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

CourtHouse of Lords
JudgeLORD MANCE, LORD HOPE OF CRAIGHEAD, LORD NEUBERGER OF ABBOTSBURY, LORD WALKER OF GESTINGTHORPE, LORD RODGER OF EARLSFERRY
Judgment Date22 Oct 2008
JurisdictionEngland & Wales
Neutral Citation[2009] UKHRR 117, [2008] UKHL 63

[2008] UKHL 63

HOUSE OF LORDS

Appellate Committee

Lord Hope of Craighead

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Mance

Lord Neuberger of Abbotsbury

R (on the application of RJM)(FC)
(Appellant)
and
Secretary of State for Work and Pensions
(Respondent)

Appellant:

Richard Drabble QC

Zoë Leventhal

(Instructed by Child Poverty Action Group)

Respondent:

John Howell QC

Natalie Lieven QC

(Instructed by Office of the Solicitor Department of Work and Pensions)

Intervener (Equality and Human Rights Commission) Written submissions only

Rabinder Singh QC

(Instructed by Bindmans LLP)

LORD HOPE OF CRAIGHEAD

My Lords,

1

I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Neuberger of Abbotsbury. I agree with it, and for the reasons he gives I would dismiss the appeal. I also agree with the additional observations by my noble and learned friend Lord Walker of Gestingthorpe.

LORD RODGER OF EARLSFERRY

My Lords,

2

I have had the advantage of considering the speech to be delivered by my noble and learned friend, Lord Neuberger of Abbotsbury in draft. I agree with it and, for the reasons he gives, I too would dismiss the appeal. I also agree with the additional observations of my noble and learned friend, Lord Walker of Gestingthorpe.

LORD WALKER OF GESTINGTHORPE

My Lords,

3

I have had the great advantage of reading in draft the opinion of my noble and learned friend Lord Neuberger of Abbotsbury. I agree with it and for the reasons given by Lord Neuberger I would dismiss this appeal. I venture to add only two brief comments, both based on the very helpful written submissions placed before the House by the intervener, the Equality and Human Rights Commission.

4

The first is to emphasise that for an individual to be "without accommodation" does not mean simply that he or she is homeless for the purposes of the Housing Acts (a legal classification which can include persons living in overcrowded or unsanitary accommodation). It means sleeping rough in doorways or on benches, often in a sleeping- bag or a large cardboard box, in the sort of conditions described by Baroness Hale of Richmond in R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396, para 78. Official statistics put the number of rough sleepers in England and Wales at a surprisingly low level (459 according to the Office of the Deputy Prime Minister in 2005, of whom about a quarter were in London). The amount of money saved by depriving some of these people of the disability premium is therefore relatively tiny, and the official justification for depriving them of it may seem callous. But statistics given by the intervener, in general conformity with the witness statements put in by both sides, indicate that most rough sleepers (90% of whom are men) have major health and social problems: 70% misuse drugs; 50% misuse alcohol; 39% have been in prison; 12% have been in care as children; 40% of young homeless women experienced sexual abuse as children or adolescents. These unfortunate people are unlikely to be much assisted by receiving cash-in-hand while they continue sleeping rough. Callous though it may seem, the Government is entitled to form the view that assistance should be given to them by other means. It is devoutly to be hoped that those other means are proving effective.

5

The other point on which I would comment is the expression "personal characteristics" used by the European Court of Human Rights in Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711, and repeated in some later cases. "Personal characteristics" is not a precise expression and to my mind a binary approach to its meaning is unhelpful. "Personal characteristics" are more like a series of concentric circles. The most personal characteristics are those which are innate, largely immutable, and closely connected with an individual's personality: gender, sexual orientation, pigmentation of skin, hair and eyes, congenital disabilities. Nationality, language, religion and politics may be almost innate (depending on a person's family circumstances at birth) or may be acquired (though some religions do not countenance either apostates or converts); but all are regarded as important to the development of an individual's personality (they reflect, it might be said, important values protected by articles 8, 9 and 10 of the Convention). Other acquired characteristics are further out in the concentric circles; they are more concerned with what people do, or with what happens to them, than with who they are; but they may still come within article 14 (Lord Neuberger instances military status, residence or domicile, and past employment in the KGB). Like him, I would include homelessness as falling within that range, whether or not it is regarded as a matter of choice (it is often the culmination of a series of misfortunes that overwhelm an individual so that he or she can no longer cope). The more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify. There is an illuminating discussion of these points (contrasting Strasbourg jurisprudence with the American approach to the Fourteenth Amendment) in the speech of Baroness Hale of Richmond in A L (Serbia) v Secretary of State for the Home Department [2008] UKHL 42, [2008] 1 WLR 1434, paras 20-35.

LORD MANCE

My Lords,

6

I have had the benefit of reading in draft the speeches of my noble and learned friends, Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury. There is nothing that I would wish to add to their speeches on any of the issues on this appeal except justification.

7

I have found the issue of justification difficult. In view of the conclusions reached on the other prior issues, it is for the Secretary of State to justify the discrimination which (by virtue of regulation 21 of and para 6 of Schedule 7 to of the Income Support (General) Regulations 1987 (SI 1987/1967), as amended, exists against those without accommodation ("rough sleepers") who otherwise satisfy the requirements for receipt of a disability premium contained in paras 11(a) and 12(1)((b) to Schedule 2 of the Regulations.

8

Such requirements are, in brief, that the claimant was entitled to statutory sick pay or was, or was to be treated as, incapable of work and was so either for 196 days in the case of a terminally ill claimant or for 364 days in any other case. In the case of the present claimant, the effect of the exclusion of rough sleepers is to reduce the sum that he would otherwise receive from £77.95 to the basic personal allowance of £54.65 a week payable under regulation 17(1)(a) and Schedule 2, para 1. On the face of it, to deny someone a benefit on account of his or her disability simply because he or she is without accommodation seems to involve a callous connection between two unconnected factors.

9

Similarly discriminatory treatment, in the form of an exclusion contained in regulations 12(4)(c) and 13(7)(f) of The Supplementary Benefit (Claims and Payments) Regulations 1981 ( SI 1981/1525), existed under the previous supplementary benefit scheme and appears to have been simply carried over into the present income support scheme. The exclusion was condemned in categorical terms in pp 24 and 37-38 of the 1983 and 1986 editions of a CHAR (Housing Campaign for Single People) Guide to Housing and Supplementary Benefits:

"This exclusion is grossly unfair. There is no reason why a single person sleeping rough should not receive additions for old age, baths, blindness, special diet, hospital fares, laundry, special wear and tear on clothing, or indeed any of the additional requirements which do not directly depend on the claimant having a home. There is a strong case that they require such additional payments precisely because they do not have the amenities of a home."

10

The evidence put before the court by the Secretary of State from Mr Damien Johnson, a senior executive officer employed by the Department for Work and Pensions, suggests that the discrimination was the result of a policy decision taken when the present income support scheme was introduced under the Social Security Act 1986. That appears incorrect. No fresh consideration appears to have been given in 1986 to the point, or to the objections which had been raised by CHAR, and nothing has been produced to explain the original basis upon which discrimination was thought appropriate under the previous supplementary benefit scheme. But the Secretary of State has through Mr Johnson put forward a rationale for the current approach, and it is for the court to consider whether and how far this can be said to have justified the discrimination occurring in this case in the second half of 2004.

11

The rationale is essentially two-pronged. First, the basic personal allowance is intended to cover most personal expenses. The disability premium is intended to cover additional expenses incurred by the disabled, such as additional heating costs, which, the Secretary of State considers, are less likely to be incurred by those without accommodation. Second, the Secretary of State does not wish to provide money to keep disabled people in their vulnerable position, albeit that it would potentially make that vulnerable position slightly more manageable. He prefers to target resources and assistance towards getting them out of that position, and he points to initiatives aimed at doing this.

12

In relation to the first point, the appellant correctly observes that disabled people with accommodation may not themselves incur any additional or abnormal expenses - they may for example live with family or friends or indeed squat - while...

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