SH CJSA 828 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge C. Turnbull |
| Judgment Date | 08 November 2011 |
| Neutral Citation | 2011 UKUT 428 AAC |
| Subject Matter | Human rights law |
| Respondent | Secretary of State for Work and Pensions |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CJSA 828 2011 |
| Appellant | SH |
IN THE UPPER TRIBUNAL Case No. CJSA/828/2011
ADMINISTRATIVE APPEALS CHAMBER
1. This is an appeal by the Claimant, brought with the permission of a Judge of the First-tier Tribunal, against a decision of a First-tier Tribunal sitting at Preston on 1 February 2011. For the reasons set out below I dismiss the appeal.
2. The Claimant, a man now aged 55, was an employed solicitor between 1983 and 2003, paying Class 1 national insurance contributions. From 2004 he acted as a locum solicitor on a self-employed basis, paying Class 2 and 4 national insurance contributions. On 30 April 2010 and 24 July 2010 respectively the two locum jobs which he then had came to an end, and he was therefore without employment from 24 July 2010.
3. On 15 October 2010 he claimed contribution-based jobseeker’s allowance, but by a decision made on 11 November 2010 the claim was refused on the ground that he did not satisfy the contribution conditions. That was because only Class 1 contributions, the class of contributions payable by employees, qualify for JSA purposes. Class 2 or 4 contributions, which are the classes of contributions payable by self-employed persons, do not. That is the clear result of the following provisions in the Jobseekers Act 1995:
“1(1) An allowance, to be known as a jobseeker’s allowance, shall be payable in accordance with the provisions of this Act.
(2) Subject to the provisions of this Act, a claimant is entitled to a jobseeker’s allowance if he –
………………………………
(d) satisfies the conditions set out in section 2
…………………………………..
(4) In this Act –
“a contribution-based jobseeker’s allowance” means a jobseeker’s allowance entitlement to which is based on the claimant satisfying conditions, which include those set out in section 2;
……………………………………………………………………
2(1) The conditions referred to in section 1(2)(d) are that the claimant
(a) has actually paid Class 1 contributions in respect of one (“the base year”) of the last two complete years before the beginning of the relevant benefit year and satisfies the additional conditions set out in subsection (2);
(b) has, in respect of the last two complete years before the beginning of the relevant benefit year, either paid Class 1 contributions or been credited with earnings and satisfies the additional condition set out in subsection (3)
(c) does not have earnings in excess of the prescribed amount; and
(d) is not entitled to income support.”
4. The Claimant appealed against that decision on the ground that the fact that only Class 1 contributions qualified constituted unlawful discrimination, contrary to the Human Rights Act 1998, against him as a former self-employed person. By the First-tier Tribunal’s decision now under appeal to me that appeal was dismissed. The First-tier Tribunal said the following at the end of its Statement of Reasons:
“Although Article 14 applies inter alia to welfare benefits, it does not provide an independent right and must be invoked in combination with another of the articles of the Convention. [The Claimant] has not cited any other article, nor articulated ways in which he considers the decision demonstrates the nature of the discrimination claimed within the terms of Article 14.”
5. In his application for permission to appeal to the Upper Tribunal the Claimant stated that the other Articles on which he relied in conjunction with Article 14 were Article 1 of Protocol 1 and Article 6.
6. In giving permission to appeal a First-tier Tribunal Judge commented as follows:
“The grounds of appeal raise the question of whether relying on rights under Article 1 of Protocol 1 the Appellant has been subject to discrimination under Article 14 of the European Convention on Human Rights. The assertion of discrimination is on the basis that as a self-employed earner paying Class 2 and Class 4 national insurance contributions the Appellant should be in the same position with regard to entitlement to JSA as an employed earner who has paid Class 1 national insurance contributions for the same qualifying time period as provided for by the applicable regulations. The Upper Tribunal are respectfully requested to consider this question.”
7. At the time of giving procedural directions for the making of submissions in this appeal I commented as follows:
“In the light of the decision of the European Court of Human Rights in Stec and others v United Kingdom (2006) 43 EHRR 47 it is clear that contribution based JSA is a “possession” for the purposes of Article 1 of Protocol 1 of the Human Rights Convention. The First-tier Tribunal was therefore arguably wrong in law in not considering whether the fact that self-employed people cannot qualify for contribution-based JSA is in breach of Article 14 in conjunction with Article 1 of Protocol 1 of the Human Rights Convention. The last sentence of the Secretary of State’s supplemental written submission to the First-tier Tribunal (p.27) had addressed the possibility of other Articles applying in conjunction with Article 14.
However, the condition of entitlement that Class 1 Contributions be paid is set out in primary legislation (sections 1 and 2 of the Jobseekers Act 1995) and appears to be too clear to admit of a remedy by way of interpretation. Neither the First-tier Tribunal nor the Upper Tribunal would have power to make a declaration of incompatibility under s.4 of the Human Rights Act 1998. The earliest stage at which such a declaration could be obtained, via an appeal in the tribunals system, would therefore be in the Court of Appeal. In those circumstances, would the correct route of challenge have been to apply for judicial review in the Administrative Court, which would have power to grant a declaration of incompatibility?
If the First-tier Tribunal should have entertained the merits of the appeal (i.e. breach of Article 14 in conjunction with Article 1 of Protocol 1), it should have gone on to consider whether self-employed persons are in an analogous position with employed persons, for this purpose, and if necessary whether any discrimination is objectively justified. The Secretary of State is requested to deal with those issues in his submission, at any rate in outline. If it was permissible to proceed by way of appeal, rather than judicial review, I would be minded to re-make the First-tier Tribunal’s decision, rather than remitting the matter to a fresh First-tier Tribunal.”
8. The first submission on behalf of the Secretary of State in this appeal is that Article 1 of Protocol 1 (A1P1) is not even arguably “engaged”, because the Claimant has no entitlement to JSA by virtue of primary legislation, and therefore has no proprietary interest for the purposes of A1P1. The Secretary of State relies on the following passages from paragraphs 51 and 54 of the Stec decision (emphasis added by the Secretary of State’s representative):
“51. In the modern, democratic state, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid – subject to the fulfilment of the conditions of eligibility – as of right. Where an individual has an assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding Article 1 of Protocol 1 to be applicable.
54. ……………………………………. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol 1 for persons satisfying its requirements.”
9. However, in my judgment that submission is plainly misconceived, as appears from the very next paragraph in Stec:
“55. In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question ……Although Protocol 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.” (My emphasis).
10. If the law were that a breach of Article 14 in conjunction with A1P1 cannot be made out unless the Claimant actually has an entitlement to the social security benefit in question, then no case where the effect of the allegedly discriminatory condition of entitlement is that the Claimant has no entitlement at all could ever succeed....
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