Francis v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Sir Peter Gibson,Lord Justice Moore-Bick,Lord Justice Auld |
| Judgment Date | 10 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1303 |
| Date | 10 November 2005 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2005/0093 |
[2005] EWCA Civ 1303
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOCIAL SECURITY COMMISSIONERS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Auld
Lord Justice Moore-Bick and
Sir Peter Gibson
Case No: C3/2005/0093
Miss Nathalie Lieven (instructed by Public Law Project) for the Appellant
Mr Daniel Kolinsky (instructed by Office of the Solicitor) for the Respondent
This appeal from a decision of a Social Security Commissioner raises the question whether a claimant who does not qualify for a social security benefit on the literal wording of the regulations governing entitlement to that benefit is nevertheless entitled to it with the aid of Article 14 of the European Convention on Human Rights ("the Convention").
Maternity Grant
The benefit is Sure Start Maternity Grant ("Maternity Grant"). This is a grant, currently of £500, introduced in April 2000 to provide help to mothers on low income and with new babies. Entitlement to Maternity Grant is set out in Reg. 5 of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 ("the Regulations"). This provides (so far as material):
"(1) …a payment to meet maternity expenses (referred to in these Regulations as a "Sure Start Maternity Grant") shall be made only where –
(a) the claimant or the claimant's partner has, in respect of the date of the claim for a Sure Start Maternity Grant, been awarded either income support….. or child tax credit payable at a rate higher than the family element; and
(b) either—
(i) the claimant or, if the claimant is a member of a family, one of the family is pregnant or has given birth to a child or still-born child; or
(ii) the claimant or the claimant's partner or both of them have adopted a child not exceeding the age of twelve months at the date of the claim; or
(iii) the claimant and the claimant's spouse have been granted an order in respect of a child pursuant to section 30 of the Human Fertilisation and Embryology Act 1990 (parental orders: and
(bb) …
(i) the claimant or partner has received advice on health and welfare matters relating to the child from a health professional:
….. and
(c) the claim is made within the prescribed time for claiming a Sure Start Maternity Grant."
The claim must be made in a period beginning 11 weeks before the first day of the expected week of confinement and ending 3 months after the actual date of the confinement or the date of the adoption order, in the case of an adopted child, or the date of the parental order, in the case of a child by a surrogate mother (see para. 8 of Sch. 4 to the Social Security (Claims and Payments) Regulations 1987 as amended).
The facts
The appellant is Sara Francis. She describes herself in her witness statement as a full-time mother. She is unmarried but has 3 children of her own aged between 4 and 10 and they live with her. She has an older sister who has serious health and other problems. On 6 October 2001 the sister gave birth to a boy, Q. He spent only 3 days with his mother before being taken into care and placed with a foster carer. Ms Francis started to visit Q regularly when he was 6 weeks old and she obtained a residence order under s.8 of the Children Act 1989 ("the 1989 Act") in respect of him on 15 May 2002. Before doing so she had thought about adoption but ruled it out because she wanted Q to have the opportunity to know his roots. Q has lived with her ever since the residence order. She treats Q in the same way as her own children. She has obtained Child Benefit for Q and is in receipt of Income Support.
On 19 June 2002 Ms Francis applied for a Maternity Grant. In her witness statement she says that she needed the Maternity Grant badly. She had to get a cot, furniture and baby equipment for Q.
The proceedings
It has never been in dispute that Ms Francis satisfied the conditions of Reg. 5(1)(a) (the means test) and (bb) (the requirement for professional advice to be taken). However, her claim was refused by the Decision Maker and on appeal by the Social Security Appeal Tribunal. She appealed to the Social Security Commissioner, and Mr Commissioner Williams, after issuing one adverse decision which he set aside, issued a second decision on 1 September 2004. Thereby he dismissed Ms Francis' appeal. It had been argued for her that the reference in Reg. 5 to adoption should be given a broad meaning to include a person who has a residence order for the baby in question. That was rejected by the Commissioner. It had further been argued that her claim to Maternity Grant fell within the ambit of Article 8 of, or Article 1 of Protocol 1 to, the Convention and that to exclude her from the scope of Reg. 5(1)(b)(ii) would amount to discrimination under Article 14 of the Convention. That was because there was no objective justification for her being treated differently from an adopter under the Adoption Act 1976 ("the 1976 Act"), and she was in an analogous position to an adopter. That further argument was also rejected. The Commissioner compared the statutory provisions relating to an adoption order and a residence order respectively and said that it was clear from a comparison of those provisions that the nature of a residence order was significantly more limited that that of an adoption order. He did not consider that the common ground between the position of Ms Francis, looking after Q because by the residence order the child was living with her, and the position of a natural or adoptive parent was sufficient to establish the analogous status for which she contended. He said that Ms Francis had not assumed the full parental role and he therefore did not find that she had a status or position with regard to Q such that she could claim to be the subject of discrimination from the terms of Reg. 5(1)(b).
The Commissioner granted leave to appeal to this court on the ground that an issue of general importance was raised, namely whether social security claimants with residence orders in respect of children should be treated in the same way as birth parents or adoptive parents of those children for the purposes of claiming Maternity Grant or any similar payments in respect of those children.
The arguments
Miss Nathalie Lieven for Ms Francis contends that the Commissioner erred in law in rejecting the argument that the refusal of Maternity Grant was discriminatory in breach of Article 14. She submits that (1) Maternity Grant falls within the ambit of both or either of Article 8 of the Convention (respect for family life) and Article 1 of Protocol 1 to the Convention (peaceful enjoyment of possessions), (2) for the purposes of the award of Maternity Grant Ms Francis as a person with parental responsibility for a child pursuant to a residence order was in a situation analogous to a person with parental responsibility for a child pursuant to an adoption order, and (3) no objective justification has been put forward by the Secretary of State such as would make such discrimination lawful.
On Miss Lieven's first submission Mr Daniel Kolinsky for the Secretary of State accepts for the purpose of this appeal that the facts of the present case are sufficiently close to those of Petrovic v Austria (1998) 33 EHHR 307 to come with the ambit of Article 8, but he does not accept that the facts come within the ambit of Article 1 of Protocol 1. On Miss Lieven's second submission Mr Kolinsky submits that no claim has been formulated which comes within any of the grounds for discrimination covered by Article 14, a person with a residence order having a different status from, and not being in an analogous position to, a person who has adopted a child. On Miss Lieven's third submission Mr Kolinsky submits that it is perfectly proper when dealing with social security benefits for bright line rules to be drawn up in the interests of certainty or ease of administration and that it is rational and justified for the Secretary of State to formulate rules of entitlement for a welfare benefit such as Maternity Grant which confer the benefit on persons who have one status but do not confer it on persons who have a different status.
Discussion
It is common ground that for Article 14 to apply the facts must come within the ambit of at least one of the substantive provisions of the Convention. In view of the concession by the Secretary of State that the facts do come within Article 8 it is unnecessary to resolve the dispute over Article 1 of Protocol 1.
The substantial dispute in this case is whether there has been discrimination within Article 14. The terms of the Article are:
"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."
Before I turn to the meaning of that Article I shall consider whether there was a relevant difference in treatment between Ms Francis and any comparator put forward by her. Of the three categories of person listed in Reg. 5(1)(b), that in sub-para (ii), a person who has adopted a child not exceeding twelve months at the date of the claim, is the chosen comparator.
By s.12(1) of the 1976 Act
"An adoption order is an order giving parental responsibility for a child to the adopters, made on their application by an authorised court."
By s.12(3)(a) the making of an adoption order operates to extinguish the parental...
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