary of State, accepts that that is really wholly unsatisfactory. It is, to put it at its lowest, unfortunate that no serious consideration appears to have been given to the advisability of adducing justification arguments before the commissioner, whatever the Secretary of State's then view was, of the indirect discrimination point, and it is particularly unsatisfactory, I have to say, in the context of the management of the business of this court, that a day having been set aside today for the actual appeal to be heard, we are not able to do that, but have to consider this application. Objection to the lateness of the application and to its content, has been properly taken by Mr Drabble QC and Mr Cox, who represent the appellants.
All that said, the court has to consider what is the most proper and efficacious way of determining the issues that this application raises. The issues are undoubtedly ones of some difficulty. They extend to not merely the question of justification, but also the nature of the discrimination that is involved in this case, and to the difficult question, still to my knowledge completely unresolved, of how the court adjudicates upon the "ambit" of various Articles of the Convention, that having been a matter that engaged the commissioner.
The general view that I am minded to take is that, in a case of this sort, where we are dealing with issues that are really at the threshold of the development of Convention jurisprudence, it would be wholly unsatisfactory for the case to be determined as what would in effect be a theoretical, or moot-like, investigation with the issue of justification not being addressed.
I am, to some extent, fortified in that approach by what happened before their Lordships' House in the case of R (Williamson) v Secretary of State for Employment [2005] 2 AC 246. That was a case where there were difficult issues as to the ambit of various Articles of the Convention, and in which the Secretary of State for Education had taken a specific decision not to pursue before this court the arguments as to justification that he had pursued before the first instance judge. He then sought to reintroduce those arguments in the Court of Appeal.
Lord Nicholls of Birkenhead drew attention to that considerable procedural difficulty, but said that he would see it as unsatisfactory that the House should determine the matter without considering the justification issue. As he put it in paragraph 46:
"I am in no doubt that, despite having abandoned the justification defence in the Court of Appeal, the Secretary of State should be at liberty to raise this point again. Clearly it would be unfortunate if this important issue were left unresolved."
There is another reason why, in the circumstances at least of this case, I see difficulty in its proceeding without reference to the matter of justification.
Without going into the matter in any great detail, it is of some relevance that, in his important judgment in the case of Carson in this court, Laws LJ drew attention, in paragraph 61, to the test that he at least thought would be appropriate in determining whether a provision was discriminatory, and drew further attention to the fact that the elements that might have to be considered in answering that question overlapped in considerable terms with elements that might be adduced to address the question of justification.
In this case in particular, I think it is going to be difficult and artificial to investigate properly the issue of discrimination, which is not just a formal question, as the commissioner thought, without at the same time straying into the sort of area that is adduced in the witness statement of Miss Munt. Despite, therefore, the history, I would be minded to grant the Secretary of State permission to adduce this evidence and to amend his case in the terms set out in the respondent's notice.
The only aspect of this that has given me concern is the argument put very clearly, if I may say so, by Mr Drabble, that the court will of course be embarking upon that enquiry without the benefit of the view upon it of the commissioner. The court is reluctant, ever, to embark upon a point when it does not have the benefit of the view of the court below, and more particularly so when it is dealing with a specialist Tribunal.
I have therefore anxiously considered whether there are elements in the case that the Secretary of State now wishes to put with which this court really could not properly deal without the expert view of the commissioner. With some hesitation, I am persuaded that the sort of issues that Ms Munt adduces and which the Secretary of State wishes to rely upon would not involve this court in making judgments that it was unqualified to make because it did not have the benefit of the commissioner's view. The arguments seem to me to be ones of practicality and policy in respect of which I would have much welcomed having had Mr Howell's view on them, but which are not ones that I think the view of Mr Howell, or anybody else below, are necessarily dispositive to the extent that this court should not consider them.
I would therefore be minded to grant the major part of the application, that is to say the extension of the case on the part of the Secretary of State, and the adduction of the evidence of Miss Munt.
The Secretary of State also wants to rely on various further arguments set out in his respondent's notice, which Mr Drabble very fairly accepted, or at least I think he accepted, were of a much more orthodox nature of the sort that properly can be adduced before this court, being simply arguments of law. They also involve a change, or apparent change, in the underlying jurisprudence of the European Court of Human Rights with regard to Article 1 of Protocol 1, or at least with regard to the interaction of Article 1, Protocol 1, with Article 14, which this court would in any event have to consider, whether there was a respondent's notice or not.
I would therefore be minded to order that the Secretary of State has leave to rely upon the evidence set out in the witness statement of Miss Munt, and may have an extension of time for filing his...
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