Secretary of State for Defence v Hopkins
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Newman |
| Judgment Date | 20 February 2004 |
| Neutral Citation | [2004] EWHC 299 (Admin) |
| Docket Number | Case No: PA/11/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 February 2004 |
[2004] EWHC 299 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Newman
Case No: PA/11/2003
Miss Dinah Rose (instructed by Treasury Solicitor) for the Appellant
Mr Rabinder Singh QC and Conor Gearty (instructed by Linder Myers) for the Respondent
Mr Hopkins, the respondent, served in the RAOC between 7 th June 1956 and 28 th December 1958, when he was medically discharged in consequence of pulmonary tuberculosis. He was awarded a War Pension, and an unemployability allowance under Article 18 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 ("the SPO").
On 4 th March 2002 Mr Hopkins claimed an additional allowance pursuant to Article 18(5), which states:
"Subject to sub-paragraph (c) below, an allowance may be awarded in respect of a wife or husband or unmarried dependant living as a spouse or adult dependant at a rate not exceeding the appropriate rate specified ….".
He advanced the claim in respect of an "unmarried dependant living as a spouse", namely Ms Newman, with whom he had commenced to co-habit on 7 th September 1991, but the claim was rejected on the ground that it did not fulfil the conditions for such a claim set out in the definition in paragraph 51A of Schedule 4 of the SPO. In its material part the definition limits the availability of an award for an "unmarried dependant living as a spouse" as follows:-
"A person of the opposite sex wholly or substantially maintained by the member on a permanent bona fide domestic basis throughout the period beginning 6 months prior to the commencement of his service and continuing, where the member is disabled, up to the date of any award under this Order in respect of his disablement and, where the award is reviewed, up to the date of the review, or, where the member is dead, up to the date of his death".
Ms Newman has continued to live with Mr Hopkins since 1991 (some eleven years at the date when he applied) and still lives with him. For the purposes of this appeal it is not in dispute that she has been dependant on him since 1991 on a permanent bona fide basis, but it is clear that she did not commence the habitation six months prior to his service. Had she done so Mr Hopkins would have been entitled to an extra £43 each week. At the beginning of 1956 she was aged about 5 years.
The decision of the Pensions Appeal Tribunal ("the PAT")
The PAT found that a "strictly literal" construction of the requirements of Schedule 4 to the SPO would produce a "logically absurd" result because the requirement that the relationship should have commenced at the beginning of 1956 was, owing to the age of Ms Newman at the time, impossible for Mr Hopkins to fulfil. It concluded that Parliament "cannot reasonably have intended "the absurdity" and applying what it described as "the golden rule of statutory interpretation" (preventing an absurd result), construed Schedule 4 as requiring no more than that the couple had been living together for a period reasonable in the circumstances, in a relationship that was shown to be permanent and bona fide.
An alternative legal route for the PAT's conclusion was Article 6 read with Article 14 of the ECHR. Mr Singh QC, for Mr Hopkins, whilst not expressly disavowing the PAT's reasoning, has not attempted by argument to support it, but has argued for a similar result through Article 8 and/or Article 1 of the First Protocol (Article 1P) and Article 14.
The reasoning of the PAT can be summarised as follows:-
(1) Article 6(1) was engaged because "the discrimination affects decisions made under the War Pensions Scheme by the Secretary of State and, in particular, affects the outcome of an appeal before a Pensions Appeal Tribunal" and operates as a "fatal barrier" to the success of an appellant's case.
(2) Married and unmarried couples were to be regarded as in an analogous situation. The case of Shackell v United Kingdom, 27 th April 2000, was distinguished
(3) The Secretary of State had not sought to justify the difference in treatment.
The SPO
The SPO is expressly stated to be made under the authority of section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977. That subsection provides:
"Any power of Her Majesty, whether under an enactment or otherwise, to make provision about pensions or other benefits for or in respect of persons who have been disabled or have died in consequence of service as members of the armed forces of the Crown shall continue to be exercisable in any manner in which it may be exercised apart from this subsection and shall also be exercisable by Order in council in pursuance of this subsection; and such Order shall be made by statutory instrument and laid before Parliament after being made".
Prior to 1977 three Prerogative Instruments covered disablement and death in respect of members of the three forces: the army (the Royal Warrant), the Royal Navy (Order in Council) and the Royal Air Force (Order by Her Majesty). An uprating of pensions or any change in the entitlement conditions required amending Instruments for each Service. The legislative purpose of section 12 of the 1977 Act was to enable the powers of Her Majesty the Queen to be exercisable by a single Instrument instead of three separate Instruments for each Service of the Armed Forces.
An Order in Council made in the exercise of the royal prerogative is a form of delegated legislation but is not, contrary to the submission of Mr Singh, subordinate legislation within the meaning of the Human Rights Act 1998 ("the HRA"). It is primary legislation falling within the definition set out in section 21 of the HRA.
The SPO provides for the payment of pensions and awards to former service personnel who have suffered death or disablement due to service (Article 3) or who have been discharged from the armed forces on medical grounds (Article 3B(27)). Mr Hopkins has received payments in the nature of a disablement award in respect of pulmonary tuberculosis and chronic obstructive airways disease. It is an unemployability allowance based upon a composite assessment of 70%. A serviceman's entitlement to the allowance is based upon service and the attributability of the disability to service and not upon any contribution from the member of the forces. It is, in character, a welfare provision established for former members of the armed forces to ensure the financial security of former personnel who are unable to support themselves by working by reason of a disability attributable to service. The additional allowance under Article 18(5) has the same character and purpose. I accept the submission that the aims of the provision are no different in principle from the aims of any other social security benefit.
The PAT's Decision
The effect of Article 18(5) read together with the definition in Schedule 4 is that an additional dependant's allowance is payable to any married claimant who meets the conditions of Article 8, but it is payable to unmarried claimants in respect of a partner only where they meet the additional conditions at paragraph 51A of Schedule 4. It is plain that the legislation intended to impose the condition that cohabitation had, in order to qualify, to commence six months before the service began and that it had to continue to the date of application. Any number of circumstances might, in individual cases, prevent the condition being met, the age of the partner being but one example. The result was not absurd, although differing views might be held as to the merits or reasonableness of the condition.
The application of Article 6(1) of the ECHR is limited to situations in which some substantive legal right exists, or arguably exists, under the domestic law of a State, and in which there arises some impediment of a procedural nature limiting access to the right. Under the SPO unmarried partners have no substantive right to an Article 18(5) allowance unless the conditions are met. Article 6(1) cannot be used in order to create a substantive right which is not available under national law ( Matthews v Ministry of Defence [2003] 2 WLR 435, HL).
Mr Singh's Argument
The starting point for Mr Singh is that only certain long-term albeit unmarried relationships qualify, and the respondent's is not one of these, for reasons wholly outside his control. He could not have co-habited with Ms Newman before he began his service. Thus expressed, it echoes the sentiment of the PAT which was that he was being prevented from obtaining benefit by a requirement which it was impossible for him to meet. Neither the approach of the PAT nor Mr Singh's argument suggest that the benefit has to be available to all unmarried partners in a dependent relationship. Some restrictions are therefore to be regarded as acceptable. It is not suggested that it is acceptable to impose conditions only if they can all be met by all applicants should they choose to meet them. Again, whilst it is submitted that it is relevant that it is outside Mr Hopkins' control to qualify, it is submitted that it is irrelevant that it is within his control to qualify by marrying Ms Newman.
Following the approach suggested by the Court of Appeal in Wandsworth LBC v Michalak [2002] EWCA Civ. 271, Mr Singh submitted, by reference to the four questions which the approach involves, that:
(1) the facts fell both within the ambit of Article 8 of the European Convention of Human Rights, and Article 1 of the First...
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