SM v Advocate General
| Jurisdiction | Scotland |
| Judgment Date | 25 June 2009 |
| Date | 25 June 2009 |
| Docket Number | No 51 |
| Court | Court of Session (Outer House) |
Court of Session
Lord Woolman
Judicial review - Social security - Refusal of component of disability living allowance - Competency of petition for judicial review - Whether competent to challenge infringement of European Convention rights at common law - Whether Human Rights Act 1998 enlarged supervisory jurisdiction of the Court of Session - Whether competent to bring judicial review proceedings for sole purpose of obtaining a declarator of incompatibility - Social Security Contributions and Benefits Act 1992 (cap 4) - Human Rights Act 1998 (cap 42), sec 4 - European Convention on Human Rights and Fundamental Freedoms, Art 14
The Social Security Contributions and Benefits Act 1992 (cap 4) provides for the payment of benefits including disability living allowance.
Section 4 of the Human Rights Act 1998 (cap 42) provides that in any proceedings where a court determined whether a provision of primary legislation is compatible with a Convention right, if the court is satisfied that the provision is incompatible with a Convention right it may make a declaration of incompatibility.
Article 14 of the European Convention on Human Rights and Fundamental Freedoms provides that the rights and freedoms set forth in the Convention shall be secured without discrimination.
JM was born in 2004 with Prader-Willi syndrome for which he requires intensive nursing and support. His parents applied for disability living allowance, paid under the Social Security Contributions and Benefits Act 1992, and which comprises a care component and a mobility component. Sections 72(1A) and 73(4A) of the 1992 Act imposes an extra requirement test, namely that the mobility component is only payable when a child reaches the age of three, the age at which the majority of children should be able to walk. Relying upon medical opinion that after the age of two, there is no objective justification for discriminating between a two-year-old and three-year-old child, JM's guardian challenged sec 73 of the 1992 Act on the basis that but for that section, JM would have been entitled to receive the mobility component when he was aged two. He claimed that sec 73 discriminated against JM on the basis of his age, without there being an objective justification for that different treatment. In consequence he alleged that there had been an infringement of Art 14 of the Convention.
At the first hearing the respondent challenged the competency of the petition, arguing that: (1) a declaration of incompatibility cannot be made by way of a petition for judicial review as it does not fall within the supervisory jurisdiction of the court; (2) a court cannot declare that primary UK legislation is incompatible with an international convention; and (3) a declaration of incompatibility cannot be made in a "standalone" action.
Held that: (1) the issue of whether sec 73 of the Social Security Contributions and Benefits Act 1992 infringed an individual's Convention rights under common law was not justiceable in the Court of Session (para 16); (2) sec 4 of the Human Rights Act 1998 enlarged the supervisory jurisdiction of the Court of Session which may now determine whether primary legislation is in accordance with the Convention and make a declaration is an appropriate case (para 22); (3) it was competent to bring a petition for judicial review for the sole purpose of obtaining a declaration of incompatibility (para 36); and objection to the competency repelled.
SM as guardian of the child JM brought judicial review proceedings in the Court of Session in respect of the refusal of disability living allowance.
Cases referred to:
Ashley v Magistrates of RothesayUNK (1873) 11 M 708; 45 J 440; 10 SLR 513
Crocket v Tantallon Golf ClubUNK [2005] CSOH 37; 2005 SLT 663; 2005 SCLR 657
Curruber's Close Proprietors v Reoch (1762) Mor 13175
DJS v Criminal Injuries Compensation Appeal Panel sub nom S v Criminal Injuries Compensation Appeal PanelSCUNK [2007] CSIH 49; 2007 SC 748; 2007 SLT 575; 2007 SCLR 502
Ghaidan v Godin-Mendoza sub nom Mendoza v Ghaidan; Ghaidan v Mendoza; Godin-Mendoza v GhaidanUNKELRWLRUNK [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 WLR 113; [2004] 3 All ER 411
Joobeen v University of Stirling 1995 SLT 120
Kaur v Lord AdvocateSCUNK 1980 SC 319; 1981 SLT 322; [1980] 3 CMLR 79
McKerr's Application for Judicial Review (Re)UNKWLRUNKDNI [2004] UKHL 12; [2004] 1 WLR 807; [2004] 2 All ER 409; [2004] NI 212
Mansfield (Earl of) v Stewart (1846) 5 Bell's App 139
Moore v Secretary of State for Scotland 1985 SLT 38
Naik v University of Stirling 1994 SLT 449
Shanks & McEwan (Contractors) Ltd v Mifflin Construction Ltd 1993 SLT 1124
West v Secretary of State for Scotland sub nom West v Scottish Prison ServiceSCUNK 1992 SC 385; 1992 SLT 636; 1992 SCLR 504
Wilson v First County Trust Ltd (No 2)UNKELRWLRUNK [2003] UKHL 40; [2004] 1 AC 816; [2003] 3 WLR 568; [2003] 4 All ER 97
Textbooks etc. referred to:
De Smith, SA, Judicial Review of Administrative Action (1st ed, Stevens, London, 1959) and (6th Woolf, Jowell and Le Sueur ed, Sweet and Maxwell, 2007)
Working Party on Procedure for Judicial Review of Administrative Action, Report to the Rt Hon Lord Emslie, Lord President of the Court of Session / by the Working Party on Procedure for Judicial Review of Administrative Action (HMSO, London, 1983)
The cause called before the Lord Ordinary (Woolman) for a first hearing, on 28 May and 14 November 2008.
At advising, on 25 June 2009-
Lord Woolman- [1] JM was born on 2 June 2004. He has a rare genetic disorder, known as Prader-Willi syndrome. He requires oxygen 24 hours a day and is fed on liquids by way of a nasal tube. In April 2005, his parents made an application on his behalf for disability living allowance ('DLA'). DLA is awarded to individuals who require assistance to lead a normal life. It is a non-contributory and tax-free benefit paid under the Social Security Contributions and Benefits Act 1992 (cap 4) ('the 1992 Act').
[2] DLA has two components. The care component is for individuals who need help being looked after, or supervision to keep them safe (sec 72). The mobility component is for individuals who have difficulties with walking (sec 73). Each component is paid at different rates, depending on the level of disability. Some people are entitled to receive one component, others may receive both.
[3] A claimant's age is relevant to DLA. Those under 16 must show that they require more assistance than someone of the same age who is not disabled: these provisions are now contained in secs 72(1A) and 73(4A). That is known as the 'extra requirement test'. There is no lower age-limit below which the care component cannot be claimed. However, the mobility component is only payable when a child reaches the age of three. The qualifying age was originally five, but it was lowered after the Secretary of State for Work and Pensions received further medical advice to the effect that the majority of children should be able to walk by the age of three (Welfare Reform and Pensions Act 1999 (cap 30), sec 67(3)).
[4] In April 2005, an application for DLA was made on behalf of JM. He received an award in respect of the care component, but was refused an award with regard to the mobility component because of his age. That decision was confirmed on appeal. It was held that JM was excluded by the unambiguous terms of the legislation. No award could be made until he reached the age of three.
[5] Subsequently, a further application for DLA was made on behalf of JM. The Secretary of State renewed the award in respect of the care component. In addition, he made an award in respect of the mobility component from JM's third birthday on 2 June 2007. I was...
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