R (Carson) v Secretary of State for Work and Pensions

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLord Justice Laws,Lord Justice Rix,Lord Justice Simon Brown
Judgment Date17 Jun 2003
Neutral Citation[2003] EWCA Civ 797
Docket NumberCase Nos: C/2002/1189 & C/2002/0712

[2003] EWCA Civ 797

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

1. MR JUSTICE STANLEY BURNTON (CARSON)

2. MR JUSTICE WILSON (REYNOLDS)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Simon Brown

Lord Justice Laws and

Lord Justice Rix

Case Nos: C/2002/1189 & C/2002/0712

Between:
Carson
Claimants
Reynolds
and
The Secretary of State for Work and Pensions
Respondent

Mr Richard Drabble QC, Miss Helen Mountfield and Mr Murray Hunt (instructed by Thomas Eggar) for the 1 st Claimant (Carson)

Mr Gill QC and Mr R De Mello (instructed by J M Wilson) for the 2 nd Claimant (Reynolds)

Mr John Howell QC and Mr Jason Coppel for (Carson)

Mr John Howell QC and Mr James Eadie for (Reynolds) (instructed by The Secretary of State for Work and Pensions) for the Respondent

Lord Justice Laws

INTRODUCTORY

1

These two appeals raise important issues concerning the impact of provisions contained in the European Convention on Human Rights ("ECHR") upon our municipal legislation relating to certain State benefits. The relevant articles in ECHR are 8, 14, and Article 1 of the First Protocol (to which I will refer for convenience as "Article 1P"). The benefits in question are jobseeker's allowance and income support ( Reynolds) and retirement pension ( Carson). In circumstances which I shall shortly explain, the weekly rates at which jobseeker's allowance and income support are paid are higher for persons aged 25 or over than for those between 18 and 25; and UK pensioners living abroad in certain countries (mainly but not entirely, the countries of the Old Commonwealth) do not receive the annual uprate to their pensions which is paid to pensioners living here and those living in certain other foreign jurisdictions. These facts are said to give rise to violations of Article 1P or Article 14 read with Article 1P, or ( Reynolds) Article 8 read with Article 14.

2

It is convenient at once to set out the material ECHR provisions. Article 8 provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Article 14:

"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."

Article 1P:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law…"

THE OUTLINE FACTS AND THE DOMESTIC LEGISLATION

3

What follows here is an account of the basic primary facts in each case, and the applicable domestic legislation. There are other important factual matters which it will be more convenient to set out when I have described the nature of the legal challenge in each case, and come to confront its merits.

Reynolds

4

The appeal is from the decision of Wilson J given in the Administrative Court on 7 th March 2002, when he dismissed Ms Reynolds' claim for judicial review. Sedley LJ granted permission to appeal, limited as I shall explain to certain grounds only, on 1 st July 2002.

5

Ms Reynolds was born on 9 th November 1976. She has a son who was born on 9 th June 2001. After leaving school she was in paid employment until she was made redundant on 12 th October 2000, and during that period national insurance contributions were paid by her employers on her behalf and by herself. On 24 th October 2000 she applied for jobseeker's allowance, and was notified by letter of 14 th November 2000 that she qualified by virtue of her class 1 national insurance contributions. There are two kinds of jobseeker's allowance. " JSA(C)" is contributions-based. " JSA(IB)" is income-based. Ms Reynolds satisfied the conditions for both, but was paid JSA(C) only: in her particular circumstances she was not entitled to any greater sum by way of JSA(IB). As she was a single claimant in the age range 18 – 24, she was paid at the rate of £41.35 per week. Had she been 25 or over, she would have received £52.20 per week. It is important to notice that, as regards JSA(C), a person's contributions do not in whole or in part constitute a fund from which the benefit is later paid. It is a contributory benefit only in the sense that the payment of sufficient contributions is a condition of entitlement.

6

As from 12 th January 2001 Ms Reynolds was considered to be incapable of working because of difficulties which she suffered relating to her pregnancy. Accordingly from that date up to the birth of her baby (as I have said on 9 th June 2001) she received income support rather than jobseeker's allowance, but at the same rate. Between 24 th October 2000 and 9 th June 2001 Ms Reynolds received housing benefit and council tax benefit in addition to the successive payments of jobseeker's allowance and income support. She also received a maternity allowance for about the final three months of pregnancy. Her case on the facts was and is that she was subjected to severe hardship by virtue of the low rate of benefit which she got. Her evidence is that because she had to pay about £20 per week for gas and electricity and to repay a loan at the rate of £10 per week, she was constrained to borrow £4 or £5 per week from her mother and to eat twice a week at her mother's house in order to make ends meet at the most basic level. Moreover she suffered from an under-active thyroid gland and asthma; she had to take iron and vitamin tablets to help with her anaemic condition; when she was pregnant she discovered that she could not get free milk tokens; she was not entitled to claim Social Fund or other hardship payments.

7

In relation to JSA(C), the difference in treatment on the basis of age is authorised by s.4(1) of the Jobseekers Act 1995 and by regulation 79 of the Jobseeker's Allowance Regulations 1996. S.4(1) provides:

"In the case of contribution-based jobseeker's allowance, the amount payable in respect of a claimant ('his personal rate') shall be calculated by –

(a) determining the age-related amount applicable to him; and

(b) making prescribed deductions in respect of earnings and pension payments.

(2) The age-related amount applicable to a claimant, for the purposes of sub-section (1)(a), shall be determined in accordance with regulations."

Regulation 79 provides:

"(1) In the case of contribution-based jobseeker's allowance, the age-related amount applicable to a claimant for the purposes of section 4(1)(a) shall be –

(a) in the case of a person who has not attained the age of 18 [£31.45] per week;

(b) in the case of a person who has attained the age of 18 but not the age of 25, [£41.35] per week;

(c) in the case of a person who has attained the age of 25 [£52.20] per week."

8

There is like provision relating to JSA(IB) which however I need not set out. As regards income support I can summarise the position as the judge did at paragraph 9 of his judgment. Ss. 124(4), 135(1) and 137(1) of the Social Security Contributions and Benefits Act 1992 taken together provide that the amount of any income support should be such as was determined in accordance with regulations. Regulation 17(1) of and Schedule 2 to the Income Support (General) Regulations 1987 provide that a single claimant to income support aged not less than 18 but less than 25 should receive (in the absence of any income) a sum which in April 2000 rose to £41.35, whereas such a claimant aged not less than 25 should receive a sum which then rose to £52.20. Ms Reynolds' essential case is that in relation to the amount of her benefit she is a victim of discrimination contrary to ECHR Article 14 read with Article 1P, because she is less favourably treated than a benefit claimant, otherwise in like case with herself, who is over 25.

Carson

9

The appeal is from the judgment of Stanley Burnton J given in the Administrative Court on 22 nd May 2002, when he dismissed Ms Carson's claim for judicial review. Permission to appeal was granted by the judge below, as I understand it without limitation to any particular issue or issues.

10

Ms Carson spent most of her working life in England, and while she was employed she and her employer, and while she was self-employed she alone, paid full national insurance contributions. I should say that just as with JSA(C), the contributions do not in whole or in part constitute a specific fund from which the pension is later paid: the benefits are paid out on what has been called a "pay as you go" basis, from a notional fund topped up as required by grants from the Exchequer. Ms Carson has been resident in South Africa since 1990. When she was working in South Africa she paid voluntary contributions to protect her right to a UK State pension. She began to draw her pension in September 2000. She receives a British retirement pension of £103.62 per week. That is made up of a basic pension of £67.50, an additional pension (under the State Earnings Related Pension Scheme, or SERPS) of £32.17, and graduated pension of £3.95. She has not received the...

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